DECISION This appeal is directed against an award in an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) whereby the learned Presiding Officer of Sind Labour Court No. III, Karachi, ordered the re-instatement of 66 workers with full back benefits. The facts giving rise to the present appeal briefly put ate these.
2. There were three settlement between the National Carpet Industries Employees--- Union (hereinafter called the respondent-Union) and the National Carpet Industries Limited ( hereinafter called the Management). The last agreement was arrived at on 2 October 1972. It is not necessary for the purposes of disposal of this appeal to go into the details of those settlement. The admitted position is that in October 1972, after a strike in some of the industrial concerns in Landhi Industrial Area, there was a general rioting and strike in that area, with the result that the entire area was under the control of police and military. Almost all the industrial concerns of Landhi Industrial Area remained closed in the month of October 1972. The case of the respondent Union as disclose in its application under section 34 of the Ordinance was that during the period of the operation of the settlement dated 2 October 1972, the Management illegally locked out 70 workmen, some of whom were office-bearers of the Union also. The Union brought to the notice of the Assistant Director, Labour, that the Management had illegally locked out 70 of its workmen. The Deputy Director, Labour welfare, was obliged as no settlement was arrived at between the parties, to make a report under section 46-A of the Ordinance to Labour Court No. III for such action as it considered necessary. This was done on 1 December 1972. Thereafter, an application under section 34 of the ordinance was filed on 16 December 1972.nd nd st th
3. The respondent-Union prayed for re-instatement of the workers with full back benefits:
4. The Management denied to have locked out any of its workmen. The case of the. Management was that it had charge-sheeted 24 of its workmen for being absent for more than 10 days without leave, Thei--r names are given in Exh. 12-F, in the Proceeding No. 1 ref 1972, tinder section 46-A ref the Ordinance. The Management stated that 8 of its workmen were transferred to the Head Office.
As they refused to go, they were charge-sheeted. Their names are given in Eah. 12-D, in the proceeding under section 4G-A. Of the Ordinance. The contention of the Management further was that 26 workmen bad resigned from service, whose. Names are given in Exh. 21-A, of the proceedings under section 46-A of the Ordinance. In respect ref certain women workers, the case of the Management was, as disclosed in the cross:-examination of Masihurrehman, that 15-16 women had left service on their own.
5. I have heard the learned Representatives for the parties and have come to the conclusion that the finding of the learned Labour Court cannot he assailed to in respect of 32 workmen, v ho have been dismissed from service without any enquiry. No useful purpose can be served to repeat, the reasons givers by the learned Labour Court for its conclusion that the services of 32 workers were dispensed with without complying wit the provisions of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (hereinafter called the Standing Orders Ordinance). It is, however, necessary to make it clear that out of those 32 persons two workmen, namely, Abdul Qadir and Mohammad Yousuf, as rightly held by the learned Labour Court, lead resigned from service They would, therefore, not ire ensiled to any relief. It would be also necessary to mention that though in the case of Shandi Gul the provisions of Standing Order 15 of the Standing Orders Ordinance hats trot been complied with, but as his name is not mentioned in the list Exh. 15-A, submitted by the respondent-Union, lie will not also be entitled to any relief. The name of Mohammad Suleman, General Secretary of the Union, is not mentioned in any of the lists given by the Management in Application No. 1 of 1972 or in Application No. 14 of 1972. Suleman admitted in cross-examination that he had been charge-sheeted and that he had received the copy of the charge-sheet. In his case also the provisions of Standing Order 15 of rue Standing orders Ordinance had riot been complied with, lie would, therefore, be entitled to re-instatement.
Thus the total number of workmen in whose case provisions of Standing Order 15 of the Standing Orders Ordinance had not been complied with comes to 30.
6. The final conclusion of the learned Labour Court reads as under:-- "This is an admitted position that Application No. 574/72, under section 34, Industrial Relations Ordinance, 1909, in which an undertaking dated 23-7-72, had been given, is still pending for adjudication before 2nd Sind Labour Court, Karachi. This is also an admitted position that race bearers and members of the applicant were dismissed from service during the pendency of above Industrial Dispute and without permission from the 2nd Sind Labour Court. Hence this dismissal was illegal being in violation to provisions of section 47 (2), Industrial Relations Ordinance 1969."
7. From an analysis of the above conclusion it would appear that the dismissal of the workmen was bad as, Firstly, they had been dismissed during the pendency of an industrial dispute and secondly, that the dismissal was against an undertaking given by the Management to the Labour Court.
