This is an appeal against an award of the learned Chairman of the West Pakistan Industrial Court (Northern Zone) Lahore, dated 16th August 1969. The' Impugned order was passed on an application under section 6 (8) of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance). The application was made by the five representatives of the workers of Messrs Wattan Woollen Mills Limited, Rawalpindi. They raised four demands in all.
The learned Chairman accepted partly two of the demands, namely, Demands Nos, 1 and 3, Demand No. 1, related to the re-instatement of curtain workmen, while Demand No. 3, related to the declaration that the workmen who were being treated as temporary, be declared to be permanent ones.
2. Chaudhry Altaf Hussain, the learned Advocate for the appellants raised a number of points, which I propose to dispose of separately.
3. He contended, in the first place, that the Court was not. Properly constituted. In this connection, reference may be made to section 8 of the repealed Ordinance. Under section 8 of the repealed Ordinance the Provincial Government is empowered to constitute one or more Industrial. Courts for adjudication of industrial disputes. The Court must consist Chairman and two Members to advise him. All the three have to be appointed by the provincial Government. The Members appointed for a period of One year and they are eligible for re-appointment for a further period not exceeding one year. Subsection (5) of section 8 of the repealed Ordinance is important for the consideration of the contention of the learned Advocate for the appellants. It runs as under:- "If a member is absent from any sitting of the Court or is otherwise incapable to sit as a member, the Court may function in the absence of such member, and no act; proceeding, decision or award of a Court shall be invalid merely by reason of absence of any such member from any sitting of the Court."
4. It was contended by Chaudhry Altaf Husain that the Members having been appointed prior to the promulgation of the repealed Ordinance on 8th Match 1968, and as they could not be appointed for a period of more than one year under the Ordinance of 1968, they ceased to be Members after 7 March 1969. It is true that the Members ceased to be the Members after the expiry of the period of one year from the date of the promulgation of the West Pakistan Industrial Disputes Ordinance, 1968. The objection raised is rather belated one. This objection should have been raised before the Industrial Court. If it was brought to the notice of the Industrial Court, the Court may have stayed the proceedings and may have brought it to the notice of the Government.
The appellant cannot be allowed to take advantage of this lacuna in appeal. In the second place, the provision of subsection (5) of section 8 of the repealed Ordinance, already reproduced, does not invalidate the proceedings before the Industrial Court merely because the Member was incapable to sit as a Member. At the most the want of fresh appointment of the Members made them incapable to sit as Members with the Chairman. Their incapacity to sit as Members would not invalidate the award.
5. In the second place, it was contended that the learned Chairman did not take the advice of the Members. This contention has no force. The question of taking advice would arise only if the Members were validly appointed. As it was contended by Chaudhry Altaf Husain that the Members were not legally appointed, the question of taking their advice would not arise.
6. It was urged in the third place, that the learned Advocate of the appellant was not heard orally.
The admitted position is that he had filed written arguments. At any rate, he has been given full opportunity to address me on any point that he may have addressed to the Court.
7. In the fourth place it was contended that the five representatives were not properly elected. This is a matter that relates to the conciliation proceedings and under subsection (4) of c section 6 of the repealed Ordinance it cannot be questioned. Sub--section (4) of section 6, reads as under:- "Notwithstanding anything contained in subsection (3), the validity of any conciliation proceedings shall not be called in question on the ground that the notice of strike on receipt of which the proceedings were initiated, did not conform to the provision of this Ordinance or the rules framed thereunder, or was otherwise invalid.------
8. The provision of law is very clear and I would hold that the validity of the strike notice could not be questioned before the Industrial Court.
9. In connection with the strike notice, the learned Advocate relied on the circumstance that the place where the alleged meeting is said to have been held was a pubic place and as section 141, Cr. P. C. had been promulgated by the Deputy Commissioner, the meeting could not have been held. It was also urged that the quorum was not complete. I have already held that the validity of the strike notice cannot be gone into by the Industrial Court.
10. Chaudhry Altaf Husain challenged the finding of the learned Chairman of the Industrial Court in respect bf Demand No. 3. The learned Court gave the award that all the workmen, including the weavers, who had satisfactorily completed the probationary period of three months, come within the category of permanent workmen, as such they are entitled to all the dues and facilities of permanent workmen. The learned Advocate, contended, relying on Standing Order 1(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, that the work was not of a permanent nature and, therefore, the workmen and the weavers declared to be permanent was illegal.th
11. A permanent workman "is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment."
12. The learned Advocate contended, relying on the above definition, that in order a workman may, be declared to be a permanent workman, it must be established, in the first place, that the workman is engaged on a work of a permanent nature likely to last more than nine months and in the second place that he has satisfactorily completed a probationary period of three months.
Whether a certain work is of a permanent nature or not would depend upon the circumstances and facts of each case. In the present case, Mr. Bhatti, the Secretary of the appellant --Mill admitted that since 1967, up to the time that he gave his evidence in 1969, the Mills never stopped functioning. This statement clearly implies that the work that the workmen were performing was of a permanent nature. If certainly extended for a period of over nine months. The conclusion that the workmen were permanent is irresistible. Therefore, those of the workmen, who had completed three months' probationary period, will be deemed to be permanent workmen entitled to all the facilities available to permanent workmen.
13. Chaudhry Altaf Hussain- also challenged Demand No. 3, go the ground that it cannot be an industrial disputes The learned Advocate contended that if the Management treated the workmen as temporary workmen, persons who were permanent within the meaning of Standing Order 1(b), could prosecute the Management under section 7(2) of the Standing Orders. I am clearly of the view that a dispute relating to the nature and term of employment would be an industrial dispute within the meaning of section 2(1) of the repealed Ordinance. The prosecu--tion of the Management by permanent workmen would not be suitable remedy for the permanent workmen. By prosecuting the Management could get no advantage to themselves. They cannot get gratuity, house rent and notice pay by prosecuting the Manage--ment. If the Court declares that they are permanent workmen, they will become entitled to a number of advantages, including gratuity, house rent and notice pay.
14. Lastly, the learned Advocate challenged the award in respect of Abdul Razzaq and Muhammad Aslam.
15. The learned Advocate contended in respect of Abdul Razzaq that he was not dismissed because of any other reason except that there was reduction in work and, therefore, his re- employment was justified. Chaudhry Altaf Hussain relied on the application of Abdul Razzaq himself, in, support of his contention that there was shortage of work. On the other hand, the conduct of the Management in appointing him to the same job from which Abdul Razzaq was removed would clearly; show that be was not removed from service because of shortage of work.
The award of the learned Chairman that Abdul Razzaq should be considered to be re-instated and not re-employed must be maintained.
16. So far as the award of re-instatement of Muhammad Aslam is concerned, it was contended by Chaudhry Altaf Hussain that the right of the Management to terminate the services of a workman on the ground of shortage of work cannot be disputed. It is true that the Management can terminate the services of a workman on the ground that there is no work. If, however, there is evidence to show that the services of a workman having been terminated not because of want of work, but because of some misconduct, the workman will be entitled to, a charge-sheet. In the present case, the evidence of Mr. Sami Arshad, Spinning Master of the Mill goes to show that Muhammad Aslam's services were terminated on the ground of unsatisfactory work. Muhammad Aslam was, therefore, entitled to a show-cause notice. I would maintain the award of the learned Court in respect of Muhammad Aslam. The appeal is dismissed.