DECISION This appeal is directed against a decision of the learned First Labour Court, given on 8th March, 1980 allowing the grievance petition filed by the respondent workman and directing the appellants to re-instate him in service with back benefits,
2. The facts which form the background of this appeal, shortly stated, are that the respondent, who was serving as a chargeman in the Karachi Shipyard and Engineering Works Ltd., hereinafter referred to as the 'Shipyard' was charge-sheeted in respect of an incident which occurred at the premises of the Shipyard on 30th June, 1976. On the basis of the domestic enquiry held against the respondent, wherein his misconduct is said to have been established, he was dismissed from service by the Shipyard with effect from 8th September, 1976. The respondent challenged the action taken against him by means of a grievance petition under section 25-A, I. R. O., before the learned Labour Court. The Shipyard resisted the claim of the respondent on the ground that he was found guilty of serious misconduct in a domestic enquiry, which was fairly and properly held and, therefore, there was no ground for interference with the decision of the Management the Shipyard further contended that the grievance petition was barred by limitation in that it was not filed within the period laid down in subsection (6) of section 25-A, I.R.O. This latter objection found favour with the learned Labour Court which, accordingly, dismissed the respondent's grievance petition, vide its order, dated 29th May, 1979. On appeal, this Tribunal, vide its order, dated 5th November. 1979 set aside the order of the learned Labour Court, condoned the delay in the filing of the grievance petition and remanded the case to it for decision on merits. On remand, the learned Labour Court has come to the conclusion that there was no tangible evidence to establish the charge of misconduct against the respondent. It, accordingly, has allowed the respondent's grievance petition and directed the appellant establishment to re-instate him with back benefits.
3. I have heard Mr. Masud Mirza, the learned Representative for the Shipyard, and Mr. Ali Amjad, who appeared for the respondent. The sole issue which was argued before me by the learned Representative an I the learned counsel was whether there was material in the domestic enquiry to establish misconduct on the part of the respondent workman. Before examining the evidence adduced in the domestic enquiry, I would like to set down in extenso the material part of the charge on the basis of which the domestic enquiry was held against the respondent. It consists of for heads of charges and reads as follows : "(a) That on 30th June, 1976 at about 1300 hours you illegally struck work, thereby staging illegal strike yourself and, instigating the workers under your charge to stage and participate in the illegal strike.
(b) That after the illegal strike, you formed an unlawful mob of workers and supervisors of the Foundry and led the mob to leave the work places in Foundries and to move to the main Administrative Office building.
(c) You, alongwith other members of unlawful mob staged a demonstration in front of the Administrative Block on 30th J'ine, 1976 between 1320 hours and 1500 hours.
(d) While demonstrating you also made attempts to lead the mob to gherao the Administrative Block with a view to coerce the Management to undo the action with raped to acceptance of the resignation tendered by Mr. M.A. Rashid, Ex-Manager (Metallurgy) but due to the timely arrival of the local Police the situation was controlled and no further untoward incident could take place."
4. A bare perusal of the charge-sheet makes it evident that the charges against the respondent are of very serious nature and if any of the heads of charges were to be established against him the Shipyard would be fully justified in dismissing the respondent from its service. Since the whole case hinges on the issue whether there was adequate material in the domestic enquiry to substantiate the charges a the respondent, it is necessary to examine the evidence led in the domestic enquiry for witnesses were examined in the domestic enquiry. They are (1) Mohammad Jamil (2), Khan Badshah (3), Mohammad Sadiq and (4) Mohammad Ak.Htar. Now as regards Mohammad Jamil all that he has stated against the respondent is : {{URDU TEXT}} So far as Khan Badshah is concerned, the substance of his evidence against the respondent is that ,-Bashir Ahmed was among the forefront of those persons who were going to the Administration Block and that some of the workers upon reaching the Administration Block caught hold of Bashir Ahmed and placed him on the stage where Bashir Ahmed stated : "Rashid Sahib's resignation should be taken back."
