DECISION These are eight appeals, for being by Messrs Amin Fabrics Ltd., to which I will refer as the Company, and for by workmen Muhammad Quraishi, Muhammad Alam, Allah Dino and Abdul Rasheed, to whom I will refer jointly as the workmen, all directed against the decision given by the learned Vlth Labour Court on 24th March, 1981, directing the re-instatement in service of the workmen but at the same time giving an option to the Company to take action against the workmen in accordance with the provisions of Standing Order 15, if the requirements of the said order could be fulfilled, and making the grant of back benefits to the workmen dependent upon the result of such proceedings.
The appeals of the Company are against the direction of the learned Labour Court for the re- instatement of the for workmen while the appeals of the workmen are directed against the granting of option to the Company to hold fresh proceedings against them under Standing Order 15 and making the award of back benefits to them dependant upon the result of such proceedings.
This order will dispose off all the eight appeals.
2. The facts of this case, briefly stated, are that the workmen, who were office-bearers of Amin Jute Mills Labour Union, were convicted by the Summary Military Court No, V, Hyderabad on 5th September, 1977, on the report of the Kotri Police, under Martial Law Order No, 3(b) read with Martial Law Regulation No, 14, for misleading the workers, creating hatred among them against the Management and inciting them to take the law in their hands and not to observe the working hours fixed by the management, and each of them was sentenced to one year's imprisonment and some stripes. In consequence of the above conviction, the Company made an application under section 47(2), I. R. 0., to the Labour Court at Hyderabad, seeking permission to dismiss the workmen, as they were office-bearers of the Trade Union in the company. The learned Labour Court, by its order, dated 24th April, 1979, granted the prayer of the company with the modification that permission was accorded to discharge the workmen and not for their dismissal. Furthermore, the permission was granted with effect from 5th September, 1977, the date of the conviction of the workmen.
Against this decision, an appeal was filed on behalf of the workmen to this Tribunal, but the same was rejected on the ground that no appeal lies against the grant of permission under section 47, I.
R. 0. Subsequently, an application was submitted, on behalf of the workmen, for the exercise by this Tribunal of its suo motu power of revision under subsection (3-a) of section 38, I. R. 0. The said application was, however, withdrawn as to the meanwhile persuant to the permission granted by the learned Labour Court, Hyderabad, the Company had discharged all the for workmen, vide their orders, dated 24th April, 1979. The orders were made to take effect from 5th September, 1977 in accordance with the permission granted by the learned Labour Court. The workmen filed separate grievance petitions before the learned Labour Court challenging the orders of their discharge. The Company raised legal objections to the maintainability of the grievance petitions in view of the permission granted by the Labour Court to discharge the workmen. These legal objections prevailed with the learned Labour Court which accordingly dismissed all the for grievance petitions of the workmen as not maintainable. Against this decision, the workmen came up in appeal to this Tribunal in the second round of litigation. By the detailed order, dated 21st July, 1980, this Tribunal allowed the appeals holding that the grievance petitions were maintainable, since the scope of the enquiry under section 47, I. R. 0.. Was limited to seeing whether a prima facie case had been made out against the workmen, and remanded the matters to the learned Labour Court for decision on merits. On remand, the learned Labour Court has given the impugned decision, which is being challenged before this Tribunal, in the third round of litigation, both by the Company and the workmen.
3. The sole point which has been argued before me in these appeals is whether the discharge of the workmen by the company was in accordance with the provisions of the Standing Orders. On the one hand, Mr. Ghulam Hassan, the learned representative of the Company, contended that this was a case of termination of services simpliciter, in accordance with the provisions of clauses (1) and (3) of Standing Order 12, though the orders were passed after obtaining permission from the learned Labour Court in view of the fact that the workmen were office-bearers of the Workmen's Union, and consequently no legal fault can be found with the orders of discharge ; while on the other hand, Mr. Wasiullah Qureshi, the learned counsel for the workmen, contended that the discharge of the workmen was for reasons of alleged misconduct, and since no proceedings as provided under Standing Order 15 were admittedly taken against the workmen the discharge orders were invalid as has been held by the learned Labour Court. He further contended that even if some how it be considered that these are cases of termination of services simpliciter then also the orders of discharge are invalid as they are in violation of the provisions of clause (3) of Standing Order 12, in that no specific grounds of terminating the services of the workmen have been given in the discharge order. In order to appreciate the respective contention; of the learned counsel it would be appropriate to refer to certain important documents which have a bearing upon these appeals. The most important of such documents are the similarly worded applications made by the company to the learned Labour Court under section 47 (2), I. R.
