JUSTICE (R) ALI SAIN DINO METLO, MEMBER/ CHAIRMAN.--- In these cross appeals, both employer (Lotte Pakistan PTA Ltd.) as well as worker (Tariq Nazir Bhatti) have challenged the judgment dated 06-08-2011 of the Sindh Labour Court No,4, Karachi, whereby, the Labour Court reinstated the worker and directed the employer to conduct fresh inquiry and made the payment of back benefits dependent upon the result of the fresh inquiry.
2. Briefly, the facts are that on 18-06-2010, the worker, who was working as Senior Mechanical Technician in the factory of the employer since 1997, was dismissed from service on the charge of not accepting promotion. On 28-05-2010, the management promoted the worker to management cadre as Sub-engineer Planning with effect from 01-06-2010, which the worker refused to accept on the ground that it was simply a ploy to prevent him from his trade union activities. He. was General Secretary of the CBA union.
3. On 09-06-2010, the employer charged the worker for not accepting the promotion treating it as an act subversive of discipline. The inquiry officer found him guilty of misconduct and the management dismissed him from service.
4. Learned counsel for the worker argued that after giving finding that refusal to accept promotion was not misconduct, the Labour Court was not justified in giving direction for holding fresh inquiry.
5. Learned counsel for the employer argued that the finding of the Labour Court that refusal to accept promotion was not misconduct is not correct. According to him, refusal to accept promotion is gross misconduct on the part of an employee. In support of his contention, he cited the cases of The Province of East Pakistan v, Muhammad Sallad Ali Mazumdar (1962 PLC 528 Supreme Court), Muhammad Riaz v. Sindh Labour Appellate Tribunal, Karachi (1993 PLC 301 Karachi), Akhtar Muneer v. General Tyre and Rubber Co. of Pakistan Ltd. (2007 PLC 360) and Habib Bank Limited v. Sindh Labour Appellate Tribunal (2012 PLC 321 Sindh High Court) and two unreported judgments relating to an officer of a bank, namely, Malik Ehtesham-ul-Hassan.
None of the judgments cited as precedent is relevant to the facts of the present case. In the first reported case, a government servant had sent his wife to approach senior officials and Ministers to get his transfer order cancelled. In the next two reported cases, the employee had shouted, abused and assaulted his employer. The fourth reported case pertained to pasting posters against management of a bank. The two unreported judgments pertained to an officer of bank, who refused to receive power of attorney. None of them pertained to not availing or not accepting a promotion.
6. Promotion is a reward and not a liability or punishment which can be enforced or suffered. In absence of any Service Rule or term or condition of Service Contract to the contrary, an employee cannot be forced to accept promotion.
7. Generally, promotion brings change in job description. In the present case, the job description is massively changed and the worker is inducted into the management cadre.
8. Learned counsel for the employer argued that the worker was interested more in trade union activities than in his work and, therefore, he was not a good worker fit to be retained in service. The argument is self-destructive. The worker is appreciated and condemned at the same time. The argument also lends support to the contention of the worker that he was promoted only to keep him away from trade union activities.
9. Learned counsel for the employer also argued that in case this Tribunal concludes that the dismissal of the worker was wrongful, he may be awarded compensation in lieu of reinstatement.
According to the learned counsel, the provision for the award of compensation in the repealed Ordinance of 2002 was illustrative and regulatory restricting the discretion of awarding compensation equivalent to not less than twelve months and more than thirty months basic pay last drawn and house rent, if admissible. There is force in the contention. The power to pass any 'just and proper' order includes power to award compensation. Omission of the provision in the new law does not handicap the Labour Court or this Tribunal to grant compensation, if such relief be considered just and proper in the circumstances of a case.
10. Law i,e, Section 34(7) read with Section 48(3) of the Sindh Industrial Relations Act, 2013, enjoins the Labour Court as well as this Tribunal to "pass such orders as may be just and proper in the circumstances of the case". Law i,e, Section 3 of Sindh Industrial Relations Act, 2013, permits workers to form trade unions and take part in the activities of such unions. Right to form union has been recognized as a fundamental right under Article 17 of the Constitution. Admittedly, in the present case, the worker was a trade union activist and had remained office bearer of CBA union. Refusing to reinstate the worker will have the retrogressive effect of discouraging trade union activities and encouraging employer to get rid of trade union activists by foul means.
11. The precedents reported in PLD 1962 Supreme Court 60 and 1966 PLC 552 cited by the learned counsel for the employer are not relevant to the facts of the present case. In the first case the argument that the Industrial Tribunal had no power to reinstate a worker was repelled. However, it was observed that no hard and fast rule could be laid down whether relief of reinstatement or compensation would be the appropriate remedy. It would depend upon the circumstances of each case. In the second case relief of compensation was granted mainly because the worker having joined another job was not interested in reinstatement.
