DECISION ' This is an appeal against the order, dated 30-9-1989, passed by the learned Presiding Officer, Sindh Labour Court No, III at Karachi, whereby he ordered reinstatement in service of the respondent with full back benefits.
2. I have heard Mr. Mahmood Abdul Ghani, learned representative for the appellants and Mr. Ali Amjad, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
3. The admitted facts of the case appear to be that the respondent is a workman employed by the appellants and was General Secretary of the `C.B.A.' at the relevant time. In January, 1987 certain pamphlets were circulated in the factory containing certain derogatory allegations against the Managing Director and other Senior Executives of the appellant establishment. These Circulars, however, were pasted on the 'Notice Board' of the factory on 13-1-1987. Show-cause notices were issued to the respondents as well as the President and Publicity Secretary to the C.BA. Union, on 18- 1-1987, which was duly replied by them vide letter, dated 20-1-1987, wherein all the three stated that as the pamphlet had already been widely circulated outside as well as within the factory, they in good faith thought it better to display for information of everybody so that necessary corrective measures could be take by the management but they had no intention to malign the management and that the notice was removed voluntarily on 18-1-1987. The appellants, thereafter, on 21-1-1987 served a 'charge-sheet' upon the respondent with regard to the pasting of the aforesaid pamphlets on the Notice Board as they considered it an act of wilful insubordination and act subversive of discipline and a misconduct. This show-cause notice was replied by the respondent by letter, dated 26-1-1987 in which he challenged the legality of the issuance of charge-sheet and further alleged that he was being victimised because he was office-bearer of the Union. It was further contended by him that the act of pasting was done by the 'management of the Trade Union' which was a `Body Corporate' and he could not be held responsible for the act of the management of the Union. The appellants, however, considered it to be admission of guilt and therefore issued 'second show-cause notice' on 27-1-1987 and thereafter issued 'Dismissal order' on 28-1-1987. After service of 'grievance notice' upon the appellants the respondent filed 'grievance petition' before the learned Labour Court.
4. The main question that requires consideration is whether the appellant could have passed impugned order of dismissal without holding enquiry as required under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the 'Ordinance'). The relevant provision is reproduced as under:-- "(4) 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 circumstances 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: The bare reading of the provision would show that it is 'mandatory' for the employer to institute independent enquiry against the workman before dealing with charges against him. Admittedly no enquiry was held.
5. It is contended by Mr. Mahmood Abdul Ghani, learned representative for the appellants, that in case when guilt is admitted by the workman enquiry would not be necessary. It is submitted by Mr. Ali Amjad, learned counsel for the respondent, that in the reply to show-cause notice the appellant had never made any unqualified and unequivocal admission of any guilt, but rather he had challenged the right of the appellant to charge-sheet him and had categorically stated in the reply to the first notice, that they had no intention to malign anybody. Before going into the question whether the guilt was admitted or not by the respondent, the question that is to be considered is whether the enquiry as envisaged under Standing Order 15(4) could be dispensed with by the employer in case the workman admits the guilt.
6. Section 3 of the Ordinance provides that 'in every industrial or commercial establishment, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders'. Section 4 of the Ordinance prohibits the modification of Standing Orders that has effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the Schedule. The Ordinance, in fact, lays down minimum rights which are guaranteed to the workmen and in my opinion these mandatory provisions of the Ordinance cannot be modified or taken away by the employer at his will for any reason whatsoever.
7. Mr. Mahmood Abdul Ghani has relied upon the case of the Principal, Cadet College, Kohat v.
Muhammad Shoab Qureshi PLD 1984 SC 170. It may be pointed that that case was not covered by the Standing Orders Ordinance, but it was a case of an employee of a College, not covered by the West Pakistan Government Educational and Training Institutions Ordinance nor by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but his services were governed by the rules framed by the Board of Governors. In that case the employee was given opportunity to contest charges levelled against him but he admitted his guilt and tendered apology. In view of the above circumstances their Lordships were of the opinion that in view of the admission, any further trial was hardly necessary. Obviously that case is distinguishable from the instant case, as the question of violation of guaranteed right was not involved therein and the principles of natural justice were satisfied, as employee was given an opportunity to show cause wherein he admitted his guilt. Reliance was also placed on the case of Aftab Alam v.
Inspector-General of Police 1987 SC MR 1823. In that case the plea of the public servant before Service Tribunal was, that Departmental Enquiry was not held in accordance with the rules. Their Lordships, however, held that in view of the admission of the guilt of the petitioner the plea raised by him was devoid of merit. In that case the enquiry was held but the rules were not strictly followed in holding the enquiry. Obviously this case is also distinguishable.
8. Mr. Mahmood Abdul Ghani has also relied upon the ease of Cooper & Company Employees'
Union v. Messrs Cooper & Company Ltd. 1970 PLC 206. This case pertains to the period prior to the promulgation of the Standing Orders Ordinance, 1968 and the question whether enquiry was necessary or not was not considered by the Tribunal in that case. Reliance was also placed on the decision of Abdul I3ashir v. Road Transport Corporation, Lahore 1970 PLC 359. In that case the learned Industrial Court had held that as petitioner has admitted his guilt and offered apology in explanation to the charge-sheet, therefore, no further enquiry was called for. This case also pertains to the period prior to the promulgation of the Standing Orders Ordinance and furthermore besides expressing its view, no other authority or law has been referred to by the learned Industrial Court while arriving at the said view. The appeal was, however, decided mainly on the question of limitation. Reliance was also placed on 1980 PLC 972 but in that case domestic enquiry was held.
Similar is the position in the cases reported in 1980 PLC 999 and 1980 PLC 1051.
9. The provisions of Standing Order 15(4) are very clear and unambiguous and make it mandatory for the employer to hold enquiry before passing the order of dismissal. This provision has been violated by the appellants and therefore the order of dismissal was not sustainable and has been rightly set aside by the learned Labour Court.
10. Mr. Mahmood Abdul Ghani further submitted that they have right to hold an enquiry even after reinstatement of the respondent on the charges communicated to the respondent within the period specified under Standing Order 15(4). In support he has relied upon the case of Syed Mukhtar Hussain v. Punjab Labour Appellate Tribunal, Lahore 1980 PLC 985. I am inclined to agree with him.
11. In view of the above discussions the order of the learned Labour Court with regard to the reinstatement of the respondent is maintained. However, the appellants would be at liberty to hold the enquiry on the charges contained in the charge-sheet, dated 21-1-1987. The payment of back benefits to the respondent would depend upon the result of the fresh enquiry. However, if no fresh enquiry is instituted within three months, the amount of back benefits would be released to the respondent, after due verification. If the enquiry is instituted within the prescribed period, the amount of back benefits deposited in this Tribunal be deposited in some 'Savings Scheme' till the decision of the enquiry and successful party would be paid the principal as well as profits. Appeal disposed of accordingly.