0., seeking permission to dismiss the workmen. The applications appear to have been made on or about the 1st month of 1977. The applications, after referring to the incident on the basis of which the workmen were convicted and sentenced by the Military Court to imprisonment and stripes, seek permission to dismiss them on the following grounds :- "That the respondent has been convicted for a period of one year as such he cannot be kept in service. The Management is not bound to wait for his return from jail as such it would not be reasonable to expect the applicant to keep his bed warm for him for such a long period. That it is the policy of the Management not to keep convicts in their service as such the respondent stands disqualified to remain in service."
It was strongly contended by Mr. Ghulam Hassan that the twin grounds upon which permission to discharge the workmen was sought were, firstly, that as the workmen had been sentenced to the long term of one year's imprisonment the Management could not be expected to keep their bed warm for such a long period, and secondly, that the policy of the Management was not to keep convicts in their service. The first ground is apparently based on the decision of this Tribunal in the case of Muhammad Ramzan v. National Motors , where it has been observed as follows :- "As I see it, however, this was not a case where the services of a workmen were terminated due to his absence without leave, rather his services had been terminated by reason of his inability to attend to his duties for a prolonged period. Obviously, a person who has been awarded one year's imprisonment would not be in a position to attend to his duties until after the expiry of his sentence or the sentence is set aside or remitted. In such cases, it will be unreasonable to expect the Management to keep the job of the workmen vacant until he serves out his sentence or otherwise is released from Jail. If the workmen has one to be a key person or holding a key post, his failure to attend to his duties may have serious repurcussions on the production and the work of the establishment. In such cases, I am of the view that right of the Management to terminate the service of the workman cannot be fettered or questioned."
The next important document to which I would like to refer is the order of discharge passed in respect of the workmen. Identical ordets of discharge were passed in respect of each of the workmen on 24th April, 1979. The discharge orders read as follows :- "Discharge from service Dear Sir, In view of the decision dated 24th April, 1979, given by Honourable VIth Sind Labour Court on or application under section 47(1) I. R. 0., 1969, the Management hereby discharge you from service with effect from 3rd September, 1977.
You are advised to collect your dues if any on any working day. Yours faithfully, for Amin Fabrics Limited. (Sd.)
(Fahim Khan)
Production Manager."
On a careful consideration of the aforesaid document and the other evidence in the case. I am of the view that the ground on which permission was sought by the Company from the learned Labour Court for the dismissal of the workmen do not constitute misconduct for the purposes of Standing Order 15 and consequently neither the provisions of clause (5) A of Standing Order 12 nor those of Standing Order 15 are applicable in the instant case. As already pointed out, the grounds on which the removal from service of the workmen was sought were, firstly, their expected prolonged absence from duties on account of their conviction and sentence, and secondly, the reluctance on the part of the Company to employ convicts. Mr. Wasiullah Qureshi, however sought to argue that subsection (2) of section 47, I. R. 0., applies only in those cases where removal from service of an office-bearer is sought on the ground of misconduct. He contended that submission by the company of an application under section 47(2), I. R. O., should be taken as a very strong circumstance suggesting', if not conclusively indicating, that the Company wanted to remove the workmen from service on the ground of misconduct. I have no quarrel with the first time of argument of Mr. Wasiullah Qureshi. However, I am unable to accept the second limb of his argument. Merely because the company sought permission from the Labour Court for the removal from service of the workmen does not mean that the removal was to be for acts constituting misconduct for the purposes of the Standing Orders. In the first place, I have already shown that1 the grounds taken by the company in its application seeking permission for the removal from service the workmen do not come within the mischief of Standing Order 15 and, secondly, it is possible that the Company may have been under the wrong impression or may have been wrongly advised that an office-bearer of the Workers' Union cannot be removed from service except with due permission of the Labour Court. Merely because a party has some misconception of the law and desires to be extra cautious does not mean that it was wanting to remove from service its employees for misconduct. In the instant case, the facts clearly show that the removal from service was not on grounds constituting misconduct for the purposes of the Standing Orders.
