' One Kaka Khan, who was employed as an Assistant Fitter in the Karachi Pipe Mills Ltd., the appellant herein, was dismissed from service by order of the Managing Director of the appellant- Company, dated 22nd February, 1979. The dismissal orders were passed on the basis of the domestic enquiry proceedings against Kaka Khan in which he was found guilty of misconduct falling under sub-clause (h) of clause (3) of Standing Order 15. The Karachi Pipe Mills Employees'
Union, the respondent herein, which is the C. B. A. In the appellant establishment, challenged Kaka Khan's dismissal before the learned IInd Labour Court through a grievance petition under section 25-A, I. R.
0. The appellant-Company resisted the grievance petition on the main grounds, firstly, that it was not maintainable as it had not been filed by the aggrieved worker but by the C. B. A., secondly, that no grievance notice by the aggrieved worker had been served upon the appellant establishment, as required by law, thirdly, that the jurisdiction of the Labour Court to entertain the grievance petition was barred since the dismissal orders had been issued by the Managing Director of the appellant-Company in exercise of the powers conferred on him by Article 6 of the Economic Reforms Order, 1972, and finally that the misconduct of Kaka Khan had been firmly established in a domestic enquiry wherein full opportunity was given to him to defend himself. The learned Labour Court has taken the view that the C. B. A. Is competent not only to give the grievance notice to the employer on behalf of an aggrieved workman but also to file the grievance petition on his behalf. It however, has failed to examine the contention of the appellant-Company that the .Labour Court had no jurisdiction to entertain the grievance petition as the impugned orders were passed by the Managing Director in exercise of the powers vesting in him under the Economic Reforms Order, 1972. On merits, the Labour Court has held, firstly, that neither the charge-sheet served upon Kaka Khan nor even the statements recorded in the domestic enquiry indicate what slogans were raised or what words were used by him, secondly that the possibility cannot be excluded that the workers were ventilating their genuine problems and not indulging in indiscipline or riotous and disorderly behavior, and that lastly the incident had taken place during lunch break time and hence it cannot be considered to have taken place during working hours.
2. I have heard Mr. Samiullah Khan, the learned counsel for the appellant-Company, and Mr. M. L.
Shahani for the respondent-Union. With their assistance, I have gone through the record of the case, including the proceedings of the domestic enquiry against Kaka Khan.
3. The first ground on which Mr. Samiullah Khan assailed the impugned order of the learned Labour Court was that the grievance petition was not maintainable as it had not been filed by the aggrieved worker. Kaka Khan, as required by law, but by the respondent-Union. According to the learned counsel, a grievance petition under section 25-A, I. R.
0., can be filed only by the aggrieved worker himself, or if it is filed by the C. B. A. It must have necessary authorization in this behalf from the workman. He submitted that inasmuch as no such authorization from the workman was produced or filed by the respondent Union, the grievance petition was not maintainable. I find no substance in this contention. Subsection (4) of section 25-A empowers the aggrieved worker, as well as the C. B. A. Upon the matter being brought to its notice by the aggrieved worker or his Shop Steward, to file a grievance petition before the Labour Court.
The law does not require the C. B. A. To obtain an authorization in this behalf from the aggrieved worker. It may be pointed out that a part from the specific provision in subsection (4) of section 25- A, empowering the C. B. A. To file a grievance petition on behalf of a workman, the C. B. A, in relation to an establishment or group of establishments, is entitled to represent all or any of the workmen in any proceedings, as provided in subsection (12) (a) of section 22. As such, the respondent-Union was fully competent to file the grievance petition on behalf of the aggrieved workman Kaka Khan.
The learned counsel for the appellant-Company also sought to rely upon the decision of a learned Single Judge of the Karachi High Court in the case of Sind Alkalies Ltd. v. Workers' Union, in support of his contention that the C. B. A. Is not competent to file an individual grievance petition, but the said decision is of no assistance to him. All that was held in the reported case was that the rights secured to workers cannot be enforced by taking recourse to section34, I. R.0. It was on the other hand pointed out in the said ruling that the Union (C. B A.) has been specifically granted authority to represent the workers in the matter of their individual rights under subsections (2), (3) and (4) of section 25-A.
