' The appellants, who was employed as Four sider in the respondent establishments, was dismissed from service, vide letter, dated 23rd February, 1980 on the charge of misbehaving with and abusing shift incharge, Abroad Khan, on 15th August, 1978 at 3-00 p.m., when the latter found fault with the condition of the machines under the control of the appellant. It may be pointed out here that as the appellant was an office-bearer of the Cofeot Textile Mills Peoples Union, which is the Collective Bargaining Agent in the Respondent establishment, and an industrial dispute bearing No, 678 of 1978, was then pending adjudication before the learned VIth Labour Court. The appellant could not be dismissed nor his service be terminated except with prior permission of the learned Labour Court. Accordingly, an application under section 47, I.R.O. Was made to the learned Labour Court for granting permission to the respondent establishment to dismiss the appellant. Before orders could be passed on this application, Industrial dispute No, 678 of 1978, was dismissed by the learned Labour Court, vide its order, dated 23rd February, 1980. Accordingly, on 27th February, 1980, the application under section 47, I.R.O., was allowed to be withdrawn by the learned Labour Court on the ground that it had become infructuous by reason of dismissal of Industrial Dispute No, 678 of 1978. It may further be mentioned in this connection that Mr. Wasiullah Qureshi, who appeared for the appellant in those proceedings, raised no objection to the withdrawal of the application under section 47, I.R.O. The appellant challenged the orders of his dismissal, dated 23rd February, 1980 before the learned Labour Court, which has dismissed the appellant grievance petition by its decision, given on 27th November, 1980. The learned Labour Court has dismissed the appellant's grievance application on the grounds, firstly, that there was adequate material to establish the misconduct of the appellant, and secondly, that the orders of dismissal were passed and implemented at a time when no Industrial dispute in respect of the Union of which the appellant was office-bearer was pending adjudication before any Labour Court or other authority. Aggrieved by this decision, the appellant has come up in appeal to this Tribunal.
2. Mr. Wasiullah Qureshi, the learned counsel for the appellant has not seriously challenged the finding of the learned Labour Court that the misconduct of the appellant was duly established in a domestic enquiry, which appears to have been fairly and properly conducted. A perusal of the enquiry proceedings discloses that 3 witnesses namely, Ahmad Khan, Niaz Ahmad (Four sider) and Malik Gammun (Line Jobber) were examined. All of them have fully supported the charge of misconduct and misbehaviour by the appellant and have remained unshaken in spite of cross- examination. It was obviously because of this strong material against the appellant that Mr. Wasiullah Qureshi did not challenge the findings of the learned Labour Court on the merits of the case.
3. Mr. Wasiullah Qureshi, however, strongly urged that the orders of dismissal in respect of the appellant are in contravention of the provisions of section 47, I.R.O. His contention was based on 2 alternate grounds. His first contention was that though the orders of dismissal purport to have been issued on 27th February, 1980 they were not served on the appellant till 5th March, 1980 when he went to the mills to collect his dues. The learned representative submitted that as the appellant had been under suspension all along he was not required and was not permitted to go to the mills and used to go only once every month to collect his suspension allowance. The precise argument of Mr. Wasiullah Qureshi was that the order of dismissal are to be deemed to have taken effect on 5th March, 1980 when they were communicated to the appellant, and that at that time, two industrial disputes, according to him were pending adjudication before that learned Labour Court, The learned Representative conceded that industrial dispute No, 678 of 1978, was dismissed by the learned VIth Labour Court on 23rd February, 1930 but submitted that an appeal against the said award was preferred to this Tribunal and by its order, passed in October, 1980 this Tribunal has set aside the orders of dismissal of the industrial dispute and remanded the case to the learned Labour Court. It was contended by Mr Wasiullah Qureshi that the setting aside of the order of the learned Labour Court implied that position as it existed before passing of the orders of dismissal of the industrial dispute was to be restored and accordingly Industrial Dispute No, 678 of 1978 should be deemed to have been all along pending adjudication. He further submitted that in addition an industrial dispute was filed by the Union of which the appellant was office-bearer on 27th February, 1980 and during the pendency of this industrial dispute also, it was not permissible for the respondent establishment to dismiss the appellant.
