1. AWARD MD. NURUL ISLAM KHAN (CHAIRMAN).-This case has been filed by two employees of the second party, by first of whom is a truck driver and the second a Chowkidar, under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I. R. O.) against the orders of dismissal passed by the second party inrespect of the services of the first parties. Their case is that they were serving as truck driver and Chowkidar respectively In Joydebpur Building Division under the second party. On 3-9-1969 after nearly 23 hours continuous duties of the transporting Mixture Machine, first party Abdul Gafur was going off duty at 11-30 p. m. when he was ordered to report immediately with Department's truck to one Mansur Hussain, a private individual, to bring the latter's personal effects from Iswa rdi. Md. Abdul Hashem was also instructed to accompany the truck as driver's assistant/truck labour. With Mr. Mansur Hussain the first parties left for Iswardi in the empty truck at 11 a.m. on 4-9-1969. At Iswardi the said Mansur Hussain personally supervised and directed the loading of the personal effects on the truck. Driver Abdul Gafur objected to the over--loading of the truck and insecure and amatureish way the goods were loaded and the rotten rope used for securing the goods, but those objections were overruled by Mr. Mansur Hussain, who deputed one Abdul Latif, as his representative, to take care of the goods in a transit.
2. They reached, Mirpur at about mid-night when it was disclosed that two mattresses were lost apparently blown away off the truck as the faultry rope could not withstand the pressure of the gusty wind accompanied by heavy rainfall. It suspected that the loss occurred between Nayarhat and Mirpur and the truck was turned back to search for the lost goods but without any effect. After spending the night at Mirpur, the truck reached Mr. Mansur's residence at Azimpur at 8 and reported the loss. Suddenly, the first party received show-cause notice dated 16-9-1969 and 20-9- 1969 on the complaint of Mr. Mansur Hussain in quick succession alleging negligence, dishonesty, etc., in respect of the mattresses lost in transit. The first parties replied refuting the allegations. The first parties were placed under suspension with effect from 6-10-1969. They were then proceeded against departmentally on charges of misconduct and negligence of duty. Mr. I. Enayetullah was appointed enquiry officer. The enquiry officer and the Executive Officer gave report in their favour.
3. But the second party was not satisfied with the report. Next Executive Engineer, Railway Division directed them to appear before him on 29-12-1969. They suspected foul play and victimisation by the second party. So they sent all connected documents to the Chief Engineer and the enquiry officer. The second enquiry officer then proceeded with the enquiry. This time the first parties received a memo from the second party in which they were found guilty of numerous offences including those which did not form part of the charges. They were then directed to submit their second explanation. First party Abdul Gafur was dismissed on 4 charges of which charges Nos. 1 to 3 did not form part of the statement of charges. Similarly, first party Abdul Hashem was also dismissed on charges which were fresh and which were not included in the statement of charges.
4. These orders of dismissal were illegal and they were passed vindictively. Hence the two employees have prayed for directing the second party to re-instate them to their former posts with all their arrear wages and service benefits and they have also prayed for directing the second party to pay them damages of Rs. 1,000-00 each.
5. The second party filed written statement in which they stated that there was no cause of action and the first party had no locus standi to file this application and that the Court also has no jurisdiction to try this case. There having no industrial dispute arisen between the parties, the I. R. O., 1969 is not applicable in the present case. The first parties are Government servants and their removal from service is regulated by the East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 and that competent authority had drawn legal proceedings against the first parties and all formalities have been complied with. The first parties being Government servants they are not entitled to get any relief in the Labour Court.
6. Points for determination:
(1) Whether the application under section 34 of the I. R. O., 1969 is maintainable?
(2) Whether the first parties are workers under the I. R. O., 1969?
(3) Whether the first parties are entitled to any relief?
7. FINDINGS AND DECISION Point No. 1.-It appears that this application preferred by two individual employees who are Driver and Chowkidar respectively serving under the Superintending Engineer, Building Directorate, government of East Pakistan. A bare perusal of section 34 of the I.R.O. shows that there is to be an industrial dispute between the two parties such as employers and employers, workmen and workmen or between collective bargaining agent and the employer, etc., as has been defined in section. 2 of the I.R.O., 1969. In section 43 of the Ordinance it has been stated that none except the collective bargaining agent could raise an industrial dispute and if an industrial dispute as such is not raised, it shall be deemed to be non-existent. This being the position, in the present case we do not find any dispute between the collective bargaining agent and the employer as should have been the case. On the other hand, it appears that not one individual worker but two individual workers have preferred one application. It therefore, appears that this application is not maintainable under section 34 of the I.R.O., 1969 as an individual or individuals cannot raise an industrial dispute. This has been made clear ilk numerous rulings of the High Court and other important Courts. I would particularly refer, to the ruling reported in 1968 PLC 137. His Lordship Sardar Muhammad Iqbal has, after an exhausted discussion, observed as follows in the said judgment: "9. Thus the dispute regarding the discharge or dismissal of an individual workman is an individual dispute. Such a dispute can become the subject-matter of an industrial dispute only if the body of the workmen in general represented through Union . . . . . . . . ."