12. Inquiry is conducted only when there is some factual controversy. In the present case there was no factual controversy. The fact of not accepting the promotion was not disputed by the worker.
Inspite of that, the employer performed the formality of inquiry. In paragraph 45 of the impugned judgment, the Labour Court concluded that refusal to accept promotion did not amount to misconduct as an employee can forego his promotion. After giving such finding, the Labour Court was not justified in directing the employer to conduct fresh inquiry.
13. The Labour Court in paragraph 46 of the impugned judgment stated that the question whether the worker had violated Staff Rules/ Work Rules required further probe. There is no reference of any Staff Rules/Work Rules and there is no charge of violating any such Rule against the worker. It is also not the case of the employer that there was any term in the contract of employment binding the worker to accept the promotion. In such circumstances, the direction of the Labour Court for holding further enquiry is uncalled for.
14. Learned counsel for the employer challenged maintainability of the grievance application on the ground that under the Sindh Industrial Relations Act, 2013, or under the repealed Industrial Relations Laws, a worker could challenge his removal from service only when his removal was in connection with or in consequence of an industrial dispute or his removal led to such dispute and in support cited the cases of I.E. Saleh v. International Laboratories (PLD 1975 Karachi 279), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213), Board of Governors Aitchison College v. Punjab Labour Appellate Tribunal (2001 SCMR 1928), Muslim Commercial Bank Limited v.
Abdul Razzak Pathan (2007 PLC 353 Karachi), Muhammad Nawaz Bhatti v. President Muslim Commercial Bank (2008 SCMR 1377) and Coca Cola Mazdoor Union v. Registrar Trade Unions (2013 PLC 206).
15. In reply to the argument, learned counsel for the worker contended that the grievance petition was filed under Standing Order No,12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for whose disposal only procedure provided under the Industrial Relations Ordinance was to be followed. He relied upon the case of Mustehkum Cement Limited v. Abdul Rasheed (1998 PLC 172 Supreme Court of Pakistan).
16. Replying the argument of learned counsel for the worker, learned counsel for the employer argued that the fiction of law created by the referral legislation is no more valid as Standing Order 12(3) refers to Section 25-A of the Industrial Relations Ordinance, 1969, which was repealed long back. In support of his argument, he cited the cases of Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526), Pakistan International Airlines Corporation v. Kaural Channa (1999 PLC (C.S.) 1539 Supreme Court of Pakistan), General Manager, Optical Fibre System v. Abdul Rasheed Khan (2000 PLC (C.S.) 180 Lahore), Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) and Air League of PIAC Employees v. Federation of Pakistan (2011 SCMR 1254).
17. The law is clear that a worker seeking reinstatement under Industrial Relations Ordinance/Act, will have to show that his removal was in connection with or in consequence of an industrial dispute or that the removal has led to such dispute. This is a condition mentioned in the definition of worker under the Industrial Relations Ordinance/Act. The authorities cited by the learned counsel for the employer elaborate this principle.
18. The law is also clear that where removal of a worker is not in connection with or in consequence of an industrial dispute, or where the removal has not led to such dispute, his remedy is available under the Standing Order, 12(3) and his status as worker will have to be determined according to the definition of worker given in the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. In the present case, status of the worker as worker under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is not disputed. The cases of Mustehkum Cement Limited v. Abdul Rashid (1998 PLC 172 Supreme Court of Pakistan) and Muslim Commercial Bank v. Muhammad Shahid Mumtaz (2011 SCMR 1475) are very clear on this point.
19. The argument of learned counsel for the employer that Standing Order, 12(3) refers to Section 25-A of the Industrial Relations Ordinance, 1969, which was repealed in 2002 and, therefore, according to the learned counsel the Standing Order has become ineffective, is without any force.
It was not repealed without reenactment. It was repealed with reenactment. According to Section 8 of the General Clauses Act, 1897, .reference to the repealed provision shall be construed as reference to the reenacted provision. Besides, as a measure of abundant caution, the legislature expressly provided under all the reenacted statutes (Section 80(2)(c) of Industrial Relations Ordinance, 2002, Section 87(2)(c) of Industrial Relations Act, 2008, and section 80(2)(c) of the Sindh Industrial Relations Act, 2013) that any document referring to the repealed Ordinance/Act relating to industrial relations shall be construed as referring to the corresponding reenacted provision.
