1. AWARD SHAFFI MUHAMMAD R. AKHUND (CHAIRMAN).-This appli--cation under section 34 of the Industrial Relations Ordinance, 1969, has been moved by the Fishermen's Co-operative Society and Company's Employees' Union for re-instatement of M. A. Majeed, with full back benefits and continuity of service.
2. The case of the applicant Union, which claims to be the Collective Bargaining Agent, is that M. A.
3. Majeed was a workman employed by the respondent Society as Accountant on 30th June 1966. His consolidated starting salary, inclusive of allowances, was Rs. 820.00 per month and his duties were mainly clerical as well as skilful with no power of control or adminis--tration with respect to the affairs of the Society. It is alleged that, an account of inter-party rivalry, the said workman incurred the displeasure of the persons in the Management and his services were terminated by the order dated 26th August 1969. He was condemned unheard inasmuch as he was never called upon to explain the allegations against him nor was any inquiry made in the charges against him. Besides, the said workman was a party to the Industrial Dispute No. 57 pending adjudication in the Second West Pakistan Industrial Court at Karachi as he was concerned in certain demands raised in that dispute. He made representation against the order of termination to the Manage--ment but, getting no redress, he moved application No. 64 of 1969 in the Second West Pakistan Industrial Court, Karachi, which was rejected on technical grounds. The present application has, therefore, been made on the grounds that the services of the said workman have been terminated in violation of the mandatory provisions of the West Pakistan Industrial Employ--ment (Standing Orders) Ordinance, 1968, inasmuch as he was condemned unheard and the impugned order was passed at the the when the Industrial Dispute to which he was a party was pending adjudication.
4. The respondents, in their Reply Statement, have denied that M. A. Majeed was a workman or that he was concerned in the Industrial Dispute No. 57. Besides, the Second West Pakistan Industrial Court, Karachi, rejected the demands in that dispute. According to the respondents, M. A. Majeed was a Class I Junior Officer Incharge of Central Accounts Section and was also performing the duties of control of accounts administration and the accounts of let Plant and Cold Storage. He was appointed on probation for 6 months but was never confirmed as he was not found fit and was still on probation when his services were terminated. It is denied by the respondents that his services were terminated on account of inter-parse rivalry, or that he was condemned unheard. According to them, he was found Inefficient and negligent in performance of his duties. Various Memos were issued to him from the to the to improve himself but to no effect. Consequently, when it was found that his negligence of duties was causing damage to the respondent Society, a charge-sheet was served upon him and he gave expla--nation in writing. An enquiry was held in which he was given full opportunity to represent his case before the Enquiry Officer. Thereafter, the Board of Directors of the respondent Society passed the resolution terminating the services of M. A. Majeed. Thus, according to the respondents, his services were terminated validly and in accordance with law. It is further contended by the respondents that M. A. Majeed did not follow the grievance procedure laid down in Standing Order 18, and, on that account, the present application is not maintainable. This was one of the grounds on which his previous application No. 64 of 1969 was dismissed by this Court. The respondents have also contended that the application is the-barred.
5. After the applicant Union filed the Rejoinder denying the averments made in the Reply Statement, the evidence of the parties was recorded. The applicant Union examined M. A. Majeed, while the respondents examined their Administrative Officer Rafiqul Hussain. According to M. A. Majeed, the main cause for termination of his services was that he had refused to surrender some documents which he was keeping secret because some of the Directors, viz., Seth Muhammad Hussain and Deduck Issa being guarantors of a number of borrowers who were defaulters, were not qualified to serve on the Board of Directors. He, however, admits that the charge-sheet Exh. A, W. 1/4 was Served upon him and that he had given the reply Exh. A. W. 1/6. But, he denies that any enquiry was held against him. He further admits that he was appointed on probation and was never con-- firmed. The order of his appointment, produced by him as Exh. A. W. 1/3 shows that during the period of probation, his services were liable to be terminated without any notice and/or assigning any reason whatsoever.