8. A perusal of section 47(2) of the Ordinance would show that the office-bearers of the Union cannot be discharged or dismissed or otherwise punished or misconduct, except with the previous permission of the Labour Court. In the first place, there is nothing on the record to show as to who were office-bearers of the Union, except Suleman, the General Secretary. In the second pace, even the office-bearers of the Union can be dismissed front service with the permission of the Labour Court.
9. So far as the undertaking given by the Management is concerned it was denied by it that it had ever given any suck undertaking. The undertaking given by the Management is Annexure `A' to the Reply statement filed by Masihurrehman. It reads as under:--- "It is submitted that the respondent would not retrench or lay-of the workers of the factory as apprehended by the worker. Furthermore the question of closure of the factory does not arise at all.
It is further undertaken that the workers will not be victimized as alleged by the Union."
10. It is not the ease of the Union that Annexure `A' to the Reply Statement of the Management is not the undertaking given by the Management. The undertaking construed properly would only mean that the", would not take any illegal action against the workers. It does not debar the Management to take proceedings for misconduct against the workers. It, therefore, follows that those members; of the Union, who were not officer-bearers could be dismissed from service for misconduct. Section 4 of the Ordinance does not give protection to tire workman if he is guilty of misconduct not connected with the industrial dispute that may be pending. It has not been shown by the learned Representative for the Union that the industrial dispute that was pending had anything to do with the alleged misconduct committed by the workmen, namely, disobedience and absence from duty for more than 10 days without leave. So far as office-bearers of the union are concerned they cannot be dismissed even for misconduct without the permission of the court.
11. It would be necessary to mention before I proceed further that Application No. 1 of 1972 and Application No. 14 of 1972, were pending between the same parties and were inter-connected. 1 have gone through the record of both the cases and it appeared to me that the parties treated both the proceedings to be inter-connected, with the result that the evidence which was given in Application No. 1 of 1972, was not repeated in Application No. 14 of 1972. In this connection, the observation of the learned Presiding Officer of the Labour Court may also be reproduced. He observed as under :- "It is worthwhile to point out that present application is inter-connected with the Application No. 1 of 1972 under section 46-A, I. R. O., 1969. Hence both of them are being decided simultaneously."
12, It would have been better if the Court had made a formal order that the evidence led in the one may be read in the other. However, as the parties understood that the proceedings were inter- connected even if no formal order was made, the evidence in the one can be read in the other.
13. It is open to the Management in the case of 30 persons, who have been dismissed from service for misconduct and who have been re-instated because of non-compliance of the provisions of Standing Order 15 of the Standing Orders Ordinance, to comply with the provisions of Standing Order 15 of the Standing Orders Ordinance and if they are still found to be guilty to dismiss them from service and in the case of Suleman, General Secretary of the Union after permission of the Court. Had the proceedings been conducted by the Management in conformity with the provisions of Standing Order 15 of the Standing Orders Ordinance and section 47 (2) of the Ordinance and the workers were dismissed for misconduct, they would not have been entitled to any back benefits.
The back benefits in such cases must depend upon the result of the enquiry to be held. In this connection, it is pertinent to note that the workers were also responsible to some extent for non- compliance of Standing Order 15 of the Standing Orders Ordinance on the part of the Management, Mohammad Sultan in his cross-examination stated as under:- "On 29-10-72, I had received a charge-sheet at my house address. I get it read and explained. I did not receive a letter asking me to participate in the enquiry. I had gone to Mr. Khalil, Assistant Director Labour on 14-11-72, I had only shown him the charge---sheets, given to me and other workers."
14. The charge-sheet is also on the record of Application No. 1 of 1972. It is Exh. 12-F (Annexure 'E').
The charge-sheet clearly called upon the workers to show cause as to why they should not be dismissed from service or punished otherwise. They were called upon to submit their explanation within 48 hours of the receipt of the charge-sheets. There is nothing on the record to show that Suleman or any other worker submitted his explana--tion to the charge sheet. It seems to me that the workers non-co-operated from the very beginning to participate in the enquiry. The back benefits will depend upon the result of the enquiry. I am not awarding any costs to individual workman as none of the workmen appeared before the Court or showed any interest in the proceedings. It is only the General Secretary, who had been conducting the case on behalf of the workmen and filed his affidavit in support of the allegations made by him. He alone, therefore, is entitled to costs.
