AWARD This is an application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 filed by Mahboob Ali against his previous employers namely, the Textile Corporation of Pakis--tan Ltd., Hyderabad, the respondents.
2. The case sought to be made out in the application is that the applicant was a permanent employee of the respondent Mills and he was dismissed from employment on 5th November 1968, in contravention of conditions of service applicable to him, without being given any opportunity to defend himself or to prove his in--nocence and also without domestic enquiry being instituted against him. The application also shows that the respondent Mills is a party to the Industrial Disputes Cases Nos. 20 and 34 of 1968, which are pending in the Labour Court No. 2, Karachi. Lastly the prayer in the application is for an order to reinstate him in his employ--ment with full benefits of service and remunerations.
The application has been opposed by the respondent Mills who have filed a reply statement. In this statement it is denied that the applicant was dismissed without being given an opportu--nity to defend himself or without holding a domestic enquiry against him. The date of dismissal is not challenged. It is further contended therein that the applicant was neither an Officer of a Trade Union nor the misconduct for which he was dismissed was connected with the pending Industrial Disputes as such no violation of section 37 of the said Ordinance had been committed by the respondent Mills, therefore, tie application was incompetent and not maintainable. On these facts and grounds it is prayed in this statement that the application re dismissed.
4. During the course of proceedings applicant Mahboob Ali examined himself and also examined one Mr. Ausaf Ahmad as P.W. 2 on his behalf. On the other side the respondent Mills have examined Mr. Hasan Zaheer, their Labour officer only.
5. I will first discuss the question whether the present application is competent and maintainable or not? On this question the relevant evidence admittedly is that the Industrial Dispute cases mentioned already were pending at the time the present application was moved and it is also admitted by the Representative for the respondent in his arguments that the applicant teas a member of the Union in their concern and it has not been denied that this Union was a party in those industrial Dispute cases as are mentioned in the present application. On this position of the facts the learned Representative for the respondent has cited one authority which is reported as 1970 PLC 665. In this reported case it has been observed, inter alia, that the petitioner/complainant and his Representative had failed to convince the Court that any proceeding regarding which the complaint before it might be considered to be relevant were pending in the Industrial Court at the time when the respondent took disciplinary action against the Complainant. It is also observed on the same page 669 further that the Representative of the Complainant had also found himself at a loss to substantiate his contention that he was directly interested in Industrial Dispute No. 12/68, referred to therein which was pending in that very Court at the time when the Complainant was dismissed. These observations clearly show that in this reported case the complainant/petitioner was not able to show at all as to how he was concerned or connected with any Industrial Dispute which was alleged to be pending at the time when that case was initiated, which is not the position in the instant case. On this ground alone- the reported case has no bearing on the question under discussion. I like to adhere that we have an authority directly bearing on the question under discussion by the Appellate Tribunal which is reported as 1970 PLC 278. In this authority it is held that the words "workmen concerned" as found in section 37 of the aforesaid Ordinance mean that workman must have interest in the result of the pending dispute and further has held that only those workmen who belong to the Union which has raised the dispute can be said to have interest in the result of the- dispute pending before the Court. It is obvious that in the present case the workman i.e., the applicant, is a "workman concerned" with the meaning of these words employed in section 37 of the said Ordinance. The other leg of the argument in this respect is that the alleged misconduct for which -the` applicant was dismissed, .was not connected with the Industrial Dispute cases referred to above. I am afraid this contention is entirely untenable. In this respect the terms of section 37 of the Ordinance under consideration may be reproduced which are as follows :- "37. (1) No employer shall, during the pendency of conciliation proceedings or proceedings before a Court or the Tribunal in respect of an Industrial Dispute or during the period between the conclusion of the conciliation proceedings and the commencement of the proceedings before the Court, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of conciliation proceedings, nor shall he-
(a) save with the permission of the Conciliation Officer, during the pendency of conciliation proceedings and the period thereafter preceding the commencement of the proceedings before the Court, and
(b) save with the permission of the Court, during the pendency of the proceedings before the Court, and of the Tribu--nal during the pendency of the proceedings before it, discharge, dismiss or otherwise punish any such workmen except for misconduct not connected with such dispute.
