1. DECISION The National Motors Employees* Welfare Union vide their letter No. NMEWU/74/43, dated 3rd June 1974 had requested the Director of Labour, Sind who was notified as the Central Labour Commissioner under the Essential Services (Maintenance) Act, 1952 to issue his Directions for reinstatement of the following dismissed workers with retrospective effect and benefits of back service:-- 1. Mr. Mumtaz Ali Badge No. 131-80 2. Mr. Dadu Khan Badge No. 106-28 3. Mr. Nishan Ali Badge No. 202-14 4. Mr. Aitbar Gul Badge No. 101-1 While the case was under consideration of Director of Labour in his capacity as the Central Labour Commissioner, the Federal Government under their Notification No. S R. O. 1004(I)/74, dated 22nd July 1972 empowered the Chairman, National Industrial Relations Commission to regulate subject to the other provisions of Essential Services (Maintenance) Act, 1952 the wages and other conditions of service of persons engaged in any employment or class of employment to which the said Act applied. Accordingly, the file containing the demands submitted by the National Motors Employees' Welfare Union was received from the Labour Directorate, Karachi on 22nd August 1974. Both the parties were directed to appear before me on 27th August 1974 at Karachi to explain their case. On 27th August 1974, a copy of the memorandum filed by the applicant was handed over to the learned counsel for the respondent.
2. On the next date of hearing i.e. 12th September 1974 the applicant requested for a short adjournment on the ground that there was possibility of amicable settlement being arrived at between the parties. I very reluctantly acceded to their request and adjourned the case to 2nd October 1974. However, l made it clear to the applicant that in future no unnecessary adjournment would be granted The case was fixed for hearing on 2nd October 1974 when the respondents were directed to submit their reply statement on 5th October 1974. A copy of the reply statement was handed over to the leamed counsel for the applicant who wanted to study it. The case was accordingly adjourned to 8th October 1974. On 8th October 197L Mr. F. U. Khan stated that he had to submit certain documents in connection with re-instatement of four workers who have been dismissed by the Management. He promised to do the needful at Lahore on 15th October 1974 and the case was accordingly fixed for hearing on 23rd November 1974 at Karachi. The facts pertaining to these cases may briefly be stated as follows:-- According to the applicant, the three workers namely Mumtaz Ali, Nishan Ali and Dadu Khan were charge-sheeted under Standing Order 15{3)(h) of the Stan ling Orders Ordinance, 1968 for allegedly leaving their work place and instigating others to leave and come out of the factory to join the unlawful procession and assemble near the water tower of the company. Enquiries were held into the charges against all these three workmen on the same date i.e. 7th May 1974 and the witness common in the equiry against all the three workmen was Mr. Khan Afzal, Security Sergeant. It has been alleged by the applicant that no other witness was called. The workers were dismissed on 10th May 1974. They were not given second show-cause notice before the orders of dismissal were passed and they were also not given a personal hearing by the Employer before issuing the orders of dismissal. It has, also been alleged that a copy of the enquiry report and the enquiry proceedings was not supplied to the workers. It has also been pointed out by the applicants that these workers were allegedly found guilty of riotous and disorderly behaviour and acts subversive of discipline. According to the applicant the only allegation against the workmen was that they participated in a procession outside the factory which canaot be said to be unlawful or subversive of discipline. The applicant denied that any such procession was taken out or any of the workmen participated in it. As regards the fourth workman Mr. Aitbar Gul it has been stated by the applicant that he was charge-sheeted on 18th April 1974 on the allegation that he refused to carry out the orders of his Foreman and that he hurled abuses. It has been stated that the enquiry in his case which was scheduled to be held on 22nd April 1974 was adjourned to 24th April 1974 and again to the 30th April 1974, on the request of the Management. On the 29th April 1974, the workman was arrested and released on bail on the 9th May 1974. It has been alleged that although the Management knew that the workman was under custody, the date of enquiry was fixed on the 30th April 1974 and again on the 2nd May 1974. The next date of hearing was not communicated to the worker who was at that time in custody. The applicant has stated that the enquiry held on 2nd May 1974 admittedly was an ex parte and as such the entire proceedings and subsequent action taken against the workman was illegal. This workman was issued second show-cause notice on 13th May 1974 to which he had replied that as he was arrested on 29th April 1974, and was released on 9th May 1974, he could not attend the inquiry. He, however, requested for a chance to be given to represent his case which was refused.
