M/s. Adam Sugar Mills Limited, Chishtian through this writ petition impugns the judgment dated 4.2.2011 of the Punjab Labour Appellate Tribunal, Lahore and the judgment dated 18.11.2009 of the Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, whereby Rana Tahir Pervaiz, Respondent No. 1 (hereinafter to be called the respondent) has been reinstated in service.
2. Brief facts leading to this writ petition are that services of Respondent No. 1 were terminated vide order dated 5.5.2001. He assailed the said order before the Labour Court through grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969 read with Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 on the grounds that it was illegal, void, malafide, without lawful authority, without prior permission of the Labour Court and liable to set aside. His main contentions were that having a status of worker/workman under the labour laws he was Chairman of the Employees Union (Registered)
Collective Bargaining Agent (CBA) Adam Sugar Mills Limited, Chishtian; that the said Union has raised an 'industrial dispute' under Section 26 and a 'strike notice' under Section 28 of the IRO, 1969 was also sent to the Management of the Mills and in this regard conciliation proceedings were pending before the Conciliator, Bahawalpur for settlement; that some other individual/industrial disputes under Sections 25-A and 22-A of the IRO, 1969 were also pending before the Labour Court Bahawalpur; that during the pendency of the aforenoted industrial disputes the petitioner was served with a charge sheet dated 27.12.1999 by the Mills; that the proceedings of the said charge sheet had been stayed by the Labour Court with a clear direction to the Mills that no adverse action shall be taken against him; that the Mills threatened him to withdraw the demand notice and strike notice otherwise he will be removed or dismissed from service; that he declined to accede to the desire of the Mills; resultantly the Mills issued the impugned dismissal order dated 5.5.2001 which is outcome of victimization, not sustainable in the eye of law, amounts to unfair labour practice in violation of Section 47 of the IRO, 1969 and liable to set aside. With the above assertions he prayed before the Labour Court for acceptance of the grievance petition by setting aside the impugned dismissal order dated 5.5.2001.
3. The Mills contested the grievance petition before the Labour Court with the contentions that no notice was served upon the Mills before filing the petition; that the grievance notice and the grievance petition are barred by limitation; that no guaranteed right of the respondent has been infringed; that the respondent committed gross misconduct while beating his co-worker during duty hours therefore his services were rightly terminated after due process as laid down in the Standing Orders Ordinance, 1968; that the respondent was not an office bearer of the CBA Union on account of expiry of its tenure of two years and that the said Union has ceased to exist since December, 1999; that litigation before the Labour Court and Punjab Labour Appellate Tribunal was pending regarding determination of CBA union between the respondent and other unions; that respondent's duty was supervisory in nature therefore he was not a workman.
4. Learned Labour Court after recording evidence and providing opportunity of hearing to the parties accepted the grievance petition and set aside the dismissal order dated 5.5.2001 on the grounds that the same was passed in violation of Section 47 of the IRO, 1969 as well as in violation of the injunctive order issued by the Labour Court. His reinstatement into service with back benefits was also ordered.
5. Order of the Labour Court was called in question by the Mills before the Punjab Labour Appellate Tribunal through appeal. The learned Tribunal while scanning the facts and evidence in detail dismissed the appeal maintaining the order of the learned Labour Court. Hence this writ petition.
6. Learned counsel for the petitioner Mills has focused on the following important points in this writ petition:--
(i) That the alleged industrial dispute regarding demand notice and strike notice pertaining to the year 1999 was pending with the Conciliator for settlement on 13.12.1999 when it was adjourned for conciliation meeting on 24.12.1999 with the mutual consent of the parties. Simultaneously limitation of the strike notice was also extended till 31.12.1999. Thereafter conciliation meeting never held till the issuance of charge sheet dated 27.12.1999 as well as till passing of the dismissal order of the respondent dated 5.5.2001. The Conciliator had never issued a certification of failure of conciliation.
In fact the Union had abandoned the demands by not pursuing the conciliation proceedings. The Union could have availed the option of arbitration in terms of Section 31 of the IRO, 1969 which was never opted and as such it will be deemed that no industrial dispute was pending at the time of termination of services of the respondent.
(ii)That the learned Labour Court during the pendency of grievance notice petition under Section 47 of the IRO in case No. 55/1999 titled 'Employees Union vs. G.M. Adam Sugar Mills" had decided the stay application vide order dated 2.11.2000 with the consent of the parties as per statement of the counsel for the Mills that the management of the petitioner Mills had no intention to punish any workman or member of the CBA Union without due course of law and that accordingly the Labour Court directed the management of the Mills to act in accordance with law while punishing any member or office bearers of the CBA Union.