(2) Notwithstanding anything contained in subsection (1)-
(a) an Officer of a registered Trade Union shall not, during the pendency of any proceedings or period specified in that subsection, be discharged or dismissed for misconduct not connected with the dispute referred to therein, except with the permission of the Court, but he may, pending the disposal of an application to Court for such permission, be placed under suspension, provided that during the period of suspension he shall be paid fifty per centum of his wages as subsistence allowance; and
(b) a workman who has completed service of nine months shall not, during the pendency of any proceedings or period referred to in subsection (1), be discharged or dismissed for misconduct not connected with the dispute, except in accordance with the provisions of the West Pakistan Industrial and Com--mercial Employment (Standing Orders) Ordinance, 1968, applic--able to such workman, and unless, he has been paid wages for a period of one month following such discharge or dismissal: Provided that the rate of subsistance allowance admissible under this subsection, and for the purposes of clause (b), the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, shall not apply to any workman in any industry run or under the authority of the Central or the Provincial Government, to which specific or general rules or procedure for dismissal or discharge of workmen are applicable.
(3) The Court shall deal with an application under sub--section (2) in such summary way as it may think fit,"
6. On a mere perusal of this section it will be seen that clause (b) in subsection (2) would govern the present case. This clause obviously provides protection to a workman from his discharge or dismissal for misconduct not connected with an Industrial Dispute except when his employment is terminated in accordance with the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the "Standing Orders Ordinance") and violation of this right residing in workman would entitle him to bring an application under section 38 of the Ordinance as has been presently brought. The Applicant in his evidence has said that he has been employed with the respondent. Mills for six years before be was charge- sheeted in consequence of which he appears to have been dismissed. Therefore, it is quite clear that his case is completely covered by clause (b) of subsection (2) of section 37 of the Ordinance aforesaid and hence the contention that the alleged misconduct against the applicant in this case is not connected with any pending dispute has no force and accordingly is repelled: Even though in this case it may be, which has not been shown as to how by the learned Representa--tive for the respondents in his arguments, that the connection between the alleged misconduct and. the Industrial Dispute cases is not proved still the said clause (b) would cover then case of the applicant as said above.
7. On this question the applicant has also admitted that he was served with a charge-sheet dated 31st October 1968 which he has produced as Exh. P-1 and his reply therein dated 3rd November 1968 as Exh: P-2. He also says that he was suspended from service by order dated 5th November 1968 for four days which he has produced as Exh. P-3. He then goes on to say that he was ordered by a letter Exh. P-4 to appear for an enquiry to be hold against him on 10th November 1968 but, according to him, he was not allowed to do so and he had reported to the Assistant Director, Labour Welfare, Hyderabad which complaint he has produced as Exh. P-5. He added when he went to attend the enquiry on 10th November 1968 he was not allowed to enter the gate (of respondent Mills). He then addressed 'to the Manager of the respondents a representation on 11th November 1968 i.e. next day, which he despatched by registered post A/D and has produced these documents as Exh. P-6 and Exh. P-7. Again on 13th November 1968 he wrote a letter to the Management which also he sent by registered post- A/D which documents he has produced P. 8 and Exh. as Exh. P-9. He also further states that he persisted in going to report for duty and again wrote a letter to the Man--agement on 15th November 1968 by registered post A/D which documents he has produced as Exh. P. 10 and Exh. P-11. He lastly in his examination-in-chief produced the order of his dismissal as Exh. P-12 which, he states, he received on 20th November 1968 (although by typing error the year is typed as 1969). In his cross-examination applicant has stated that the Chawkidar used to stop him at the gate but he did not know his name. He also denied that it was not a fact that he had participated in the enquiry but refused to sign the papers and left, and also that the enquiry was witnessed by Chawkidar Mian Khan. His witness Ausaf Ahmed (P. W. 2) has stated that he was working as Fitter-Coolie in the respondent Mills since two years and two months before he gave his evidence during which period he came to know the applicant and also that he save the later at the gate when the witness came for his work at the shift and the applicant informed him that he had been called but he was not allowed to enter the factory. This witness further adds that when he came again to the gate at about 11-00 a.m. he still found the applicant there who repeated his previous complaint to him. The witness lastly said that he was on duty on 11th November 1968 and 15th November 1968 and also that he' had seen the applicant at the gate on this last day. In the cross-examination he has been merely asked one question to which the reply is that he did not complain to the Management as to why the applicant was not being called inside the gate.
