JUSTICE (R.) ABDUL HAFEEZ CHEEMA, (CHAIRMAN).---By means of this judgment I propose to dispose of the captioned two appeals and a revision petition. The appellant Mills and the respondent had challenged the judgment dated 31-10-1994 whereby the learned Punjab Labour Court No,9, Multan accepted the grievance petition filed by the respondent with half of the back benefits whereas the management had prayed for setting aside the said judgement. The respondent has also filed an application before the Labour Court No,9 at Multan for implementation of the order dated 31-10- 1994 and the revision petition has been filed by the appellant management for staying the said proceedings pending in the Labour Court.
2. The facts leading to this litigation briefly are that the Mujahid Hussain Kazmi, respondent was employed as a Time-Keeper in the appellant Mills on 24-11-1990 and was dismissed from service on the charge of misconduct and unauthorized absence on 1-8-1992. The respondent challenged his dismissal through a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 in the Punjab Labour Court No,9, at Multan. It was claimed, inter alia, that he had been maliciously dismissed due to the filing of a complaint against the Mills management. This was to the effect that they were exploiting the workers and the pays and allowances and their legitimate dues of the workmen were not being paid in full and deductions were being made arbitrarily and fraudulently. Consequently he raised his voice before the senior most Authority in the Labour Department on 25-2-1991 who ordered a probe into the matter.
3. Against this, the Mills management felt very much stung, humiliated and degraded and decided to oust the respondent at any cost levelling the following charges:--
(i) While on duty the petitioner marked attendance of 6 workers of the establishment with pay in the month of February, 1991 but did not mention this fact in the leave ledger.
(ii) That the petitioner absented with effect from 11-3-1991 and his absence was beyond 10 days.
It was alleged that the charges were fake and cooked up with a view to achieving their desired objective. There was no substance in the said charges. Neither he absented from duty nor did he play any mischief with the attendance register of the workers.
4. The appellant Mills seriously contested the grievance petition. Both the parties were required to lead their evidence. After hearing arguments and perusing the record, the learned Labour Court set aside the dismissal order and reinstated him with half of the back benefits vide order dated 31-10- 1994.
5. The appellant has impugned the judgment mainly on the ground that the order passed by the learned Labour Court was arbitrary and fanciful and against the evidence on record. A proper domestic enquiry was held and the charges were fully proved. The learned Labour Court has erroneously held that the respondent was not responsible for making wrong entries in the leave ledger. The respondent being Time Keeper was duty bound to make entries in the said ledger correctly which he intentionally avoided to give benefits to the workers which was a misconduct of serious nature on his part. The learned counsel for the respondent has refuted all these assertions of the appellant management.
6. Arguments have been heard and the entire record has been gone through very carefully and minutely.
7. The respondent appeared as P.W.3 whereas he produced P.W.1 Mr.Abid Hussain and P.W.2 Mr. Muhammad Ajmal in his support. From the appellant's side Sheikh Ghulam Rasul, Manager appeared as RW-1 and Mr. Inam Gull, Security Incharge as P.W.2 who had allegedly conducted the enquiry in this case.
8. In his very lengthy evidence the respondent Syed Mujahid Hussain Kazmi stated that sometime after joining the Mills, he came to know that the management was playing tricks with the labour force by refusing to pay them the Special Allowance of Rs,200. Apart from this the management was also deducting amounts unnecessarily and illegally from their pay and allowances. It was told to him by some of the workers that in May, 1990 pay of the workers was enhanced to the extent of Rs,100 and likewise in 1988 there was also a raise in pay but the establishment dishonestly withheld the increase and .Swallowed the amount. It was urged by the management of the Mills that whosoever would speak against these high handednesses on the part of the mills shall have to face its consequences.
9. In this situation the respondent wrote a letter to the Labour Officer, (Factories) Muzaffargarh requesting him that the record of the Mills be checked in order to ensure whether they were paying the emoluments to the workers in accordance with law. The Mills however failed to produce the record before the Labour Officer on the plea that the entire record was lying in the Head Office at Karachi. This letter is marked Exh.P-4. When the respondent thought that the Mills management was not going to accept their genuine demands, he met the Secretary, Government of the Punjab, Labour Department, Lahore and made a complaint in this respect. In pursuance of this application, Mr. Abdul Wahab Khan, Joint Director (Headquarters) for Director Labour Welfare Punjab, Lahore Directed Mr. Muhammad Shafi Malik, Joint Director Labour Welfare, D.G. Khan Region, D.G. Khan (vide Exh. P-5) to submit report for perusal of the Secretary Labour within 3 days.
10. Accordingly an enquiry was held. The enquiry officers, (one of them being Mills own Officer) endorsed the validity of the accusation against the Mills. Annoyed by all this, the management devised a plan to get rid of the respondent Kazmi and issued two charge sheets and consequently managed to oust him from service by gate closing on 13-3-1991. He also narrated the holding of the enquiry in detail and claimed that from the proceedings of the enquiry it was apparent that the Mills management was bent upon dismissing him at all costs. The other two witnesses also lent him their support.
11. Sheikh Ghulam Rasool R.W.1 was the Manager of the appellant Mills during those days. He stated that he had held the enquiry on the charges levelled against the respondent and his enquiry report was Exh.R-11. He claimed that enquiry was conducted fairly and impartially. According to his report the respondent was found guilty of the two charges levelled against him. He denied that on account of the complaint lodged against him by the respondent (Syed Mujahid Hussain Kazmi) he was inimical to him and held enquiry partially. Mr. Inam Gull, R.W.2 had also been holding enquiry against the respondent and he stated that he held the enquiry fairly and equitably. He also submitted enquiry report Exh. R-13.