4. It was next submitted by Mr. Samiullah Khan that since no grievance notice was served upon the appellant-Company by the aggrieved workman, the grievance petition was not maintainable, as the foundation for the taking of proceedings under section 25-A is the service of such notice upon the employer. The learned counsel conceded that not only the respondent-Union had served a grievance notice, dated 1st March, 1979, upon the appellant-Company but further the appellant- Company, by its letter, dated 3rd March, 1979, had replied to the said grievance notice. He, however, contended that the law requires that the grievance notice be given by the aggrieved workman himself, either directly or through the C. B. A. The mere fact that the grievance notice given by the respondent-Union to the appellant Company does not specifically state that it is being given on behalf of the aggrieved workman Kaka Khan cannot be construed as implying that notice was given by the respondent-Union on its own behalf and not on behalf of the aggrieved workman. The facts that the C. B. A. Had espoused the cause of Kaka Khan, had admittedly sent a grievance notice in regard to him to the appellant-Company and that Kaka Khan had appeared as a witness in the proceedings before the learned Labour Court are sufficient circumstances to conclude that1 there was sufficient compliance of the requirements of law and that the aggrieved worker Kaka Khan had served the grievance notice upon the appellant-Company through the C. B. A.
5. The main ground, however, upon which Mr. Samiullah assailed the impugned order of the learned Labour Court was that the proceedings before it were not maintainable by reason of the provisions of the Economic Reforms Order, 1972. Elaborating his arguments, the learned counsel submitted that the orders of dismissal were passed by the Managing Director of the appellant- Company in exercise of the powers vesting in him under Article 6 of the said Order and such action of his was completely protected from interference by any Court by Article 8 of that Order. The learned counsel relied, in support of his contention upon an unreported decision of a learned Single Judge of the Karachi High Court in 0. P. No, 1301, decided on 21st March, 1979. In that case, it was held that the orders of dismissal passed by the Managing Director of a takenover establishment could not be questioned before a Labour Court by reason of the bar of jurisdiction contained in Article 8 of the Economic Reforms Order, 1972. Reliance for this view was placed upon a Division Bench decision of the Lahore High Court in the case of PECO Ltd. v. Muhammad Nazir Khan. The facts in the Lahore case, however, were materially different from those of the present case. In the Lahore case, the services of a workman were merely terminated and he was informed that his services were no longer required, and further this action was taken by the Managing Director within 7 days of the coming into force of the Economic Reforms Order, 1972. The twin questions thus which fall to be considered are what is the scope of Article 6 of the Economic Reforms Order and what are the actions and orders which are protected under Article 8 of that Order. In order to appreciate and understand the contending arguments of the 2 learned counsel on these issues. It will be appropriate to set down the 2 aforesaid Articles in extenso. They read as follows:- "Article 6.-Unless in any particular case the Managing Director otherwise directs, all persons employed in, by or for the purpose of the business of the establisment by whomsoever appointed or engaged, shall continue in their respective employments on the same remuneration and other conditions of service as were applicable to them immediately before the appointment of the Managing Director of that establishment.
' Article 8.-(1) No Court, including the Supreme Court and a High Court, shall call in question, or permit to be called in question, any provision of this Order or of any rule or order made or anything done or any action taken or purporting to be made, done or taken thereunder.
(2) No Court, including the Supreme Court and a High Court, shall grant any injunction or make any order, nor any such Court shall entertain any proceedings in relation to anything done or intended or purporting to be done under this Order."
6. It will be seen that what Article 8 prohibits is the calling in question of any provision of the Order of any rule or order made or anything done or any action taken or purporting to be made, done or taken thereunder. An order or action thus must be made or taken in exercise of the powers conferred by any provision of the Economic Reforms Order in order that it should be protected from being called in question before a Court. An action or order outside the purview of the Economic Reforms Order obviously enjoys no protection. Mr. Samiullah, the learned counsel for the appellant-Company, argued that Article 6 gives unfettered powers to the Managing Director to remove any employee and such removal can be effected in any manner, including by dismissal. A bare reading of the said Article, however, makes it clear that the intention of the Legislature in enacting this Article was not to confer powers on the Managing Director, much less unfettered powers but to give protection to the employees of the taken over establishments.