8. On the other hand the solitary witness of the Respondent Mill Mr. Hasan Zaheer has stated that at first Mr. Kareem Usani held the enquiry against the applicant and on a representation made by the latter to the Labour Department a fresh enquiry, was ordered and this witness was appointed as the enquiry officer. He produced notice of commencement of this enquiry Exh. R-1 whereby it was notified that the enquiry was to start on 15th November 1968 at 10-00 a.m. This document, I might say, the applicant admits in his cross-examination having received. Mr. Hasan Zaheer further states that he held the domestic enquiry against the applicant but the latter did not participate in the enquiry. He produce the enquiry papers as Exh. R-3 as well as his report, on conclusion of the enquiry, as Exh. R-4. In his cross-examination he was asked only two questions to which his replies are that his office was about 200 yards from the gate inside the mill and it was not a fact that the applicant was refused to enter into the gate.
9. The documents of the domestic enquiry proceedings Exh. R-3 and the report of the enquiry officer Exh. R-4 indicate that a domestic enquiry was held by Mr. Hasan Zaheer (R. W. 1) and the admission of applicant referred to above also shows that he had received notice of date and time of commence--ment of this enquiry but his case is that on that day which was 15th of November 1968, which is also the date as shown in the papers Exh. R-3 as the date of the domestic enquiry, he was not allowed to enter the mill premises at the gate of it by the Chawkidar. Three questions, therefore, that now need to be considered are (1) whether the domestic enquiry was justifiably held ex parse, as seems to have been- done (2) whether this enquiry was in these circumstances fair and impartial and (3) whether the consequent dismissal order under the said circumstances is legal and justified.
10. So far, the first question is concerned it is contended that the applicant was prevented at the gate on 15th November 1968 from entering the premises of the respondent Mills. On this question there is his own evidence and that of his witness Mr. Ausaf Ahmad (P. W. 2) who has also fully supported this contention of his. In rebuttal, in my opinion, the respondent Mill could have produced their Chawkidar in evidence during the course of proceedings on the present application but they have failed to do so. This, however, leaves the evidence of Mr. Hasan Zaheer (R. W. 1) to be considered according to whom on 15th of November 1968 the applicant did not present himself for participating in the enquiry. He would obviously say so even in case the applicant was not allowed to enter the premises of the, Respondent. Mill at the gate by the Chawkidar. In view of these circumstances I find that the evidence on this question adduced on behalf of the applicant is more mighty acid reliable than that of the solitary witness produced by the respondent. The proper conclusion on this point, therefore, is that the applicant was prevented due to his being stopped at the gate of the mill on the relevant date as a consequence of which he could not participate in the ex parte domestic enquiry. Obviously the respondents cannot be allowed to take advantage of their own wrong. In this respect I might also point out that the applicant has also sent a letter addressed to the Management on the date of enquiry i.e., 15th November 1968, by registered post lodging his protest that he was prevented from entering the mill premises at its gate postal A/D receipt of which he has also produced, therefore, this fact too supports the finding just reached which holds that the applicant was prevented due to the action of the Management itself from participating in the domestic enquiry. Obviously in this situation the domestic enquiry held against the applicant was unjustifiably held as ex parte and he was deliberately kept out of it. This enquiry, therefore, can obviously be termed as perverse and also illegal. In view of this finding I need not discuss the other two questions formulated above.
11. For the foregoing reasons I set aside the order of dismissal which could only be passed by the employer i.e., respondents, after the provisions of Standing Order 15 of the Standing Orders Ordinance were satisfied which has not been done in this case hence I set aside the order of dismissal of the applicant from his employment and direct that he shall be taken back on his job.
For the intervening period until he is actually taken back on his job since the time he was not paid he shall be a paid 50 percent. of his emoluments due to him and admissible to him at the relevant time. This order shall be implemented by the employer within 30 days hereof.