' The decision dated 25th May, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No, 4, Faisalabad has been challenged in this appeal, whereby the grievance petition of the appellant for his reinstatement in service was dismissed. On behalf of the respondent cross objections have been filed, which are being decided alongwith the appeal.
2. The appellant was a messenger/peon. On the allegation of misconduct be was charge-sheeted and after holding an enquiry was dismissed from service. The enquiry proceedings show that the appellant was neither afforded opportunity to cross-examine the witnesses examined by the respondent, nor was allowed to examine any witness in defence. In spite of these defects the learned lower Court says that the enquiry was properly held. With different ink afterwards a note was added to the effect that opportunity for cross-examination was given but the witnesses were not cross-examined. If after recording the examination-in-chief of the witnesses, such a note had been given, the note would have been in the same ink and had been put in the new para. Since at the end, the signatures of the witnesses and of enquiry officer were appearing, there was no space to give the note in the new paras., therefore, in the same line note was added afterwards with a different ink. The size of the words in which the note is recorded is smaller than the size of the words and letters of the body of the statements. So far as the statements of Baba Sadar Din, Muhammad Sadiq, Muhammad Sharif, Ibad Ali and Abdul Hamid are concerned, there is no note of giving opportunity of cross-examination. The appellant was, therefore, wrongly dismissed from service and his grievance petition wrongly disallowed.
3. Two points have been raised in cross objections. One is that terms and conditions of employment of the Bank's employees are governed by Wage Commission Award, which is not enforceable under section 25-A o the Industrial Relations Ordinance, 1969. The objection is wrong.
Section 38-D of the Industrial Relations Ordinance, 1969 provides that the decisions of the Wage Commission would be heard to the award of the commissions and provisions of Industrial Relations Ordinance, 1969 would apply to it. Section 25-A, being a provision of Industrial Relations Ordinance, 1969, is applicable and infringement of rights guaranteed by the Wage Commission Award can be redressed by the Labour Courts under the said section. The objection, therefore, is overruled.
4, The second objection is that a dismissed person is not covered by the definition of workman as defined in the Industrial Relations Ordinance, 1969. No doubt, present tense has been used by using the words 'is employed' in section 2 (xxviii) but the intention of the Legislature was not that the persons, who are no longer in employment, are not workmen. Not only in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 but in other laws also where worker, employee or servant, has been defined, present tense has been used, such as section 2 (n) of Workmen's Compensation Act and its Schedule-II, section 2 (i) of Standing Orders Ordinance, 1968, section 2 of the Factories Act, section 2 of the Civil Servants Acts (Central & Provincial). The persons on account of whose dismissal, termination etc., an industrial dispute has been brought or who have been dismissed terminated on account of raising an industrial dispute, have, no doubt, been included in the definition of workman, but this provision is for those who otherwise are out of the pale of workman such as supervisors getting pay more than Rs, 800 and those who are performing managerial duties. If the intention of the Legislature had been that dismissed or otherwise terminated persons should not have remedy of re-instatements, there would have been no need of promulgating Labour Laws and constituting special Labour Tribunals, because remedy by way of claiming damages was already available in the ordinary civil Courts for wrongful termination from service.
The promulgation of Pakistan Essential Services (Maintenance) Act further discloses the intention of the Legislature. This is noteworthy that under section 5 no other penalties but the penalties of wrongful termination of employees or wrongful closure of establishment resulting in discharge of the employees, have been declared offences and the Authority specified by the Government only has been declared as competent to hear the cases. Supreme Court has held in PLD 1982 SC 113 that only the Authority mentioned in section 7 is competent to bear such cases and remedy the wrong done by illegal dismissal or termination. If it is held that dismissed or terminated persons are no longer workmen to get remedy from the Labour Courts, it would mean that the intention of the Legislature is that the employees of the establishments declared essential services should have more secured rights than the employees of the other establishments. Obviously, this is not the intention of the Legislature. I, therefore, overrule the objection.
5. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be re-instated in service. Since the appellant did neither urge nor prove before the learned lower Court that he remained jobless during the period of his dismissal, he is not entitled to back benefits.