No doubt, the company had sought permission for the dismissal of the workmen but such permission was not granted and instead permission only to discharge the workmen was granted.It may also be mentioned that the orders of discharge of the workmen do not indicate that the workmen were being discharged with the stigma of misconduct. No doubt, the dismissal orders refer to the orders of the learned Labour Court, dated 24th April, 1979, but these orders were passed on the application of the company, which I have shown sought the removal from service of the workmen on grounds which do not constitute misconduct for the purposes of the Standing Orders.
4. Mr. Wasiullab Qureshi sought to rely upon the decision of this Tribunal in the case of Sind Rood Transport Corporation v. Abid Ali Shah , and submitted that the facts of the reported case were somewhat similar to those of the present case and consequently the decision in that case would apply to the present case also. In the reported case, the established facts were that some workers of the Sind Road Corporation were arrested for resorting to hunger strike in favour of persons who were not employees of the Corporation. The workers were thereupon tried, convicted and sentenced by the Military Court on the said charges. On the basis of their conviction and the sentences awarded to them by the Military Court they were dismissed from service by the Corporation. It was held by this Tribunal that the act of going on hunger strike by the workmen did not fall within the ambit of misconduct for the purposes of the Standing Orders and consequently punishment of dismissal could not be awarded to the Workers for the said act. It was, further held in that case that dismissal of a workman without show cause notice or affording him a reasonable opportunity of defence and without observing the formalities prescribed by law was not maintainable. The material point of difference in the instant case, however, is that the workmen have not been dismissed from service and have simply been discharged and that too without any stigma. It has been held by this Tribunal in the case of Asiatic Shipping Agency Ltd. v. Abdul Rasheed , what cases of termination of services simpliciter, without any stigma, are not governed by Standing Order 15. In the case of Muhammad Akram v. Director, Telegraphs and others , it has been held by this Tribunal that the procedure of domestic enquiry prescribed in clause (4) of Standing Order 15 is applicable only to those cases where an order of dismissal is ultimately passed.
5. That brings me to a consideration of the issue, whether the order of discharge in respect of the workmen, in the instance case complies with the requirements of clauses (1) and (3) of Standing Order 12. The essential requirements of the said clauses are, firstly, that in the case of permanent workmen they must be given one month's notice or pay in lieu of notice, secondly, that the order terminating the services must be in writing, and, thirdly, that it shall explicitly state the reasons for the action taken. The orders of discharge in the present cases fully comply with the second and third requirements in that they are in writing and explicitly state the reasons for the discharge, which is the permission D granted by the learned Labour Court by its derisory, dated 24th April, -1979. That decision, as already pointed out, is based upon the application made by the Company on 1st November, 1977. The discharge orders also appear to comply with the first requirement for valid termination of service under Standing Order 12 in that the workmen are advised to collect2 3 4 their dues. Dues in the case of permanent workmen would obviously include notice pay, as provided in clause (1) of Standing Order 12.
6. Mr. Wasiullah Qureshi also sought to make a grievance of the fact that before the orders of discharge were passed in respect of the workmen they were placed under suspension and paid suspension allowance instead of wages. In these proceedings, however, 1 cannot go into that grievance.
7. The issue whether the provisions of section 47, I. R. 0., over ride those of Standing Order 15 or whether they are subject to the provision of the said Order was not canvassed before me and consequently I refrain from commenting on this issue.
8. For the reasons discussed by me above, I would set aside the orders of the learned Labour Court and would uphold the orders of discharge of the workmen. The for appeals preferred by the Company are, accordingly, allowed while the appeals of the workmen are dismissed.
9. The amount deposited by the Company towards the back benefits of' the workmen is ordered to be refunded. 1980 PLC 780 1980 PLC 969 1981 PLC 61 1980 PLC 699