' Muhammad Sarwar was employed in Rustam Sohrab Cycle Factory as a clerk. His services were terminated on 16th January, 1978 and he made an application under Section 25-A of the Industrial Relations Ordinance, 1969 for his re-instatement with back benefits. In his petitions he alleged that he was an active member of the Mazdoor Union of the Rustam Sohrab Cycle Factory; 24th November, 1977 was declared a public holiday by the Federal Government so the respondent establishment remained closed but some of the workers reported for duty ; the Mazdoor Union demanded that 24th November, 1977 be treated as a gazetted holiday (petitioner has wrongly given the year as 1978 in para. No, 4 of the petition while in para. No, 3 he has given year as 1977) ; the respondent did not accept the demand of the Union and ultimately the police resorted to "lathi-charge" in the factory premises and then the petitioner and some others were arrested ; challan against him was submitted to the Military Court and he was sentenced to undergo one year's R.I. And five lashes ; he while in jail, received a so-called charge-sheet he informed the respondent that on release he would file reply to the charge-sheet and would also report for duty ; he applied to the respondent to adjust his absence against leave available to him ; on 21st March, 1978, he was released from jail as the remaining sentence and lashes were remitted ; he reported for duty but the respondent refused to accept him vide order dated 16th January, 1978 ; he gave a grievance notice which was rejected. He assailed the order of his termination dated 16th January, 1978 as illegal, null and void for the following grounds :-
(1) that he had been removed from service without complying with the provisions of Standing Order 15 ;
(2) that the charge-sheet was illegal and void ;
(3) that he had been removed from service for allegations not mentioned in the charge-sheet ;
(4) that no inquiry was held before his removal from service ;
(5) that the respondent dishonestly involved the petitioner and also succeeded in getting him involved in the Martial Law Order by approaching the police ;
(6) that he had been victimized due to the fact that he was a member of the Mazdoor Union ; and
(7) that he was innocent and the allegations were concocted.
2. The respondent filed reply and resisted the petition. It was asserted that 24th November, was not declared a festival holiday by the Punjab Government and was not a holiday for the factory workers ; the workers were informed that factory would function and a small number of workers attended for duty ; no proper demand notice was served by the Union nor the dispute in respect of 24th November as a holiday was raised in a prescribed manner ; the true fact was that the workers went on illegal strike and the police arrested the trouble makers, the petition was served the charge-sheet before his punishment but when he was awarded one year's R.I. There was no hope of his early return and his services were terminated. It was asserted that there was no leave to the credit of the petitioner nor he sent any application to the factory management; after announcement of the sentence the company terminated the services of the petitioner and the petitioner received termination order in jail. It was asserted that the order of termination was in order and the petition merited to be dismissed.
3. My learned predecessor after recording evidence of the parties decided the case in favour of the petitioner and re-instated him vides order dated 1st March, 1979. The respondent preferred an appeal before the learned Punjab Labour Appellate Tribunal and Writ Petition No, 1393/ 1979 in the Lahore High Court. The appeal was withdrawn and the writ petition was pursued which was decided on 31st March, 1981. The order of my learned predecessor was set aside and it was ordered that the Labour Court should decide the petition in accordance with law after first deciding if the termination of service of the petitioner was properly made under Standing Order 12 or whether it was a colourable exercise of power under that order and that the case of the worker in essence fell under Standing Order 15.
4. The petitioner appeared as his own witness and stated that he was a shop clerk in the respondent factory in November, 1977 and had no connection with the trade union ; there was a lathi charge in the factory on 28th September, 1977 ; he alongwith others was arrested ; he received charge-sheet Exh. P-1 in jail ; he sent reply to the charge-sheet ; he learnt on 15th January, 1978 that his services had been terminated ; he was convicted and sentenced by the military Court ; he filed a writ petition in the High Court against his conviction : his writ petition was pending when his services were terminated ; he was released on 21st March, 1978 ; he submitted an application to the respondent to be given duty but he was told that his services have been terminated : no inquiry was held before termination of his services. In cross-examination, he admitted that he received letter Exh. R-1 about termination of his services in jail and that he was convicted of imprisonment for one year. He also admitted that his services were not terminated for the reason that he was an office-bearer of the union or on account to trade union activities.
5. Zakaullah, General Duty Officer of the respondent appeared on behalf of the respondent and stated that there was a strike in the factory on 27th November, 1977; that strike was declared illegal by the Court, the petitioner took part in the strike ; petitioner was sentenced by the military Court for one year and some lashes ; the services of the petitioner were terminated by the respondent factory vide Exh. In cross- examination, he admitted that no inquiry was held against the petitioner and it was correct that the services of the petitioner were terminated as he had taken part in the illegal strike.
6. I have heard the learned counsel for the parties and have perused the record. The termination letter is Exh. R-1 which apparently shows that bus services were terminated because he was sentenced to imprisonment for one year from 22nd December, 1977. Before that he was served with a charge-sheet which is Exh. R-1 and it is regarding the misconduct of the petitioner, The petitioner has not stated about the reason for termination of his services in his statement nor he has stated that his services were illegally terminated. His only statement is that no inquiry was held before termination of his services. The respondent's witness has proved the case of the petitioner. Mr. Zakaullah R.W.-1 has clearly stated that it was correct that the services of the petitioners were terminated as he had taken part in illegal strike. He has clearly disproved the case of the respondent by making the above-mentioned statement. His statement referred to above shows that the petitioner was removed from service for his misconduct in taking part in illegal strike and not for his conviction. So, it was not an order under Standing Order 12 of the Standing Orders Ordinance, 1968 rather it was an order on the ground that the petitioner had misconducted in taking part in the illegal strike. According to Standing Order 12 termination of services of a permanent or temporary workman cannot be made on the ground of misconduct otherwise that prescribed in Standing Order 15 and under Standing Order 15 (4) the petitioner had to be given a show-cause notice of his alleged misconduct and had to be given an opportunity to explain the circumstances alleged against him i,e, an inquiry was to be held affording him an opportunity to defend himself. In the instant case, admittedly no inquiry was held, so the services of the petitioner could not be terminated and as such termination of services of the petitioner is not under Standing Order 12 rather this termination of services falls under Standing Order 15 and as provisions of Standing Order 15 have not been complied with so it is illegal.
7. The result is that the order of termination of services of the petitioner is set aside and he is re- instated with back benefits.