' This appeal is directed against the order, dated 26th February, 1983, passed by the Sind Labour Court Np. III, Karachi, dismissing the application filed by the appellant under section 25-A, I. R.
0. 1969, for re-instatement with back benefits.
2. The facts leading upto the appeal briefly stated are that the appellant was working as a permanent Packing Operator in the respondent establishment since 1978. She was charge-sheeted for act of misconduct, vide letter, dated 29th September, 1981. She failed to submit her explanation on the ground that Mr. Abdul Kalam, the then Manager Administration of the respondent establishment had assured that the charge-sheet shall be withdrawn. However, an enquiry was ordered and Mr. M. Ashraf Jaliwala was appointed an Enquiry Officer. The appellant protested against his appointment on the ground that he was instrumental in drafting the charge-sheet and, therefore, could not act as an impartial Enquiry Officer, with the result that the Enquiry Officer was changed and Mr. Hanif, the Manager Accounts was appointed in his place. The enquiry was fixed on 18th October, 1981, but the appellant failed to attend with the result that the enquiry was postponed to 20th October, 1981, but she failed to attend on that date also. The enquiry was postponed on 28th October, 1981, when she attended the enquiry but boycotted it with the result that the enquiry was held ex parte finding her guilty for the alleged acts of misconduct. However, she alleged that when she appeared before the Enquiry Officer, on 28th October, 1981, she was told that the enquiry had already been conducted and completed on 27th October, 1981. Ultimately, she was dismisses from service on account of the findings of the Enquiry Officer in the enquiry report by an order of dismissal, dated 4th November, 1981, passed by Mr. Shahid Naser as Factory Manager.
She served a grievance notice on the respondent and her grievance having not been redressed she filed an application under section 25-A, I. R. O., 1969, before the learned Labour Court which dismissed it. Aggrieved by the order, the appellant has come up in this appeal.
3. I have perused the material evidence available on the record. The appellant examined herself and Mr. Fateh Muhammad, then General Secretary of the Employees' Union in the establishment and Syed Abdul Kalam, the then Manager Administration, whereas the respondent establishment has examined Mr. Haneef, Enquiry Officer and Laiq Ahmed Khan, the Manager Personnel of the establishment.
4. I have heard the learned counsel appearing on behalf of the parties, Mr. Abdul Majeed for the appellant and Mr. Rifat Usmani for the respondent establishment. Mr. Abdul Majeed for the appellant has raised two-cold contentions : firstly, that neither the disciplinary proceedings instituted against the appellant nor the dismissal order passed were by the competent authority under the law ; and secondly, the dismissal order even on merits was neither just nor proper as the domestic enquiry was rushed through and the appellant was victimized on account of her trade union activities. Mr. Rifat Usmani on behalf of the respondent-establishment has resisted both the pleas and has contended that the impugned orders passed were by the competent authority and that the appellant intentionally avoided to take part in the enquiry proceedings with the result that the findings of the Enquiry Officer were against her.
5. As regards the first contention, it would be convenient to refer to Standing Order 12 which reads as follows : ' The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance.
' The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15."
' The relevant sub-clause (4) of the Standing Order 15 reads as follows :- "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstance alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman : ' Provided that the workman proceeded against may, if he so desired for his assistance in the enquiry, nominate any workman employed in that establishment the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours. Section 2 (c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, defines the "employer" as follows :- "(c) "Employer" means the owner of an industrial commercial establishment to which this Ordinance for the time being applies, and includes in a factory, any person named under clause
(e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory : (ii)
' On the admitted facts of the case of the parties and as disclosed by the evidence on the record, the respondent establishment is admittedly a factory, and under section 9 (1) (e) of the Factories Act, 1934, before work is begun in any factory after the commencement of the Act, or before work is begun in any seasonal factory in each season, the occupier shall send to the Inspector a written notice containing the name of the person who shall be the manager of the factory for the purposes of the Act. It would, therefore, be clear that in view of the above-mentioned provisions the employer to institute the enquiries or to grant approval of the dismissal would be either an owner or a manager of the factory named or notified within the meaning of section 9 (1) (d) of the Factories Act, 1934. In the instant case on the basis of the evidence adduced by the parties, the enquiry was admittedly initiated and instituted by a charge-sheet, dated 29th September, 1981, signed by S. Mohsin Akhtar, Manager Production and the order of dismissal, dated 4th November, 1981, was issued and signed by S. Shahid Naser as Factory Manager. It has been contended on behalf of the appellant that S. Shahid Naser was neither the owner nor was named or notified as Factory Manager and, therefore, he was not legally competent to approve or sign the dismissal order.