8. It is admitted that in the present case a Union or a collective bargaining agent did not raise the dispute between the two parties and as such, in the eye of law no industrial dispute exists. The dispute of these two first parties can only be regarded as an individual dispute. There is separate labour law for representation of individual dispute in Court. It has further been held by Mr. Inamullah Khan, Appellate Tribunal in the case between Messrs Pakistan Battery Manufacturing Company, Karachi v. Pakistan Battery Workers' Union (1970 PLC 481that even if a dispute has been raised in respect of dismissal of individual worker by a Union, an application, under section 34 of the I.R.O. in respect of such dismissal would not be maintainable. Here is the observation of the Appellate Tribunal, West Pakistan the right to dismiss a workman is not a right which can be said to have been guaranteed or secured under the West Pakistan Industrial and Commercial Employment (Stand--ing Orders) Ordinance, 1968. The right to dismiss a servant follows from Contractual Right between the parties, namely, the employer and the employee. The right to dismiss the emplo--yees is a Contractual Right and it cannot be said to be a right which has been guaranteed under the Standing Orders Ordinance. The Standing Orders Ordinance proceeds on the presumption that the master has a right to dismiss its servant. It has, in fact, made provisions to safeguard the interest of the workers than the employers. There is as such no denial to the conclusion that the employer could dismiss its employee without taking resort to the Standing Orders Ordinance, and it cannot, there. fore, be said that any such right was guaranteed, under the said provisions of the Standing Orders. The provisions of section 34 of the Industrial Relations Ordinance, 1969 in these circumstances was not attracted."
9. The Chairman, Industrial Court, West Pakistan has further held that dismissal of individual workman for misconduct does not constitute an industrial dispute. This has been reported in 1970 PLC 591.
10. The observation of the learned Chairman is as follows : "The case of the dismissal of any individual workman on a charge of misconduct cannot reasonably or legally be treated as being a dispute or difference between the employers and workmen which is connected with the employment or non---employment or the terms of employment or the conditions of work of any person. If such dismissal has been ordered by any employer in accordance with any departmental rules or regulations then there is no legal warrant for regarding it as constituting an industrial dispute requiring adjudication by a Labour Court. The terms `employment' and `non-employment' that occur in the definition of an `Industrial dispute', vide section 2 (xiii) of the Industrial Relations Ordinance, 1969 cannot by any stretch of the imagination be believed to include the dismissal of any individual workman on a charge of mis-- conduct."
11. So this being the position, it is quite clear that this dispute having not been raised by any Union or collective bargaining agent, is not an industrial dispute and has not even the locus stands to raise an industrial dispute in respect of the subject matter of dismissal of the first parties, and that even thereafter it is found that there is no Union of these first parties and no dispute, according to lax has ever been raised by any such Union. Therefore, the application is not, prima facie, maintainable.
12. Point No. 2.-It has been pleaded that the first parties are workers under the I. R. O., 1963 insomuch as the establishment under which they worked is an industry of the nature which any private agency could run and that other private agencies in the country are running or doing such work as the office of the Superintending Engineer is doing through these present first parties or such other persons. It appears that the nature of the duties performed by the first parties come within the definition of work performed by ordinary workmen and that the establishment under which they were working could have been profitably run by private agencies and it is obvious that private agencies in the country are running such industries or services. Only because that the Government has extended its function in such avocations or industries would not mean that they would not be treated as industries and the workmen working under such establishment would not be regarded as workmen under the I. R. O. It has been submitted that workmen working under similar establishment under the Central Government such as the Pak. P. W. D. has been treated as workers and their Union has been registered and recognised by the Government agency. There cannot be any unequal treatment between two sets of workers in the same country under the same law.
13. Further, the workers doing the same work if were given the facilities of Trade Unionism being regarded as workers under the private agencies could not be deprived of the same right when they are doing the same work under any extended departmental machinery of the Government. By all definitions the present first parties are workers working in the field service of the Government in a department which is doing such work or rendering such services which falls within the definition of industry, etc., and hence these first parties should be treated as workmen.
14. Point No. 3.-For all these reasons stated above, it appears that the application in the present form is not maintainable and hence the two first parties are not entitled to any relief.
15. The application, therefore, is dismissed on contest.
16. I have considered the written opinion of the Members while arriving at the decision above.