The witness admitted in cross-examination that the respondent had not criticized or abused any Officer of the Administration but expressed ignorance whether the respondent had persuaded workers to go back to work. The third witness, Mohammad Sadiq, has stated that he saw Yousuf, Akbar and Bashir alongwith a lot of other workers in the Metalling Section. He has further stated that later respondent Bashir Ahmed and certain other persons had addressed the crowd though he has not specifically stated as to what the respondent said in his address. However, in his cross- examination, he stated that Bashir Ahmed merely stated that 'Rashid Sahib's resignation should be taken back'. He has also stated that respondent Bashir Ahmed selected ten persons for discussion with the Management, where after the workers were asked by him to go back to work. The last witness, Mohammad Akhtar, has stated that Bashir Ahmed was seen by him on the stage and he asserted that the resignation of Rashid Ahmed should be taken back. He also corroborated Mohammad Sadiq about selection of ten persons for seeing the Management and discussing the matter with them.
5. The question that has to be considered is whether the above evidence establishes, firstly, that respondent Bashir Ahmed struck work, secondly, that he incited others to strike work, thirdly, that he formed an unlawful mob of workers, fourthly, that alongwith others he staged demonstration in front of the Administration Block and fifthly whether he attempted a Gherao' of the Administration Block with a view to force the Management to withdraw the accepted resignation of Rashid Ahmed.
On an examination of the evidence of the witnesses examined in the domestic enquiry I am inclined to the view that none of those charges were established in the domestic enquiry. There is not even an allegation that the respondent incited any worker to go on strike or raised any slogans or attempted to `gherao' the Administration Block, the Management or any officer of the Shipyard.
The only circumstances against the respondent are, firstly, that he was found alongwith other workers, secondly, that he went on the stage and addressed the workers and thirdly that he was choosen as one of the representatives of the workmen for discussions with the Management. Now as regards his going on the stage and addressing the workers it has been admitted by the appellant's witness, Khan Badshah, that the workers had caught hold of Bashir Ahmed and forcibly taken him on the stage. It was, therefore, not a voluntary action on the part of the respondent but he was compelled by the workmen to do what he is said to have done.
6. No doubt the respondent had stopped work during working hours and was found with the crowd of workers who were wanting to demonstrate against the resignation of Rashid Ahmed but these circumstances do not establish either that the respondent had struck work or that he incited workers to go on strike. There is a vital distinction between mere stopping of work or cessation of work and going on strike. As was pointed out by the Patna High Court in the case of Sit alpur Sugar Works Ltd., v. State of Bihar mere presence of certain workmen in the striking crowd, in the absence of any satisfactory proof of their having ceased to work or refusal to work, would not amount to their joining the strike or having struck work. The Supreme Court of India, in the case of Ghosh v. Joseph , has held that if the concerned workman joined demonstrations organised in connection with the strike or he took part in the preparation of strike his conduct cannot amount to taking part in the strike as such. In the instant case, since there is no evidence to show that the respondent acted in concert with other workmen for the purposes of cessation of work and on the other hand his plea all along has been that he was trying to persuade the workmen to go back to work, which plea finds support from the evidence of the appellant's witness, Khan Badshah, it cannot be said that the respondent went on strike much less that he incited others to go on strike.
As regards the other charges/allegations against the respondent, there is not the least evidence on record to support the same. The mere fact that the respondent had addressed the workers and voiced the view that the resignation of Rashid Ahmed should be taken back cannot be construed as establishing any of the charges against him, particularly as he appears to have been forced to address the crowd, as admitted by Khan Badshah.
7. It was finally contended by Mr. Masud Mirza that as the case was unfortunately prolonged for an unconscionably long period before the learned Labour Court there is no justification for award of full back benefits to the respondent, particularly when there is no evidence on record to show that he had not been gainfully employed elsewhere during this long period. The scheme behind the grievance petition procedure is that matter within its ambit should be disposed of expeditiously and if possible the orders should be passed by the Labour Court within one week of the filing of the grievance petition. Furthermore. There is no specific provision that in all cases where a grievance petition is allowed and the workman is ordered to be reinstated he must be awarded full back benefits for the period that he was kept out of employment. Obviously, a workman cannot be granted back benefits for the period that he was employed elsewhere. If, therefore, as in the instant case, the worker has failed to adduce evidence that he was not gainfully employed during any part of the period that he was wrongfully kept out of employment by the Shipyard, it would not be quite1 2 appropriate to grant him full back benefits, particularly when the proceedings before the learned Labour Court have been unduly delayed and dragged on for over 3 years.
8. For the foregoing reasons, while I, would concur in the decision of the learned Labour Court that the respondent be re-instated in service, but would order, in the circumstances of the case, that he should get 25% of the back benefits. (1958) 2 L L J 95 (1962) 2 L L J 615