' These are for separate appeals filed by the appellants Abdul Razzak and Abdul Karim partners of Messrs Metro Garment Industry, Karachi against the judgment of Presiding Officer, Sind Labour Court No. 3 Karachi and F. C. M. Karachi dated 5th July, 1975 passed in 4 separate complaint cases filed by Abdul Jalil, Abdul Jabbar, Muhammad Afzal and Nisar Ali, since the judgments under question were exactly similar in nature and they have been based only on a legal point, therefore, all these for separate appeals are being disposed of together by this single judgment.
2. The appellants before me had been convicted under each complaint case under section 60 of Industrial Relations Ordinance, 1969 and were sentenced to pay a fine of Rs. 2,000 each or in default to suffer R. For 3 months each.
' The admitted facts are that (1) Abdul Jalil, (2) Abdul Jabbar, (3) Muhammad Afzal and (4) Nisar All were the workers of the Metro Garment Industry, Karachi which is a partnership concern owned by the two appellants. These 4 workers were also the office-bearers of the Union in that concern of Metro Garment Industry, and there was an industrial dispute pending between the workers and Management of Metro Garment Industry, when on 9th April, 1975 the Management of the said Industry issued separate charge-sheets against the above workers and they were suspended for a period of 4 days and this suspension was continued to be extended for further period of 4 days at a time while domestic enquiry was continued against the workers. The domestic enquiry was concluded on 23rd April, 1975 and the Management continued the suspension of workers even after the conclusion of the enquiry but the Management sought permission from the Labour Court under section 47 of Industrial Relations Ordinance, 1969 for dismissing those workers on the ground of misconduct which was held to be proved by the domestic enquiry. The suspension was made by the Management from 8th May, 1975 while their application under section 57 of Industrial Retations Ordinance, 1969 was pending for consideration before the Labore Court. The complainants filed an application before the III Sind Labour Court under section 60 of Industrial Relations Ordinance of 1969 alleging that the enquiry had been completed on 23rd April, 1975, but still the accused/ appellant kept the complainant under suspension and after 8th May, 1975 the accused have put the complainant under perpetual suspension till the final disposal of the application under section 47 (2) of Industrial Relations Ordinance, 1969 and thus have violated the provisions of section 60 of the Industrial Relations Ordinance as there was no provision of suspension of any worker during the pendency of an application under section 47 (2) of the Industrial Relations Ordinance of 1969.
' The accused/appellant submitted their objections to the application complaint of the respondents and while admitting the suspension of the complainants, they pleaded that the suspension was not in violation of any law and the suspension was only till the disposal of the application filed by them under section 47 (2) of Industrial Relations Ordinance, 1969.
' In view of the position adopted by the appellants the learned Labour Court was of the view that burden was on the appellant to prove that the action taken by them was not in contravention of any provision of law. No evidence was led by the appellants and the case we decided on the basis of submissions made by the parties representatives.
3, The position adopted by the representatives of the workers was that the employer can suspend its workers only for the purpose of holding an enquiry into the alleged misconduct but after completion of an enquiry he cannot be continued on suspension andt he same amounts to depriving him of his wages and the right of work in the Factory, and consequently, the same amounted to alteration of service condition to the disadvantages of the complainant workers.
' The maid argument of the representatives of workers was that up to 1969 there was a provision for suspending the Union officials during the pendency of dispute on account of miscondct pending the consideration of application for permission of his removal before the Industrial Court or Labour Court, but after the promulgation of Industrial Relat!Ons Ordinance of 1969 there was no such provision under section 47 of the Industrial Relations Ordinance of 1969, and therefore, suspension being a punishment could not be inflicted upon the worker.
' The learned Labour Court traced the history of the Labour legislation in the country, and thereafter, had agreed with the submission of the representative of the workers.
4. Mr. Shibli learned counsel for the appellants has taken me through the labour legislation and also shown me AIR 1957 SC 33, AIR 1959 SC 923 and 1342 there, while interpreting section 33 of the Industrial Disputes Act, 1947 (XIV of 1947), it was held that suspension of a worker pending enquiry or proceedings of permission for dismissal before the Tribunal was not a punishment.
Reasoning of Indian Supreme Court was that such a suspension of a worker temporarily terminated the relationship of master and servant and if the Tribunal grants permission to the employer to dismiss the worker then the suspended contract of employment would come to an end and there would be no obligation to pay wages otherwise if permission was refused to the Management then all wages shall have to be paid to the worker by the Management from the date of suspension.