3. Xb applicant further submitted that all the four workmen had more than 10 years of service with the resoondents and all of them are highly skilled workmen specialised in their job and had clean record of service without any blemish. The applicant prayed that the case of these workmen deserved equitable and sympathetic consideration and they deserved to be re-instated. The respondent who appeared before the Director of Labour, Sind in his capacity as Central Labour Commissioner submitted that the application was misconceived and not maintainable and that the Central Labour Commissioner had no jurisdiction to entertain the same. They aLo pointed out that the orders passed by the Managing Director in due compliance and in exercise of his statutory powers under the Economic Reforms Order and having regard to the terms of the said Economic Reforms Order was not subject to challenge in the proceedings before the Central Labour Commissioner. The Central Labour Commissioner, however, held that the provisions of Article * did not oust specifically the jurisdiction of the Central Labour Commissioner who is an executive authority, if the jurisdiction was otherwise vested in the Central Labour Commissioner by any law for the time being in force, and that exercise of the powers under the Essential Services (Maintenance) Act, 1952 was not barred by the provisions of Article 8 of Economic Reforms Order.
4. The respondents also contended that the dismissal from service of the four persons was in accordance with law and with reasonable excuse within the meaning of Pakistan Essential Services (Maintenance) Act, 1952. It was also submitted that in any event, the grievance, if any, of any person arising out of discontinuation of his employment must be invoked by him personally and that the Union which has purported to act on their behalf has no locus standi to do so. The respondents have stated that the three workers namely Mumtaz Ali, Nishan Ali and Dadu Khan had left their work place and instigated other workers to leave their work place and come out from the factory building to join the unlawful procession formed by them anJ to assemble near the water tower of the company during working hours. Such acts, it was charged, constituted the misconduct of disorderly behaviour and act subversive of discipline. It was stated that the enquiry was duly held by the Assistant Supply Manager against f- ur workers including Mumtaz Ali and Nishan Ali on 7th and 8th May 1974, in which these workers were present and also the Union's Representative, Mr. Ikblaq-ur-Rehman. The workers took full part in enquiry and cross-examined witnesses and made their own statements. The witnesses on their behalf were duly called and examined and their statements were also recorded. The Enquiry Officer found Mumtaz Ali, Nishan Ali, and Mumtaz Saleern guilty of offence but he gave the benefit of doubt to one Sartaj Ahmed. Similarly the Enquiry Officer who conducted the enquiry against Dadu Khan and 5 other workers also exonerated one worker and found the remaining four guilty including Dadu Khan. As regards Aitbar Gul the respondents stated that he had refused to obey the orders of his Foreman and also grabbed his neck and used dirty language against him. In view of the seriousness of the offence alleged he was charge- sheeted and suspended. An Enquiry Officer was appointed to hold an enquiry against him.
5. The date of enquiry which was fixed for 22nd April 1974 was postponed to 24th April at the request of Aitbar Gul. However, it has been stated that the enquiry was adjourned to 30th April 1974 on the request of Mr. Aslam Yousuf, Foreman with whom Mr, Aitbar Gul is alleged to have misbehaved.