12. The learned Labour Court after thoroughly going through the evidence and hearing the arguments addressed by the parties came to the conclusion that as for the charge No,1 there was no solid proof that it was done intentionally. Even otherwise, according to the Court this could only be an attempt to make a wrong entry which iS not culpable under the Industrial Relations Ordinance, 1969. More over it is also noteworthy that as per contention of the respondent, the entry made by him in the relevant column to the register was "absent from duty" but afterwards someone presumably from management side marked" on leave" after cutting the entry made by the respondent. That was why the management failed to produce the register containing the disputed entry. Had they produced the register in the evidence, the things would have been clearer.
As for, subsequent entry into the leave account register it was the duty of the Senior Time Keeper and not that of the respondent.
13. Regarding the charge of absence, it is noteworthy that in those very days he was gate closed on 13-3-1991 as such the question of his absence on 11-3-1991 onwards does not arise. Even if it be assumed, of course without conceding to be correct yet the respondent had been gate closed on 13-3-1991 whereas the charge is that he absented from 11-3-1991. This absence can only be for two days which does not come within the mischief of misconduct in terms of Standing Order 15(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
14. A survey of the entire record shows that after the induction of the respondent as Time Keeper in the appellant Mills on 24-11-1990 he had been closely watching the functioning of the Mills and had found that the management were committing unfair labour pratices with the workers. He, therefore, planned to set up a workers union with the name and style of Apollo Mills Labour Front" of which union he himself claimed to have been elected as General Secretary vide Exh.P-8. He approached the relevant Registrar of the Trade Unions for the registration of the union. The Registrar fixed 25-3-1991 as a date for holding an enquiry. In the meanwhile the respondent was dismissed on 13-3-1991 through gate closing. He had claimed 'and claimed vigorously that he was not allowed to enter the factory on 13-3-1991 and continued to make persistent requests that he may be allowed to work and join his duty. His requests however, continued to be put off on one pretext or the other. It is noteworthy that there is no valid rebuttal of this assertion from the management side.
15. Exh.P-7 is very important document which bears the signatures of Resident Director Mr. Anjum Syal for Apollo Textile Mills, Malik Muhammad Shafi, Joint Director Labour, D.G. Khan Region and Ch. Muhammad Siddique, Labour Officer qua Apollo Textile Mills showing the result of the enquiry which reads:-- "As a result of scrutiny of payment sheets of staff and workers and enquires held, the following has emerged:--
(1) The payment of Rs,100 admissible from May, 1990 has not been made for May, June and July 1990.
(2) The Management partially set-off the special allowance of Rs,200 by way of adjustment made in the salaries of a number of staff and production workers.
' The above said non-payment are unauthorized deduction within the meaning of Payment of Wages Act, 1936. The management,however, states that the said lapse(s) are not intentional, but the result of misunderstanding. The management now agrees to pay the unpaid amount mentioned at serial Nos.1 and 2 within a period of two weeks from today. In view of this position the management is directed to make the above said payment with arrears, within two weeks in the presence of Labour Officer Muzaffargarh.
' The management has also informed that the all Pakistan Textile Association has sought clarification from the Government regarding set-off of the special allowance of Rs,200 against the pay raise, etc. Already given by the management. The said clarification has not so far been received. If on clarification it is found that the set-off of Rs,200 was permissible the payment made shall be provisionally liable to be refunded."
16. Likewise Exh.P-5 is another important document which is addressed to Joint Director Labour Welfare D.G. Khang Region which reads as follows:-- "Syed Mujahid Kazmi, Time Keeper, Appolo Textile Mills Muzaffargarh appeared before the Secretary Labour on 25-2-1991 and presented the enclosed application regarding nonpayment of Special Dearness Allowance and payment of single overtime etc. On the direction of Secretary Labour, he also met the undersigned for the redressal of his grievance.
' You are hereby advised to ensure compliance of the provisions of law and submit a detailed report for the perusal of Secretary within 3 days of the receipt of this reference."
' Exh.P-4 is a letter from the Management of the Mills to the Labour Officer, Factories Muzaffargarh which shows that in pursuance of the initiation made by the respondent all this matter was sorted out and ultimately report Exh.P-7 (referred to above) was submitted which had virtually accepted non-payment of the alleged dues to the workers.
17. All these documents if read together would show and show clearly that the Mill's management was extremely annoyed with Mr. Mujahid Hussain Kazmi and they were not left with any other alternative but to get rid of him. The entire proceedings appear to be actuated by malice. The enquiry was held by the Mills Officer who could not have defied the wishes of the Mills management. The factual position appears to be that the learned Labour Court had taken a lot of pains to arrive at a correct and just conclusion and his appraisal of the evidence, scanning of the record and appreciation of the arguments is perfectly valid and legal. In this view of the matter, there is no force in appeal filed by the Mills management which is hereby dismissed. '
18. As for, the appeal of Syed Mujahid Hussain Kazmi for back benefits, it is noteworthy that this case is very old and even otherwise in view of the recession in the textile business, number of mills had reportedly been closed as such 50% back benefits were rightly granted to him. As a sequel to this, the appeal filed by the respondent is also dismissed.
19. As regards the revision petition for staying the execution proceedings for reinstatement and payment of arrears to the respondent that appears now to have become infructuous because of the fate of the original appeals as indicated above.
20. In view of the above discussion, it is ordered that the Mills management shall take him back on duty within a period of one month from the receipt of the copy of this judgment and shall also make payment of his arrears within the said period. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.