' Section 37 of the Industrial Disputes Act, 1947, is reproduced below :- "No employer shall, during the-pendency of any conciliation proceedings or proceedings before a Tribunal, in respect of any industrial dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings, nor, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be, shall during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute."
' The relevant words in this section for the purposes of the present controversy were "or otherwise punish any such workmen". Indian Supreme Court had interpreted these words to mean that suspension during the pendency of an application for permission to dismiss a workman pending before the Board or Tribunal did not amount to punishment. The above-quoted section 33 of the Industrial Disputes Act continued to remain in force in Pakistan till 1959 and thereafter, the Industrial Disputes Act was repealed and re-enacted as Indsutrial Disputes Ordinance, 1959 and section 33 was changed to section 30 with the only difference that the words "Board or Tribunal" were changed into 'Court' and last 8 words of the section 33 of Industrial Disputes Act of 1947 were omitted in 1959, but they are not relevant for or purpose and therefore, legislation in India and Pakistan in this respect continued to be almost the same till 1961 and hence, the view of the Indian Supreme Court in respect of the phrase "or otherwise punish" would be quite relevant for the purpose of interpretation of that phrase. In 1961 by Ordinance XVI of 1961, called Industrial Disputes (Amendment Ordinance, 1961) Section 30 of the Industrial Disputes Act of 1959 was reconstituted and the same reads as under:-- "(I) No employer shall, during the pendency of conciliation proceedings or proceedings before a Court in respect of an Industrial dispute or during the period between the conclusion of the conciliation proceedings and commencement of the proceedings before the Court, alter, to the prejudice of the workman concerned in such to dispute, the conditions of service applicable to them immediately before the commencement of conciliation proceedings, nor shall he-
(a) save with the permission of the Conciliation Officer, during the pendency of conciliation proceedings and the period thereafter preceding the commencement of the proceedings before the Court, and
(b) save with the permission of the Court, during the pendency of the proceedings before the Court discharge, dismiss or otherwise punish any such workmen except for misconduct not connected with such dispute.
(2) Notwithstanding anything contained in subsection (1) an officer of a Trade Union shall not, during the pendency of any proceedings or period specified in that subsection, be discharged or dismissed for misconduct not connected with the industrial dispute referred to therein except with the previous permission of the Court, but may, pending the disposal of an application to the Court for much permission, be placed under suspension.
(3) The Court shall deal with an application under subsection (2) in such summary way as it may think fit. Explanation.-In this section "an officer of a Trade Union", has the same meaning as in the Trade Unions Act, 1926 (XVI of 1926)."
' This special provision for the first time provided an embargo against discharge or dismissal of official of a Union, but the suspension during the pendency of an application for permission to discharge or dismiss a Trade Union official for misconduct was also specifically provided for and therefore, the right of the Management to suspend a worker as interpreted by the Indian Supreme Court was expressly recognised by the reconstituted section 30. This section 30 received an interpretation from a learned Judge of Lahore High Court in PLD 1972 Lah. 864, who held that Industrial Disputes Ordinance of 1959 as amended in 1961 made provision for Swenson of a worker, who was a union official during pendency of an application for permission to dismiss him on account of misconduct and he, therefore, held that such suspension was not regarded as a punishment.
5. Therefore, the interpretation of the Law as prevailing in India and Pakistan till 1961 was that mere suspension of a worker during pendency of an application for permission to dismiss him was not regarded as a punishment. Even in 1961 this right of suspension was recognised by the legislation and this position continued till 1968 when the Industrial Disputes Ordinance of i959 was repealed by West Pakistan Industrial Disputes Ordinance, 1968, where section 30 of Industrial Disputes Ordinance of 1959 was replaced by section 37 of West Pakistan Industrial Disputes Act, 1968 where a further security to the Union official was provided that the suspended Union official was to be paid 50% of his wages as subsistence allowance during the suspension, therefore, the right of the employer to suspend an employee was continued even by this section 37. However, the West Pakistan Industrial Disputes Ordinance was repealed by the Industrial Relations Ordinance, 1969 and in place of old section 37, a new section 47 made some substantial changes in subsection (2) of the previous relevant section 37 of West Pakistan Industrial Disputes Ordinance, 1968 or section 30 of the Industrial Disputes Ordinance, 1959 as reconstituted in 1961, and therefore, I will reproduce only subsection (2) of section 47 of I. R.