They were given a categorical assurance that they would not only be continued in employment upon the take over of the establishment by the Government, but further their conditions of service as applicable to them immediately before the take over would stand protected, subject duly to the Managing Director specifically directing otherwise in any particular case. The Managing Director2 has thus been given the right not to continue the employment of any employee upon the take- over of the establishment or to continue his employment on remuneration and conditions of service different from those that were applicable to him immediately before the take-over. There, however, appears to be nothing in Article 6 or in any other provision of the Economic Reforms Order empowering the Managing Director to dismiss an employee as distinct from not continuing his services upon take over of the establishment without following the procedure prescribed by law for such dismissal, or protecting the orders of dismissal passed by him from scrutiny by the Labour Courts. There is obviously a clear distinction between not continuing an employee in service, specifically when such right or power has reference to a particular event or occurrence, and dismissal, which is severance of employment with a stigma. In my humble opinion, the scope of Article 6 is strictly limited, and it applies only to cases where upon the taking over by the Government of the Manage meat of an establishment, the Managing Director appointed by Government decides that a particular employee should not be retained in service or that the remuneration and condition of service of any employee, who is to continue in employment, should be varied. The Article, as I read it, is clearly inapplicable to cases where disciplinary action, resulting in dismissal, is taken against any employee upon charges of misconduct. It is also inapplicable to employee appointed after the taken over. A somewhat similar view has been taken by the learned Chairman of the N. I. R. C. In the case of Nazar Muhammad v. Multan Electric Supply Company, where the extent of 'hire and fire power' of Managing Director of a taken over industry has been elaborately discussed. In the instant case, admittedly, action has been taken against workman Kaka Khan under Standing Order 15. The charge-sheet, the enquiry proceedings and the second show-cause notice were issued, taken and given in accordance with the provisions of the said Order. Thus, neither the proceedings against Kaka Khan were taken under Article 6 of the Economic Reforms Order nor do they or the final action taken against him fall within its purview. As such the mere reference in the dismissal orders of Kaka Khan to the Economic Reforms Orders does not oust the jurisdiction of the Labour Courts and it was competent for the Labour Court to examine not only whether the action taken against Kaka Khan was in accordance with the Labour Laws but further whether there was adequate material against him for taking such action.
7. Mr. Shahani, the learned counsel for the respondent Union, submitted that even if the orders of dismissal in respect of Kaka Khan could some how be considered to be purporting to have been made under the Economic Reforms Order, then also they were invalid as they were mala fide, being the result of an unwhoily alliance between the Management and the office-bearers of the Union to throw out Kaka Khan from his employment by reason of his stringent criticism of the then General Secretary of the Union, Wajid Ali Khan. Apart from the fact that no such allegation was made either in the grievance notice served upon the appellant-Company or even in the grievance petition itself. It is unlikely that the respondent-Union would have no assiduously espoused the cause of Kaka Khan if he had been critical of the office-bearers of the Union. Further more, there is no tangible evidence on record to establish any mala fides on the part of the appellant-Company.
Even in the domestic enquiry no such allegation or complicity between the Management and the office-bearers of the Union was alleged. As was pointed out by Hamoodur Rehman, C. J. In the case of Federation of Pakistan v. Saeed Ahmad, "mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it.........". A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against particular class or section of the people. Mr. Shahani, the learned counsel for the respondent Union, attempted to establish mala fides. From the facts that though admittedly, besides Kaka Khan, another worker, by name Nawab Khan was also involved in the incident, action was taken only against Kaka Khan. We, however, do not know the reason why no action was taken against Nawab Khan. It may well have3 4 been that Nawab Khan had appologized to the Management for his part in the incident and his apology was accepted by the management. Be that as it may, the mere fact that no action was taken against Nawab Khan does not lead to the inference that G the action taken against Kaka Khan was mala fide, if there was adequate evidence to establish his misconduct.