Similarly, S. Mohsin Akhtar being only a Manager Production, neither owner nor a Factory Manager was legally incompetent to institute enquiry and sign the charge-sheet, dated 29th September, 1981, by which the enquiry was initiated and instituted. The contention to that effect as would appear from the evidence on the record was raised right up from the initial stage as it was so contended in the grievance notice, in the grievance application as well as in the affidavit filed in evidence of the appellant herself. It has been specifically contended therein that the dismissal order for the reasons above-mentioned was not passed by the competent authority under the law.
In the circum- stances, the burden lay on the respondent in view of the mandatory provisions of Standing Order 15 (4) to prove affirmatively that the dismissal order was passed as well as the enquiry was instituted by the authority legally competent. In that respect the evidence adduced on behalf of the responder establishment would clearly show that S. Mohsin Akhtar as well as S. Shahid Naser were neither the owner nor the Factory Manager named or notified under the relevant law, respectively. On the contrary the Enquiry Officer, M. Hanif has admitted in very clear terms that he was appointed as an Enquiry Officer by Manager Production. He has further admitted that Mr. M.
Ashraf Jalilwala was the Factory Manager in September, 1981, and that S. Shahid Naser was the occupier of the factory. He has further admitted that he had submitted the report of the enquiry in original to the Factory Manager, Mr. M. Ashraf Jalilwala. Laiq Ahmed Khan, Manager Personnel examined on behalf of the respondent has said in very clear terms that Mr. S. Shahid Naser was notified as an occupier under the Factories Act, 1934. He has further said that he can produce in that respect the documents, dated 14th April, 1981, vide Exh. R 2. He has further said that they are half-yearly returns and not the notifications. According to him there is an endorsement of the Labour Department on it, dated 15th January, 1981 that it had been received. According to him they had received intimation of the Labour Department about the occupier and Factory Manager under the Factories Act and that he can produce such documents. According to him, Mr. S. Shahid Naser has left the job and was not in the factory when he joined in April, 1981. Reference to the documents produced by him and Exh. R-2 would clearly show that Mr. M. Ashraf Jalilwala had signed the returns as Factory Manager whereas Mr. S. Shahid Naser signed on behalf of the respondent- establishment, there is no room for doubt that S. Shahid Naser was the occupier of the Factory Manager. I am at a loss to understand in view of what has been stated above, as to how occupier would include 'Factory Manager' when the learned counsel on behalf of the respondent puts forth such an argument. 'Occupier' under section 2 (j) of the Factories Act, 1934, means the person who has ultimate control over the affairs of the factory. Under section 9 (3) of the Factories Act, 1934, during any period for which person has been designated as manager of a factory under this section, o during which the person designated does not manage the factory, any person found acting as manager, or if no such person is found, the Occupier himself, shall be deemed to be the manager of the factory for the purposes of this Act. This does not seem to be the case there as Mr. M. Ashraf Jalilwala was admittedly named as factory manager. Mereover, the Occupier may be an owner, he may be Lessee or even mere Licensee having right to occupy the property and dictate how it is to be managed. Mr. S. Shahid Naser ultimately left the job as admitted by Laiq Ahmed. In such a situation he can neither be considered as owner of the property nor a factory manager unless he was deemed to be a factory manager under the provision of section 9(3) o the Factories Act, 1934. It is true that the provisions of Labour Laws should be construed liberally as they have been so enacted to benefit workers and should be construed in a sense favourable to the interest of the employees, as held by the Supreme Court of Pakistan in Forbes Forbes Campbell & Company Ltd. v. Habibur Rehman . The intention of the Legislature is clear that anybody considering himself as authority in the establishment cannot institute enquiry proceedings and pass a final order of dismissal. In order to safeguard the interests of the employes, only the authority as contemplated' by the mandatory provisions of Standing Order 15 (4), could legally pass such orders. Accordingly, in view of the admitted position as disclosed in the evidence adduced on behalf of the respondent-establishment itself, neither Mohsin Akhtar nor S. Shahid Naser were either the owner of the establishment or named or notified as factory manager respectively and thus not employers within the meaning of Standing Order 15(4). Thereafter, neither Mohsin Akhtar was legally competent to initiate the enquiry nor S. Shahid Naser to approve, pass or sign the dismissal order. Accordingly, it is very clear to me that the impugned order of dismissal of the appellant was not passed by the competent authority in law, and therefore, it cannot be legally sustained.
6. In view of my findings above-mentioned to the effect that the impugned order of dismissal of the appellant cannot be legally sustained it would be unnecessary and inappropriate to discuss the merits of the case leading to the order of dismissal and give a finding with regard to the second contention.
7. The result is that impugned order passed by the learned Labour Court is set aside and the appellant is re-instated. The respondent may hold a fresh enquiry within a period of three months in accordance with law. The question of award of back benefits shall depend upon the result of the enquiry. The appeal is allowed accordingly. 1982 SCMR 651