(iii)That before passing of the impugned order of dismissal of the respondent the Mills Management had observed all the legal procedure and in this regard charge sheet was issued on 27.12.1999, notice of inquiry was issued on 4.1.2000, second show-cause notice was issued on 4.3.2000, notice for personal hearing was issued on 28.4.2001 and ultimately dismissal order was issued on 5.5.2001 after submission of the inquiry report by the duly appointed inquiry officer on proving the charge of misconduct.
(iv)That the Labour Court as well as the tribunal has failed to take into consideration the above referred lawful proceedings as well as merits of actions taken against the respondent.
7. On the other hand, the learned counsel for the respondent contended that during the pendency of the conciliation proceedings before the Conciliator the CBA Union apprehending some revengeful action from the Mills management lodged a grievance petition under Section 47 of the IRO before the Labour Court, Bahawalpur with a prayer to restrain the Mills Management from causing undue harassm ent to the Chairman and other office bearers of the Union, whereupon the Labour Court issued interim injunctive order dated 3.12.1999 directing the Mills Management not to transfer or punish any office bearer of the CBA Union without prior permission of the Court; that on 5.1.2000 on appearance of the counsel for the Mills before the Labour Court the case was adjourned to 21.1.2000 for filing of the written statement and reply to the injunction petition with a direction that in the meanwhile the Mills Management will not pass final order in the inquiry initiated against the respondent; that on 2.11.2000 during the arguments on the stay application learned counsel for the Mills made a statement that the Management has no intention to punish any workman or member of the CBA without due course of law; that with the consent of the counsel for the respondent the injunction petition was disposed of with the direction that the Management of the Mills while punishing any member or office bearer of the CBA Union will act in accordance with law; that in the meanwhile Mills Management maneuvered to procure an order dated 9.2.2002 from the Registrar of Trade Unions that instead of the union headed by Rana Tahir Pervaiz, one Mr. Tariq Javed was Chairman of the CBA Union. The said order was also assailed before the Labour Court which was suspended on 25.2.2002 and consequently the CBA Union headed by Rana Tahir Pervaiz was declared to be competent Union vide order dated 13.12.2002 issued by the Registrar of Trade Union, Lahore; that on failure of the Management to get the CBA Union headed by Rana Tahir Pervaiz annulled his services were terminated vide the impugned order dated 5.5.2001, which was challenged by the respondent before the Labour Court through a separate grievance petition in accordance with law; that the impugned order dated 18.11.2009 passed by the Labour Court and the order dated 4.2.2011 passed by the Tribunal are in accordance with law and that the instant writ petition is devoid of any merit and liable to be dismissed.
8. I have given patient hearing to the counsel for the parties and carefully gone through the record.
9. At the out-set I would like to reproduce the provision of Sections 30 and 31 of the IRO, 1969, which reads below:-- "Seca 30. Proceedings before Conciliator.--The Conciliator shall, as soon as possible, call a meeting of the parties to the dispute for the purpose of bringing about a settlement.
(2)The parties to the dispute shall be represented before the Conciliator by persons nominated by them and authorized to negotiate and enter into an agreement binding on the parties: Provided that, if in the opinion of the Conciliator, the presence of the employer or any officer of the trade union connected with the dispute is necessary in a meeting called by him, he shall give notice in writing requiring the employer or such officer to appear in person before him at the place, date and time, specified in the notice; and it shall be the duty of the employer or the officer of the trade union to comply with the notice.
(3)The Conciliator shall perform such functions in relation to a dispute before him as may be prescribed and may, in particular, suggest to either party to the dispute such concessions or modifications in its demand as are in the opinion of the Conciliator likely to promote an amicable settlement of the dispute.
(4)If a settlement of the dispute or of any matter in dispute is arrived at in the course of the proceedings before him the Conciliator shall send a report thereof to the Provincial Government together with a memorandum of settlement signed by the parties to the dispute.
(5) If no settlement is arrived at within the period of the notice of strike or lock-out, the conciliation proceedings may be continued for such further period as may be agreed upon by the parties.
See. 31. (1) If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an arbitrator. In case the parties agree, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them.
(2)The arbitrator to whom a dispute is referred under sub-section (1) may be a person borne on a panel to be maintained by the Provincial Government or any other person agreed upon by the parties.