6. According to the respondent Mr. Aitbar Gul was absent from duty on 29th April 1974 and the enquiry was postponed to the 2nd May 1974. Since Aitbar Gul failed to attend on that date the enquiry proceedings were held in his absence. The Enquiry Officer found him guilty and recommended his dismissal. He was, however, issued second show-cause notice to which he submitted a reply asking for indefinite adjournment of proceedings against him till disposal of his appeal under section 107/117, Cr. P. C. According to the respondent his reply was considered and Company being satisfied that his request was not maintainable, the recommendations of the Enquiry Officer for his dismissal were accepted by the Management. It was, therefore, concluded by the respondents that all action had been duly taken before the termination of services of four persons concerned. Their dismissal was with a reasonable excuse and there was no ground in law or equity for the said orders of dismissal to be set aside. I have gone through the record of enquiry proceedings filed by the respondents. The legal objections raised by the respondent have already been met with by the then Central Labour Commissioner under his order dated 15th July 1974, after giving an opportunity of being heard to both the parties. I agree with the views as contained in that order and shall, therefore dispose of the applicati on in exercise of the powers vested in me .under section 6 of the Essential Services (Maintenance) Act, 1952. I find that the complaint submitted by the Security Sergeant to the Management on 29th July 1974, lacks credence inasmuch as the enquiry report has proved that some of the workers who have been mentioned in that report were not present at the gate as has been stated in the report. The following facts have come to my notice in this connection:-- (a) Mr. Sartaj Ahmad who was charge-sheeted has been exonerated on the grounds that his written statement includes an attestation by the Inspector of his department stating that he was present in the Section and the Enquiry Officer had no reason to disbelieve that attestation.
(b) Mr. Sher Zarnan had produced an injury slip dated 29th April 1974 showing that he passed out at l2 hours and this was duly signed by the Medical Officer. The Enquiry Officer gave the benefit of doubt to this man and the charge-sheet was subsequently withdrawn. (c)Zahid Ali produced a leave slip dated the 23rd April 1974 stating that he was on Sick Leave up to 30th April 1974 and resumed duty on 29th April 1974, which was checked and verified as correct by the Enquiry Officer.
7. The Security Sergeant in his report dated 29th April 1974 had stated that 18 workers as mentioned therein were responsible for blowing the horns and collecting the workers. The Management did not serve charge-sheet on all the 18 workers although their otfeace was the same but they picked only 13 workers out of these 18 and charge-sheeted them. This action of the Management smacks of partiality. It has also been noticed that orders on the report were issued for serving charge-sheet on 13 workers but in actual practice charge-sheets were served on 10 workers and 4 workers were not served with charge-sheets. One of the workers mentioned at Serial No. l2 of the report against whom no order for serving charge-sheet was issued was served with a charge-sheet. I am convinced that the entire enquiry proceedings were directed-.against some active members of the Union. Tbe report of the Security Sergeant indicates that workers formed a procession and one Mr. Mumtaz Saleern had raised slogans of Allah-ho-Akbar and Welfare Union Zindabad. The speech made by Mr. Ikhlaq-ur-Renman in the meeting could also not be termed objectionable. The report also indicates that the workers wasted ten minutes of the factory time. I have also noticed that although Mr. Mumtaz Saleern was charged with the same offence but his services weie not terminated and his increment was withheld for one year. I feel the punishment awarded to the three workers namely Mumtaz All, Dadu Khan and Nishan Ali was the extreme one as provided under Standing Orders Ordinance. 1 am of the opinion that the extreme punishment is not justified in these cases and 1 direct that they should be re-instated with full benefits from the date of their dismissal. The Company however is directed to withhold their increments for one year as has been done in the case of Mumtaz Saleern. As regards Aitbar Gul's case I find that the proceedings for the second time were adjourned till 30th April 1974 on the request of the complainant Mr. Aslam Yousuf, lt appears that Aitbar Gul was not granted bail from 29th April 1974 and till 9th May 1974 when he was in Jail. It can safely be assumed that tbe Enquiry Officer knew that the worker was in Jail and it was necessary in all fairness to wait for his release and hold the enquiry when he was out of Jail. 1 he proceedings were conducted ex parte and the request made by Mr. Aitbar Gul that the proceedings should be postponed till after 25th May 1974, the date on which his case was fixed for hearing by the Court was not accepted. The fact that the Management got adjournment of the enquiry proceedings a day earlier than his arrest lends countenance to the view that they intended to hold ex-parte enquiry. As such the proceedings do not appear to be above board and the action taken on the report of the Enquiry Officer in dismissing Aitbar Gul was not justified. I, therefore, direct that he should be re-instated with effect from the date of his dismissal with full benefits.