IJAZ ANWAR, J. This Labour Appeal is filed against the order and judgment dated 16.02.2022 of the learned Labour Court, Mardan, whereby, the grievance petition was accepted and the respondent was reinstated as Electrician in the establishment.
2. In essence, the respondent filed grievance petition before the Labour Court, Mardan for reinstatement on the post of Electrician in the appellants' establishment. The grievance petition of the respondent was allowed by the learned Labour Court vide the impugned Judgment/Order dated 16.02.2022, hence this Labour Appeal.
3. Learned counsel representing the appellants argued that the act of the respondent was subversive to discipline, which is defined in the Standing Orders as misconduct, as such, he was righty proceeded departmentally. He placed reliance upon (1985 PLC 570). He further argued that it was proved on record that the respondent incited workers to go on strike and stop work till the management of the mills gave them their due rights and that in such a situation how can an employee be retained in the service. He further argued that proper departmental proceedings were initiated against the respondent and when found guilty was awarded the punishment, according to him the Labour Court has traveled beyond its jurisdiction in allowing grievance petitions. He placed reliance on the case titled "Adam Sugar Mills Ltd. Vs. Muhammad Iqbal" (2012 PLC 152), "The Factory Manager, Treet Corporation Ltd. Vs Muhammad Babar" (2000 PLC 287)
"Zohra Jabeen Vs First Woman Bank and others" (2022 PLC 1) and "Syed Mehmood Akhtar Naqvi vs Federation of Pakistan through Secretary Law and others" (2012 PLD 1089).
4. As against this learned counsel representing the respondents argued that where the respondent has merely claimed secured rights for the grant of minimum wages as required under the law, the same cannot be considered as misconduct and he produced all the relevant notification to this effect.
5. Arguments heard and record perused.
6. The record transpires that the respondent was served with a charge sheet dated 23.11.2015 on the following allegations:- "It has been observed that for the last few days you have been visiting sections of the Mills during working hours, unauthorizedly deserting your own job, and inciting workers to go on strike and stop work till the management of the mills gives them their due rights. You also addressed letters to the labour department in your personal capacity making complaints of alleged violation of law against the management. Your such action has really surprised us because the management of the mills always kept the welfare of the workers and provided them with all their legal rights and benefits. We took up the matter with the CBA who also informed us of your unlawful activities. The CBA, however, made it clear that they have no hand in it and that you presumably indulged in these activities at the instant of outsider.
Since your incitement to workers of the mills for stopping work and going on strike are clearly subversive of discipline of the establishment and constitute gross misconduct under the law.
You are hereby directed to submit your reply to the above allegation, within 02 days, to the undersigned failing which it will be deemed that you admit the truth of the charges, meanwhile you are placed under suspension with immediate effect".
7. In compliance, the respondent duly replied, denying the allegations, however, it was stated that he being Office Secretary of Mehnat Kash Union has agitated for the grant of minimum wages to the workers of factory, after the departmental proceedings he was dismissed from service vide order dated 29.12.2015. The alleged complaint attributed to the plaintiff, suggests that it was submitted by the Mehnatkash Labour Federation and signed by either the respondent or by the General Secretary of the Labour Federation. During the inquiry proceedings, one Sarwar Jahan (A.G.M) appeared and stated that different workers informed that respondent is instigating them for a strike and to support him for their rights. Workers in support of the allegations produced in the domestic enquiry merely stated that the respondent has called upon him to join hands so that the secured rights of the workers can be demanded from the management, however, none of them in any manner stated that the respondent has instigated them to go on strike. The witnesses of the management consisting of some senior officers though stated that different workers have approached them with the allegations about the strike, but the workers so produced in the inquiry have not supported such allegations.
8. In order to prove the commission of misconduct, it is required to be demonstrated that the delinquent workman has shown disorderly behavior or that he in any manner has created hurdles in the smooth running of the mill. Thus, the mere fact that representations were addressed to the mill administration and to the labour department under no circumstances can be termed as misconduct within the meaning of law, particularly when the Provincial Government has, from time to time notified enhancement of minimum wages in terms of Sub Section (1) of Section 6 of the Khyber Pakhtunkhwa Minimum Wages Act, 2013, but the appellants have not placed on record anything in black and white that the notifications pertaining to enhancement of minimum wages were implemented by them.
9. The learned Labour Court has referred to different provisions of law to demonstrate that the respondent was within his right to have raised his voice for the down-trodden workers of the mill. It is observed that suppressing and targeting such workmen for claiming legal right cannot be countenanced if such practice is allowed to suppress the voice of such workers then it would amount to depriving the workers of their due legal rights. The appellants have produced the President of the Collective Bargaining Agent (CBA) as RW-2, who supported the management and stated that he is the President of the union and holding the position of CBA for more than eighteen years but admitted that no election has been held. It merely suggests that the management is not allowing the rival union to raise its voice in the appellants-establishment and whoever dares or attempted, is being dealt with in the manners in which respondent is dealt with. Under Section 37 of the Industrial Relation Act, 2010, the Labour Court has the powers to see for itself the correctness, legality and propriety of the impugned order and to pass any order, which is deemed just and proper in the circumstances of the case. It is also by now well settled that mere adopting the procedure prescribed under the law for dealing with the cases of misconduct would not be sufficient unless the charges that are leveled are also proved during the course of departmental inquiry and the Labour Court shall go behind the dismissal order to see as to whether in the given circumstances penalty of dismissal can be ordered and also to see whether the allegations so leveled amounts to misconduct under the law. The Labour Court has rightly referred to Article 17 of the Constitution of the Islamic Republic of Pakistan, because in this modern world how can a worker be stopped from agitating his or the rights of his other colleagues before the management or the custodian of the rights of workmen (Labour Department).
10. For the reasons stated above, I find no merit in the instant appeal, it is accordingly dismissed.