(3)The arbitrator shall give his award within a period of thirty days from the date on which the dispute is referred to him under sub-section (1) or such further period as may be agreed upon by parties to the dispute.
(4)After he has made an award a copy thereof to the parties and to the Provincial Government who shall cause it to be published in the official Gazette.
(5)The award of the arbitrator shall be final and no appeal shall lie against it. It shall be valid for a period not exceeding two years, as may be fixed by the arbitrator." ,
10. Bare reading of sub-section (5) of Section 30 of the Ordinance ibid makes it sufficiently clear that conciliation proceedings may be continued for such further period as may be agreed upon by the parties. In this case order dated 13.12.1999 passed by the Conciliator transpires that the conciliation meeting was adjourned to 24.12.1999 with the consent of the parties and simultaneously limitation of the strike notice was also extended to 31.12.1999. It is admitted on record that the Conciliator had never issued a certificate of failure of the conciliation proceedings meaning thereby the same were pending with the Conciliator till the dismissal of the respondent vide the impugned order dated 5.5.2001. Argument of the learned counsel for the Mills that in fact the Union had abandoned the demands by not pursuing the conciliation proceedings is not substantiated through any speck of material, therefore learned counsel for the Mills is misconceived while interpreting that as such no industrial dispute was pending at the time of termination of services of the respondent. This argument of the learned counsel is devoid of any fact or law and thus repelled.
11.As regards the other argument of the learned counsel for the Mills that the respondent had alternate remedy of arbitration in terms of Section 31 of the IRO, 1969, suffice to say that the opening expression 'if conciliation fails' used in Section 31 of the Ordinance makes it crystal clear that the said option could only be exercised in case of failure of conciliation between the parties whereas in the instant case conciliation proceedings between the parties were pending and had never failed till the termination of services of the respondent. This argument of the Learned counsel for the petitioner also has no force or relevance to the facts of the instant case.
12.It is admitted on record that vide order dated 2.11.2000 passed by the Labour Court, the injunction petition was disposed of with the direction that the Mills Management will not punish any member or office bearer of the CBA Union except in accordance with law. It is also admitted on record that besides pendency of the conciliation proceedings and the grievance petition services of the respondent were terminated. At this juncture relevance of Section 47 of the Industrial Relations Ordinance, 1969 cannot be ignored at all, which is reproduced hereunder for ready reference:- "Sec.
47. Conditions of service to remain unchanged while proceedings pending.--(1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or Tribunal, as the case may be, nor shall he-- (a)save with the permission of the Conciliator, while any conciliation proceedings are pending, or (b)save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending discharge, dismiss or otherwise punish any workman except for misconduct nut connected with such dispute.
(2) Notwithstanding anything contained in sub-section (1), an officer of a registered trade union shall not, during the pendency of any proceedings referred to in sub-section (1), be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court."
Bare reading of the provision of Section 47 of the Ordinance ibid therefore transpires that respondent's services could not be terminated by the Mills through the impugned order during the pendency of the conciliation proceedings before the Conciliator as well as during the pendency of the grievance petition before the Labour Court except with prior permission of both the forums.
Argument of the learned counsel for the petitioner that procedure with regard to conduct of inquiry against the respondent was duly observed by issuing show-cause notice and notice of personal hearing is not convincing. Mere observance of procedure in inquiry does not authorize the Mills Management to violate stipulation of prior permission of the Labour Court or the Conciliator, as the case may be, as set forth in Section 47 of the IRO ibid before passing of the impugned order of termination of services of the respondent. This argument of the learned counsel for the petitioner is also devoid of any force and repelled accordingly.
13. Learned counsel for the Mills has vehemently argued that the respondent's services were terminated on the ground of `misconduct'. In this regard suffice to say that the charge of misconduct being pure question of fact requires examination of evidence within the exclusive domain of the Labour Court and the Punjab Labour Appellate Tribunal and cannot be resolved in exercise of Constitutional jurisdiction of this Court. Reliance be made upon A.R. Fargosan vs Sindh Labour Court (PLD 1985 SC 429).
14.Foregoing discussion and reasons lead me to formulate the opinion that concurrent findings of the Labour Court and the Tribunal in both the impugned orders do not suffer from any illegality, mis-appreciation of evidence or any unlawful exercise of jurisdiction. Reliance is made upon Fauji Fertilizer Company vs. Punjab Labour Appellate Tribunal, etc. (NLR 2002 Labour 41).
15.As a sequel to the above, there is no merit in this writ petition, which is dismissed leaving the parties to bear their own costs.