6. The respondents' witness Rafiqul Hasnain states that M. A. Majeed was not a workman, being junior Class I Officer in the pay scale of Rs. 496 to Rs. 900 and having started with con--solidated salary of Rs. 820 per month. He further states that Domestic Enquiry was held by M. G. Nooruddin, one of the Directors of the respondent Society, in which M. A. Majeed was given full opportunity to explain his conduct and to defend himself. The resolution of the Board of Directors, produced alongwith the Reply Statement of the respondents, shows that after considering the report of the Enquiry Officer, the Board had resolved to terminate the services of M. A. Majeed as he was found to be incompetent, indifferent and irresponsible in his job, citing several instances thereof.
7. Thus, the terms and conditions of the appointment of M. A. Majeed show to his services could be terminated without any notice or assigning any reason whatsoever during the period of probation.
8. M. A. Majeed was admittedly on probation when his services were terminated. It is, however, urged by the applicant that his services could not be terminated except as pro--vided under Standing Order 15. The respondents have contended that M. A. Majeed was not a workman and hence the pro--visions of Standing Orders Ordinance, 1968, and I. R. O. 1969, were not applicable in his case.
9. However, assuming that M. A. Majeed could be defined a workman, it will still have to be determined if the present application under section 34 is maintainable. Now, this application was filed on 9th dune 1970 i. e. Before the amendment of section 34, which was amended in October 1970. Before the amendment, section 34 read as follows:- "Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the the being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute."
10. The West Pakistan Labour Appellate Tribunal Karachi, in a very elaborate decision in Appeal No. LHR-255 of 1970, held that the term 'Any party' did not include individual workman and that the termination of an individual workman was not an industrial dispute contemplated by section 34 which could be raised by the Collective Bargaining Agent. In another decision, reported in 1970 PLC 587, the learned Appellate Tribunal held that, when the breach complained was of the Standing Orders, the remedy lies to enforce the breach under the Standing Orders Ordinance, 1968, and not by raising an industrial dispute. To the same is the decision of the Industrial Court--- West Pakistan, reported in 1970 PLC 591. It was held therein 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 workman 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-employ--ment' 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 misconduct."
11. Therefore, in the light of these authorities, the termination of services of M. A. Majeed could not be said to be an industrial dispute and hence could not be made the subject-matter, of an application under section 34 by the Collective Bargaining Agent. Even under the amended section 34, the present application would not be maintainable, because M. A. Majeed admittedly did not comply with the provisions of Standing Order 18 whim are mandatory. It is now well settled law that the amended section 34 no doubt widens the scope for the workman to bring his grievance before a Labour Court, but it does not interfere with the operation of the Standing Orders Ordinance. 1968.
12. In the decision reported in 1971 PLC 157, it was hem as follows:- "Section 34 of the Industrial Relations Ordinance 1969, as amended by the Industrial Relations (Amendment) Ordinance (XIX of 1970), no doubt, widens the scope for a workman to bring his grievance for redress before a Labour Court, provided there has been an infringement of any of his guaranteed right under any law, award or settlement. Where the appli--cation is for the enforcement of certain rights guaranteed under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, any violation of these rights, would be justifiable under the provisions of the same law. Section 34 of the Industrial Relations Ordinance does not intend that the period of limitation and the mode of serving a grievance notice have been repealed. Had this been the intention of the Legislature, it would have specially repealed these provisions of the Standing Orders Ordinance or would have done so by implication. Both these intentions are not to be found in the Industrial Relations Ordinance, XIX of 1970. Therefore, it is obvious that section 34 does not interfere with the operation of the Standing Orders Ordinance, 1968. It simply widens the scope for a workman to apply to a Labour Court for the infringement of any of his right guaranteed under any law including the Standing Orders Ordinance, and as such where no grievance notice was served upon the employer under Standing Order 18, petition under section 34 of the Industrial Relations Ordinance, 1969 is liable to dismissal."
13. This decision has been consistently followed by the Labour Courts including the First Labour Court, Karachi, in Applications Nos. 22 and 23 of 1971. In fact the failure of M. A. Majeed to comply with the procedure laid down In Standing Order 18 was one of the grounds on which his previous appli-- cation No 64 of 1969 .Was dismissed. It appears that, having failed in that attempt, he has now brought the application through the applicant Union which also is clearly not main--tainable.
14. Therefore, for the reasons stated above, the appli--cation is dismissed.