DECISION This is an appeal against a decision dated 27th April 1970, on an application under section 10 (1) (a) of the Industrial Disputes Ordinance, 1959 (hereinafter called the repealed Ordinance). The facts giving rise to the present appeal briefly put are these.
2. The General Secretary of the Siemens (Pakistan) Employees' Union made an application under section 5 (5) of the repealed Ordinance on 24th August 1967, for the adjudication of the dispute, namely; (1) for re-instatement of 8 of the workmen of the Company, (2) increase of the salary of Mr. Ashfaq Ahmed, and (3) that no workman shall be punished without an adequate opportunity to explain his conduct followed by an independent enquiry, wherein the workman would be entitled to be repre--sented by an Officer of the Union or other workman of his choice.
3. The learned Chairman of the Second West Pakistan Industrial Court, Karachi, allowed the application under section 10 (1) (a) of the repealed Ordinance, except as regards the re- instatement of Abdul Shakoor.
4. I have heard Mr. Nayab Naqvi for the appellant and Mr. A. A. Shareef, the learned Representativefor the respondent.
5. The observation of the learned Chairman that the order passed under section 31 of the repealed Ordinance is an award and final subject to an order passed in appeal by the High Court under subsection (5) of section 12 of the resealed Ordinance cannot be challenged. The learned Court is supported in his conclusion by the provisions contained under subsections (4) and (5) of section 12 of the repealed Ordinance. An application made under section 31 of the repealed Ordinance to the Court alleging contravention of section 30 of the repealed Ordinance was to be treated as an industrial dispute and decided as if I was an application under subsection (5) of section 5 of the repealed Ordinance. Subsections (4) and (5) of section 12 of the repealed Ordinance read as under :- "Any decision of the Court other than an award shall be final and shall not be questioned may manner by or before ally judicial or outer authority.
Any award published under subsection (2) or subsection 2 (B) may be appealed against to the High Court by any party to the dispute within 30 days of the publication of the award; and the decision of the High Court in such appeal shall be final."
6. The Union cannot be permitted to raise the question of re-instatement of persons on similar grounds which were taken up by the workmen under section 31 of the repealed Ordinance.
7. The question of re-instatement of Gulzar, however, is different. He had not made any application under section 31 of the repealed Ordinance. The learned Court came to the following conclusion in respect of Gulzar :- "It is also proved on record and at the same time, it has been admitted by the petitioner-Union as well, that the Management had moved the Industrial Court at Karachi for permission to dismiss Mr. Gulzar under section 30 of the I. D. O., 1959. In these circumstances, under section 12 (4) of the I. D.
O., 1959, this Court will be debarred from making further enquiry into the matter."
8. I do not agree with the observation of the learned Court. In the first place, an application under section 30 of the repealed Ordinance for permission to dismiss a workman is to be treated in a summary way, as the Court may think fit. It has not to be treated as an application under section 31 of the repealed Ordinance to be an industrial dispute under subsection (5) of section 5, of the repealed Ordinance. In the second place, under subsection (4) of section 12, of the repealed Ordinance only the decision regarding permission to the Management, to dismiss workman, cannot be challenged before any Judicial or other authority. Subsection (4) of section 12 of the repealed Ordinance does not debar a workman to challenge his dismissal under section 31 of the repealed Ordinance or the Union to challenge his dismissal as an industrial dispute under section 5
(5) of the repealed Ordinance. If the workman has been dismissed, after the permission has been granted by the Court, without a show---cause notice or an opportunity to be heard, these would be adequate grounds for the Union to challenge the dismissal of the workman. Mr. Shareef, the learned Representative for the respondent supported the order of the learned Court in respect of Gulzar on the ground that Gulzar had admittedly overstayed his leave for more than 10 days and, therefore, his order of dismissal cannot be challenged by the Union. Even if Gulzar had overstayed for more than 10 days, he would be entitled to a show-cause notice as to why he should not be dismissed from service on the ground that he had over-stayed for more than 10 days beyond the leave granted to him. It may be that the explanation given by Gulzar may be such that it may satisfy a reasonable employer and he may not take the drastic step of dismissing the workman. I would hold that the Union is entitled to raise the demand of re-instatement of Gulzar. The observation I have made in respect of Gulzar may not be taken to be a finding in his favour. It would be open to the Court to adjudicate the question of re-instatement of Gulzar according to law.
9. So far as the question of increase of pay of Mr. Ashfaq Ahmad is concerned, the learned Court observed as under :- ". . . no demand regarding the wages of Mr. Ashfaq was made in Industrial Dispute No. 2/65. He (Muhammad Ahmad Ghalib) also admitted that before the filing of that dispute, the Union had corresponded with the Management on the question of reduction of wages of Mr. Ashfaq Ahmad but that matter was not made the subject of industrial dispute No. 2/65.
From the above, it would appear that whereas an oppor--tunity was available to the petitioner- Union to raise the present Demand No. 2 in Industrial Dispute No. 2/65, but they --did not do so."
10. The learned Chairman also observed that the demand as to the increase of wages of Mr. Ashfaq Ahmad had been raised after 3 years, hence belated. I do not think that the Union is debarred for all time to come to raise an increase in the wages of Mr. Ashfaq Ahmad. The Union for some reason or the other did not raise the question of increase in the pay of Mr. Ashfaq Ahmad in 1965. To raise a demand is one thing and to succeed in implementation thereof through the Court is quite a different proposition. The Court may, on the evidence led by the parties, come to the conclusion that Mr. Ashfaq Ahmad is not entitled to any increase in the pay or may grant an increase in the wages. I would hold that the Union is entitled to raise the demand of increase in the wages of Mr. Ashfaq Ahmad.
11. So far as the third demand is concerned, it is amply provided under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. I, therefore, confirm the order of the learned Court as to this demand.
12. The order of the learned Court is modified only to this extent that the Court will adjudicate also on the demand regard--ing the re-instatement of Gulzar and the increase of wages of Mr. Ashfaq Ahmad.