8. Mr. Samiullah Khan finally submitted that the misconduct of the respondent had been established in a domestic enquiry and the Courts should be slow in interfering with decisions taken on the basis of such enquiries. The short answer to the second limb of Mr. Samiullah's contention is that subsection (5) of section 25-A, I. R. O., requires a Labour Court, while adjudicating and determining a grievance under sub- H section (4), to go into all the facts of the case. The learned Labour Court thus was not only entitled but was bound to examine the enquire proceedings and satisfy itself that they were fairly and properly conducted and that further the misconduct of the employee was established therein. In the instant case, I am of the view that the enquiry proceedings suffer from 2 infirmities. In the first place, I find that the Enquiry Officer not only cross- examined the 2 defence witnesses examined by workman Kaka Khan, but further he has indulged in lengthy cross-examination of Kaka Khan. One of the questions he has put to the defence witness, Muhammad Anwar was whether he was related to Kaka Khan, evidently in an attempt to discredit the testimony of the witness. Similarly he put it to Kaka Khan whether he had made a speech, though neither any witness had stated nor it was alleged in the charge-sheet that Kaka Khan had made a speech. This indicates that the Enquiry Officer was perhaps not an independent person but was biased against the workman. The second circumstance worthy of notice is that the Security Officer, Rafiq Khan, and Security Sergeant, Ditbar Khan, were allowed to read in the enquiry proceedings their written statements, though the said written statements do dot form part of the enquiry proceedings and were not even produced before the Labour Court. It thus cannot be said what were the contents of those written statements. Furthermore, the enquiry proceedings do not establish any misconduct on the part of workman Kaka Khan falling under Standing Order 15. While I am. Not impressed with the contention of Mr. Shahani that the incident did not take place during working hours because it took place during lunch hours, since not only the lunch hours are deemed to be a part of the working hours but further while some workmen are at lunch other workers were working in the factory, the evidence of the Security Officer, Rafiq Ahmad, and his Security Sergeant.
Dilbar Khan, does not establish misconduct on the part of Kaka Khan. All that Security Officer, Rafiq Ahmad, has stated is that the report given by him to the Management is correct. As already stated that report does not form a part of the enquiry record and it was not even produced before the Labour Court Nothing therefore. Can be said in regard to it. The only allegation that witness Rafiq Ahmad made against Kaka Khan was that he saw him in the crowd raising his hands. It is not shown how this action of Kaka Khan goes to establish the charge-sheet against him that he incited the workers to gather at the office building of the appellant establishment and raise slogans against the Management. Similarly, all that the Security Sergeant. Dilbar khan, has said is that he saw Kaka Khan and Nawab Khan raising their hands whereupon the other workers who had gathered raised slogans. Moreover, the evidence of this witness on the point of raising slogans appears to be inconsistent with that of Rafiq Ahmad who does not say anything about raising of slogans. No evidence was led to establish that it was at the instance of Kaka Khan that the workers had gathered or that he incited them to raise slogans against the Management It is not even known what slogans the workers were raising. Admittedly. Kaka Khan is not an office-bearer of the Union and hence it is not understood why the workers would gather at his instance or how he could persuade them to raise slogans against the management. It is an admitted position that the representatives of the Union were present at the occasion and according to the two defence witnesses they persuaded the workmen to go back to work. The 2 defence witnesses have denied that Kaka Khan took any part in the incident in question. They were admittedly employees of the appellant-Company at the relevant time and it is unlikely that they would have taken the risk of giving false statements in favour of Kaka Khan and thereby annoying the Management. A careful examination of the enquiry proceedings leads to the conclusion that the charges against Kaka Khan were not established. As such, the Enquiry Officer was not correct in giving a contrary opinion and advising action against Kaka Khan. The dismissal of Kaka Khan thus was not justified.
9. The upshot of the above discussion is that I find no merit in this appeal and dismiss the same. PLD 1979 Kar. 473 PLD 1980 Lab. 82 1979 PLC 250 PLD 1974 SC 151