15. As regards 26 persons, who are said to have resigned from service, the learned Presiding Officer has rightly held that the Management has failed to prove, except in the case of four persons, that they had resigned from service. In the case of the rest of the workmen, mentioned in Exh. 15-A, therefore, besides 30 workmen about whom reference has already been made, the Management has failed to prove that they were charge---sheeted or had resigned from service. They would, therefore, be entitled to re-instatement. It may be mentioned here that the Management cannot be allowed to charge-sheet them for any of their past misconduct, as this would amount to an afterthought. Whether compensation should be allowed on re-instatement and to what extent, would depend upon the circumstances of each case. In the present case, the circumstances do not warrant that back benefits should be granted to these workmen. In the first place, none of these 24 workmen appeared before the Court to support the Union. In the second place, as would appear from the case of the Union, as put in the cross-examination of Mssihurrehman, that there was a general strike for the whole of the month of October 1972. The answer to the question put by the Union to Masihurrehman is as under:- "I cannot say definitely whether disturbances in Landhi area continued up to the last day of October 1972."
16. The case of the Management was that though there were distur--bances but the looms in its factory used to operate. One thing is clear that the workers of the factory were absent during the month of October 1972, without leave. It is another matter that some of the workers may have good excuse to offer. In the third place, there is no evidence that those workmen were: not employed somewhere else. In these circumstances, I do not think it just to order that these workers should be given back benefits on their re-instatement. I would hold that as the Management has failed to prove in the case of 24 workmen that it had any lawful excuse not to allow them to resume duty they are entitled to re-instatement. In these circumstances, I think ends of justice would be met if each of 24 workers is awarded Rs. 200.00 as compensation.
17. The case of the Management in respect of 11 women workers was that they did not resume work on their own accord. None of these women have appeared before the Court to challenge the statement of Masih--urrehman. In the list of workers, Exh, 15-A, there are 11 women, namely, (1)
Azizan, (2) Bano-I, (3) Bano-II, (4) Noorbi, (5) Tameezanbi, (6) Akhtari, (7) Latifan, (8) Allahdee (9)
Amina Bibi, (10) Saeedan, and (11) Rasheedan. They were all working on Charkha. I will accept the statement of Masih--urrehman, in the absence of any' evidence to the contrary, that these women did not resume duty on their own accord.
18. It is admitted by Mr. Wasi Ahmad, the learned Representative for the respondent-Union that Gul Badshah had been typed through mistake twice in the list Exh. 15-A. In the result, therefore, there are only 69 persons, who are said to have been locked out by the Management.
19. In the result, the following persons are re-instated. If the Management so desires it can hold an enquiry within a reasonable time, in accordance with Standing Order 15 of the Standing Orders Ordinance and proceed in compliance with section 47 (2) of the Ordinance :---
(1) Mohammed Younus,
(2) Naimat-ullah,
(3) Hundoo,
(4) Mohammad Yousuf,
(5) Abdur Rehman's,
(6) Abdur Rasheed,
(7) Mirza A. Rauf Beg,
(8) Lal Khan,
(9) Mohammad Ali,
(10) Hashmat Ali,
(11) Maqsood Ali,
(12) Mohammad Shafi,
(13) Badar Zaman,
(14) Azmat-ullah,
(15) Hashim Ali,
(16) Mohammad Rasheed,
(17) Mohammad Ayub,
(18) Nazeer Hussain,
(19) Haider Zaman.
(20) Dawood Khan,
(21) Shaukat Ali,
(22) Mazhar Husain,
(23) Tota Khan,
(24) Riaz Ali,
(25) Javid Akhtar,
(26) Shakil Ahmad,
(27) Abdullah,
(28) Adam Khan,
(29) Mohammad Younus, and
(30) Mohammad Suleman.
20. In the result, the award of the learned Labour Court is modified to this extent that 30 workmen, whose names have already been given, would be; re-instated and their back benefits would depend upon the result of the enquiry. Eleven women whose names have already been given are not entitled to re-instatement; the remaining 24 persons mentioned in Exh. 15-A. Are to be re- instated and would get Rs. 200.00 each as compensation. The Management to pay Rs. 200.00 within a week as costs to Mr. Wasi Ahmad. The Management to pay Rs. 500.00 as costs to Mohammad Suleman, General Secretary of the Union. The amounts awarded to the workmen and the General Secretary to be paid within a month.