1. MD. NURUL ISLAM KHAN (CHAIRMAN).-This is an applica--tion under section 25 (1) (b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 which will be hereinafter referred to as the Act.
2. The case of the first party is that he was a permanent worker under the second party since 1961 on a daily-rated wages of Rs. 4.81 paisa. He was dismissed by the second party on 12-9-1969 in violation of the legal provisions and without holding any prior and proper enquiry. He sent 'a grievance petition to the second party on 17-9-1969 which was duly received by the second party.
3. A reply was given which was not found satisfactory. The first party wants re-instatement to his former post with all back wages and other legal dues.
4. The case of the second parry, as it is found from the papers and the submissions of the second party, is that Mubarak Ali was proceeded against for acts of indiscipline and mis--conduct. He did not allow others to remove some bench and tools which were lying somewhere in the office which the Supervisor and the Managing Director ordered to- be removed. But .he and others obstructed to remove them. An enquiry was held and he was dismissed. On 7th October he was directed to appear before the Managing Director. But on that day Mubarak Ali and others attacked the factory.
5. They were prosecuted under the M. L. R. He and others were found guilty under M. L. R. Regulation No. 16(A) and were sentenced to suffer R. I. for 3 months and 3 stripes of whip. Mubarak Ali because of his involvement in the riot did not turn up on 7.10-1969 and later on 15-10-1969. As about the original charges Mubarak Ali denied the entire offence. He was at first suspended for 5 days and. later after an enquiry he was dismissed.
6. Point for determination is whether the order of dismissal 1lassed by the second party against the first party is sustainable under law, and what relief, if any, is the first party entitled to?
7. FINDINGS AND DECISION It appears that Mubarak Ali was' charge-sheeted on 3-9-1969 on as many as 5 counts of indiscipline, riotous conduct, disobedience of orders and specific disobedience orders of the Managing Director and the Supervisor. He denied the charges. Thereafter there was an enquiry. The first party has stated that he was not allowance any chance of enquiry in the matter' and that there was no enquiry. But it appears that some witnesses were examined. It seems that the accused worker either was not present or he was not allowed to cross-examine the witnesses. He was allowed time for only 3 days to explain the charges against him. He was later dismissed. It is quite clear from the order of dismissal that there was no enquiry as it should have been done in the natural course. Later when Mubarak Ali sent his grievance petition, he was called for a hearing. But on that date it is alleged that Mubarak Ali led a mob of 7/8 hundred men who wanted to break the factory, destroy and damage it and wanted to assault the Supervisor and others. In fact, it has been alleged that the Supervisor has been assaulted by the outsiders who were led by Mubarak Ali and others. A report was sent to the Martial Law Authority. Mubarak Ali and others were tried by the President of the Summary Military Court and they were prosecuted under M. L. R. 16(A) and he was sentenced to suffer R. I. for 3 months and to 3 stripes of whipping.
8. Now though Mubarak Ali's first case was good in view of the fact that there was no proper enquiry into the charges framed against him, but when he was called for second hearing he committed misconduct which led to his prosecution, and conviction in the Summary Military Court. This has established his gross misconduct. He has not preferred any appeal against this conviction and as such, he cannot claim any benefit. Since this misconduct is connected with the factory affairs, such as attempt to destroy the factory and to assault the Supervisor, it cannot be said that this should be looked independently. This act of Mubarak Ali as found proved by the Summary Military Court-is a fresh act of misconduct and as the charges have been proved beyond shadow of doubt (since Mubarak Ali has not preferred any appeal against his conviction in the Summary Military Court) it must be held that he has been found guilty of misconduct and on this alone his dismissal order sustains. It is a fact that he failed to appear before his employer on 7-10-1969 and again on 15-10- 1969 for reconsideration of his order of dismissal passed on 12-9-1969. So on that score too he cannot claim any benefit. In view of this finding it appears that Mubarak Ali has been found guilty of misconduct by the Summary Military Court and he was convicted thereupon. As the occurrence I connected with his conduct with the Management, it cannot be mitigated and hence the order of dismissal passed by the Management on 1219-1969 sustains.
9. It is, therefore, ordered that the case be dismissed on contest, but without costs.
10. I have consulted the opinion of the Members in arriving this decision. The members have differed with each other in their opinion.