20. The argument of the learned counsel for the employer that the Standing Order 12(3) cannot be given effect without corresponding amendment in the Industrial Relations Ordinance/Act and his reliance upon the case of Divisional Engineer Phones, Sukkur v. Muhammad Shahid (1999 SCMR 1526), Pakistan International Airlines Corporation v. Kaural Channa (1999 PLC (C.S.) 1539 Supreme Court of Pakistan), General Manager, Optical Fibre System v. Abdul Rasheed Khan (2000 PLC (C.S.)
180 Lahore High Court) and Muhammad Mubeen-us-Salam v. Federation of Pakistan (SBLR 2006 SC 258) are misconceived.
21. In Muhammad Shahid's case (1999 SCMR 1526), it was held that employees of the Pakistan Telecommunication Corporation, who were appointed after the creation of the corporation and were not civil servants, could not avail the remedy of appeal before the Service Tribunal before insertion of Section 2-A in the Service Tribunals Act. The cited cases pertained to the year 1995, whereas Section 2-A was inserted in 1997. In Kaural Channa's case (1999 PLC (C.S.) 1539), it was held that the effect of insertion of Section 2-A in the Service Tribunals Act, 1973, was limited only to the extent of enabling the employees of the corporations etc. to file appeal before the Service Tribunal and that they did not become civil servants for the purpose of regulating terms and conditions of their service by the Civil Servants Act and that the terms and conditions of their service shall continue to be governed by the rules and regulations applicable to them before insertion of Section 2-A in the Service Tribunals Act. The judgment was authored by the same honourable Judge (Saeeduzzaman Siddiqui), who had authored the judgment of Muhammad Shahid's case. These two judgments of the Hon'ble Supreme Court make it clear that after the insertion of Section 2-A in the Service Tribunals Act, employees of corporations etc. could avail the remedy of appeal before the Service Tribunal, but by that they could not be treated as civil servants to be governed by the Civil Servants Act. In the case of General Manager, Optical Fibre System v. Abdul Rasheed Khan reported in 2000 PLC (C.S.) 180, a learned single Judge of the Lahore High Court, relying upon the case of Muhammad Shahid, held that employees of PTCL could not avail the remedy of appeal before the Service Tribunal. The finding of the learned Judge is not in accordance with the law laid down by the Hon'ble Supreme Court and, therefore, I am not impressed by it. The judgment of Muhammad Mubeen-us-Salam's case is also not relevant as in that case Section 2-A of the Service Tribunals Act was declared ultra vices Articles 240 and 260 of the Constitution. Moreover, in presence of the judgments of the Hon'ble Supreme Court of Pakistan in the cases of Mustehkum Cement Limited v. Abdul Rasheed (1998 PLC 172 Supreme Court of Pakistan) and Muslim Commercial Bank v. Muhammad Shahid Mumtaz (2011 SCMR 1475) clearly holding that remedy of a worker, whose termination did not relate to an industrial dispute, is available under the Standing Order 12(3), it cannot be said that the provision is invalid or redundant.
22. Learned counsel for the employer lastly argued that the worker was not entitled to back benefits as he has failed to show that he had made any effort to engage himself in any gainful pursuit. There is force in the argument. Back benefits are awarded not as punishment to the employer for wrongfully removing the worker, but to compensate the worker for the loss sustained by him due to his inability to get himself employed in any gainful pursuit. Back benefits are, therefore, not J automatic on the finding of removal as wrongful. For claiming back benefits, the worker must show that despite all possible efforts on his part, he could not employ himself in any gainful pursuit. He cannot choose to sit idle for long period and wait for making unearned gain in the shape of back benefits.
23. In the present case the employer in his written reply as well as affidavit-in-evidence gave details of the needs and expenditure of the worker and specifically pleaded that without employing himself in some gainful pursuit, he could not meet his needs. In his lengthy argumentative affidavit, the worker did not say anything about his unemployment. In his cross-examination, he admitted that his household expenses were Rs,25,000/- per month, further admitting that in his grievance notice, grievance petition or affidavit-in-evidence he has not mentioned wherefrom he was getting his monthly expenses. In absence of any evidence about his unemployment, the worker is not entitled to the award of back benefits. The case of Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal (1991 SCMR 2087) cited by the learned counsel for the worker also does not support the worker as in that case also it was held that back benefits were not automatic on a finding of wrongful removal of worker and that initial burden of proof that after removal from service he was not gainfully employed elsewhere was upon the worker to assert so at least orally.
24. In view of my above discussions, facts and circumstances of the case, the impugned judgment to the extent of reinstatement of the worker is upheld; while it is set aside to the extent of giving direction for holding fresh/further inquiry. Back benefits are not awarded to the worker. The appeals are disposed of accordingly;