0. Which is relevant for or purposes and which has received the interpretation from the Presiding Officer of the Labour Court.
Section 47.-(1).................
(2) Notwithstanding anything contained in subsection (1) an officer of a registered Trade Union shall not, during the pendency of any proceedings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court."
6. It is, thus, quite apparent that the power of suspending a Union official pending the consideration of an application for his dismissal which was available to the Management from 1947 till 1961 on account of the interpretation put by the Indian Supreme Court and on account of specific legislation made in Pakistan in 1961 and enforced till 1969 was no specifically continued by the legislation as made in 1969. This omissio of the power of suspension from section 47, I. R.
0. Of 1969 has greatly influenced the Labour Court to come to the conclusion that since this power of suspension had not been continued in 1969, therefore, the Management could not exercise such power and if they did so then I amounted to otherwise punishing the worker and changing his terms and conditions.
I must say that the interpretation put by the Labour Court on section 47 of I. R.
0. Is not completely without force and it could be asserted that since the Legislature in its wisdom had not cared to continue to allow the power of suspension to the Management till pendency of an application for dismissal, therefore, suspension would, thereafter be regarded. As punishment.
However the learned Judge has ignored another principle of interpretation which is that the legislation which is penal in its nature should be strictly constructed, and therefore, section 60 of Industrial B Relations Ordinance which provided for punishment in respect of contravention of the provision of section 47 of I. R.
0. Should have been considered in such a matter that what has been specifically prohibited in section 47 should alone have been regarded as punishable, and therefore, section 47 itself should have been considered in a limited and strict sense. The learned Judge had to labour a great deal to come to the conclusion that after 1969 the suspension of union official during pendency of an application for his dismissal amounted to punishment. This legislation was a special type and it had simply not made a special provision for suspension as provided from 1%1 till 1969 but otherwise it had not stated clearly that the suspension of a Trade Union official during pendency of an application for dismissal would be regarded as punishment. It was, therefore, only implied and inferred, because of the omission that the suspension would be regarded as a punishment. I can only say that two views could reasonably be possible and it could be legitimately argued that even suspension could not be made without the permission of Labour Court while some other person could argue that since the suspension had never been interpreted as a punishment, therefore, the Legislature made no specific mention of the same powers of suspension in 1969. The protagonists of the latter view in favour of the power of suspension could rely upon an amendment effected in December, 1975 in clause (5) of Standing Order 15 of West Pakistan Standing Orders Ordinance, 1968 where the power of suspension was conferred upon an employer in respect of a union official pending an Industrial Dispute and pending the grant of permission to dismiss the employee under section 47 of I. R.
0. It can be legitimately argued that it was only an omission which had been supplied in 1975 by amending the West Pakistan Standing Orders Ordinance, 1968, and therefore, the Legislature had all along been of the view that such a suspension could be available to the employer.
7. Since, both views could be canvassed with some force, therefore, the situation was not free from difficulty and in these circumstances the benefit of doubt in respect of the interpretation of section 47 or Standing Order 15 of West Pakistan Standing Orders Ordinance, 1968 should have been allowed to the appellants. It could be bona fide impression on their part that they had the right of suspending a Union official who had been found guilty of misconduct in domestic enquiry, and therefore, it was necessary to continue the suspension as the Management had already made an application for permission to dismiss him before the Labour Court and the same was pending. Even otherwise it appeared to be rather severe upon a Management to continue employing a worker who had been found guilty of misconduct. If the said worker could be suspended during the pendency of a domestic enquiry it was all the more equitable that he should remain suspend after the domestic enquiry had found his guilty of misconduct till such time that the application by the Management for his dismissal was disposed of by the Labour Court. If the Labour Court allowed the application then there was no further obligations upon the employer but in case the Labour Court declined the request of the employer for dismissal, then of course there would have been more than ample justification to take back the suspended official and pay his wages.
8. In these circumstances, I am of the view that the appellants were entitled to benefit of doubt in respect of the interpretation put by them upon section 47 of I. R.
0., 1969 and therefore, they were not correctly convicted, and hence, their conviction is set aside and the fines if paid by them should be refunded. Conviction set aside.