1. MD. ANWAR HUSSAIN (CHAIRMAN).-This is an application under section 25(1)(b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 for re-instatement in service with back wages.
2. Fact of the case is that petitioner Nesar Ahmed was a worker in Rangpur Sugar Mills, Mohimaganj from September 1956. Once he was the Secretary of the Rangpur Sugar Mills Workers' Union. His complaint is that for his Trade Union activities he has been victimised and was discharged from service with effect from 1-5.70 on some charges which were false. He was charged for violating moral code and for act subversive of discipline amounting to misconduct in the sense that he kept an unmarried girl aged about 15 and made her, in family way by illicit connection. According to the complainant the girl was his wife and he committed no offence and as such discharge on that ground is unlawful. It is also claimed that he was not given requisite time for showing cause.
3. Upon this ground the complainant Nesar Ahmed claimed re-instatement of his service with back wages.
4. The application is resisted by the 2nd party Rangpur Sugar Mills Ltd. Their defence is that the complainant was in illicit connection with an unmarried girl name Munni while they were living in Mill's quarter and as a result, his neighbours complained and so Nesar Ahmed was charged for misconduct and after an enquiry was discharged.
5. Points for decision in the trial, therefore, are:
(1) Whether Legal procedure was observed?
(2) Whether the complainant was guilty of misconduct?
6. FINDINGS AND DECISION Point No. 1.-Admittedly complainant Nesar Ahmed was a worker in the Rangpur Sugar Mills. He was also for sometime Secretary of the Workers' Union. He was charged for misconduct in the sense that while living in the Mill's quarter, he kept an unmarried girl named Munni aged about 15 years and made her in family way. Accordingly a charge was framed on 27-12-69 and complainant Nesar Ahmed was asked to explain by 9 a.m. on 30-12-69. From the evidence of Mr. Abu Baker Khan a Labour Welfare Officer of the Mill it appears that the charge was handed over to the complainant Nesar Ahmed at about 12 noon on 27-12-69. Under section 18 of that Act no order of discharge or dismissal of a worker shall be made unless the allegations against him are recorded in writing and he is given a copy thereof and not less than three days' time to explain. In this case copy of the allegations was served at 12 noon on 27-12-69 asking the complainant to explain by 9 a.m. on 30- 12-69. So clear 3 days notice was not given for the explanation. The defence contended that time was sufficient for 3 days under the General Clauses Act. According to him, if the day of notice be excluded still there were 3 days left from 28-12-69 to 30-12-69. His contention could have been accepted if explanation would not have been asked for by 9 a.m. on 30-12-69.
7. From the evidence of the Welfare Officer it also appeared that the complainant had not submitted any explanation. He was simply heard on 30-12-69. So when the complainant could not submit any explanation in writing for want of time the discharge order was unauthorised as legal procedure was no observed.
8. The point be accordingly decided in the negative and in favour of the complainant.
9. Point No. 2.-As to merit of the case it is proved by evidence of both complainant Nesar Ahmed as well as the Welfare Officer that the complainant was living with an unmarried girl named Munni and made her in family way. There was commo--tion in the locality resulting in this charge.
10. Although the complainant claimed Munni as his wife, he could not produce the cabinnama before the enquiry or thereafter. A cabinnama has now been produced. It was registered on 9-2-70 showing negotiation of marriage on 3-11-75 B. S. corresponding to March 1968. As the cabinnama has been registered after the charge, in our finding the marriage if any took place on the date of registration on 9-2-70 and not before. As the girl was in family way before December 1969 it was due to illicit connection amounting to misconduct on the part of the complainant. Thai charge was, therefore, valid on fact. But as the procedure for discharge was defective, the discharge is illegal.
11. In this connection it is pertinent to observe that a lesser punishment of a discharge can be inflicted on a charge for dismissal. But for defect in procedure, the discharge order cannot be upheld.
12. Members were consulted and their opinions considered.
13. Hence ORDERED that the application be allowed on contest. The discharge order be vacated and the 2nd party be directed to re-instate the complainant Nesar Ahmed within 15 days of order with half back wages.