4. Now as regards Industrial Dispute No, 678 of 1978, it is not disputed that it was dismissed by the learned with Labour Court on 23rd February, 1980. Till this order of the learned Labour Court was set aside in appeal, the said industrial dispute admittedly was not pending in any Court. The mere fact that this Tribunal set aside the orders of the learned Labour Court, does not mean that the industrial dispute should be deemed to have been pending all along and any action taken during this period, which is covered by the provisions of section 47, I. R.
0., is this be deemed to be invalid, unless authorized by the Labour Court. A part from the fact that Mr. Wasiullah Qureshi was unable to cite any authorit in support of his contention, it may be mentioned that subsection (4) o section 41, I. R.
0., specifically provides that proceedings before Labour Court shall be deemed to have concluded on the date on which order or decision is delivered under subsection (1) of section 37,
1. R.
0. In respect of Industrial Dispute No, 678 of 1978 the award of the learned Labour Court was admittedly delivered on 23rd February, 1980. As such, it cannot he deemed to have been pending after that date until the order of remand was made by this Tribunal. Any other view of the matter would not only be unrealistic but also would give rise to innumerable and perhaps unsurmountable difficulties and would not be in accordance with the intention of the Legislature.
5. Now as regards the other industrial dispute which according to Mr. Wasiullah Qureshi was filed on 27th February, 1980 unfortunately neither a copy of the strike notice, the certificate that conciliation proceeding had failed or an application under section 32 (1-A), I. R.
0., were produced. As such, it is not established that any such industrial dispute was filed, and if so, whether, the proceedings were initiated in accordance with law. In this connection, reference is invited to section 43; I. R.
0., which specifically provides that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by the C. B. A. Or an Employer.
6. Even if I could assume that an industrial dispute was filed on or about 27th February, 1980 on behalf' of the union of which the appellant was office-bearer, then also this appeal by the appellant would not succeed. There is evidence to show that the dismissal orders were passed on 23rd February, 1980 at 5-00 p.m., and that on the very date the dismissal orders were sent to the appellant by 2 separate covers, One of these covers was sent < u>to the address which is stated to have been given by the appellant at the time of his appointment and is mentioned in the appointment order itself. The appellant, however, had denied his thumb impression on the appointment order but has admitted that the address mentioned in the cover containing orders of his dismissal his correct address. However, the cover containing the dismissal orders sent to the residence address of the appellant was returned undelivered with the cover unopened. In the circumstances, I am of the view that this cover cannot be considered to have been duly delivered to the appellant nor the orders contained in the said cover communicated to the appellant.
However, the second cover, also containing the orders of dismissal of the appellant was sent to the address, 2-Kotriwala Chambers, Risala Road, Hyderabad. The appellant, in paragraph 5 of his affidavit before the learned Labour Court, has admitted that this is his correct address. The cover addressed to 2-Kotriwala Chambers, Risala Road, Hyderabad, was duly delivered at that address by postman, Muhammad Hanif, who was examined before that learned Labour Court. The postman has testified that he had duly delivered the said letter at that address on 24th February, 1980. Since this was the correct address of the appellant, as admitted by him in his evidence, the orders of dismissal are deemed to have been communicated to him when this cover was delivered at the above address, i. e., on 24th February, 1980. Admittedly, the second industrial dispute had not been filed by that date. I have already held that Industrial Dispute No, 678 of 1978 had been dismissed earlier on 23rd February, 1980. As such, the dismissal orders in respect of the appellant were not only issued when no industrial dispute was pending but they were further served on a date when no industrial dispute in respect of the Union of which the appellant was office-bearer was pending.
7. For the reasons discussed by me above, I find concur in the decision of the learned Labour Court and would dismiss the appeal.