JUDGMENT These Appeals Nos. L.A.T.A. 3/74, 4/74 and 5/74 are disposed of by this judgment.
2. The incident, out of which these three appeals arise, relates to a common occurrence. Although the Inquiry Officer held separate inquiries against the accused worker, but disposed them of by one inquiry report. The learned Labour Court has also consolidated the three applications before him, which has arisen out of the three inquiries against the accused-workers, and he even disposed of the three cases by a single decision. lt is alleged that it was complained by the workers that Mr. M.
S. Naseem, the Supply and Purchasing Manager of the Khyber Tobacco Co. Ltd., Mardan, had supplied poor and rotten quality of dual to the Factory Canteen and that he had not provided transport facilities to a sick worker on 7-6-1972. The complaints aroused the workers to protest against Mr. M. S. Naseem and in doing so a crowd of workers including Abdul Jalil, Muhammad Aslam and Sherdad dragged Mr. M. S. Naseem out of his office, assaulted him, belaboured and manhandled him, during working hours on 8th of June 1972, at about 08-30 hours. It will not be out of place to mention here that in June 1972 there was only one Trade Union called Khyber Tobacco Co. Labour Union, Mardan. This Trade Union was also the collective bargaining agent. Abdul Jalil was the General Secretary, Muhammad Aslam was a Chairman, and Sherdad was the Assistant Organising Secretary of the Union. On the allegations that the three officers of the Union had assaulted, belaboured and manhandled Mr. M. S. Naseem on 8th June 1972, at about 08-30 a.m. each one of them viz. Abdul Jalil, Muhammad Aslam and Sherdad, was served with a show-cause notice dated 9th of June 1972. Each of them was also served with a charge-sheet respectively on 14-6-72, 15- 6-72 and 16-6-72. The inquiry against the three accused workers was entrusted to Col. (Retd.) Mian Fazal Wahid, Personnel Manager of the Company. The Inquiry Officer held inquiry against Abdul Jalil in Case No. 47/72, against Muhammad Aslam in Case No. 48/72 and against Sherdad in Case No. 46/72. Management witnesses were examined by the Inquiry Officer. In all seven management witnesses were examined. Out of these seven witnesses Mr. M. S. Nasetm (the victim), Muhammad Akram, Department Supervisor, S. M. Salim, Production Officer, Sultan Ahmed, Production Officer, although were common witnesses in all the three cases, were examined separately in each case. Mr. Fida Malik, Accounts Officer and Muhammad Aslam Khan, Assistant Factory Manager were examined in the cases of Abdul Jalil and Sherdad. Subedar Hakeem Khan, Department Supervisor Watch and Ward and Zainul Abidin Darwan were examined in the case of Abdul Jalil only. Each of the accused worker was examined as his own witness in the case, ln the case of Muhammad Aslam, D. W. 1, Ghani-ur-Rehman, D. W. 2, Mohayuddin, D. W. 3, Sardar Hussain and D. W. 4 Afzal Khan, were examined. Abdul Jalil produced D. W. 1 Khial Muhammad, D. W. 2, Hayat Muhammad D. W. 3 Fazal Ghani, and D. W. 4 Syed Mahmood. Sherdad accused worker did not produce any defence evidence. The Inquiry Officer submitted his "Appraisal of Evidence" (Inquiry Report) to the General Manager on 23-6-72. The General Manager served each of the accused- workers with a show-cause notice dated 24-6-72. It appears that the accused workers submitted their replies to the show- cause notice but the replies were rejected by the General Manager on 26-6-72. The General Manager by his order dated 26-6-72 gave a single decision in all the three cases and ordered that Abdul Jalil, Muhammad Aslam and Sherdad should stand dismissed from the Company's service with immediate effect. This decision was conveyed to the three accused workers individually by office order dated June 26, 1972. 3, The Khyber Tobacco Co. Labour Union, Mardan, through Ajmeer Khan its President, in the capacity of collective bargaining agent for the establishment, filed three applications under section 25-A(4) of the Industrial Relations Ordinance, 1969 amended up-to-date, against the order of dismissal dated 26-6-72. The Khyber Tobacco Company, Mardan, through its General Manager, was made respondent. File No. 46/72 relates to the dismissal case of Sherdad file No. 47/72 relates to the dismissal of Abdul Jalil while file No. 48/72 relates to the dismissal of Muhammad Aslam. All the three applications were instituted in the Labour Court, N.-W. F. P. Peshawar on 15-7-72. The Labour Court consolidated the proceedings of the three applicants and witnesses were examined in Case No. 47/72 of Abdul Jalil. The respondents filed their written statement. Both the parties had also filed relevant documents. Abdul Jalil, Sherdad and Muhammad Aslam, accused-workers, were examined as their own witnesses in their respective cases. Col. (Retd.) Mian Fazal Wahid and Muhammad Aslam Khan, Factory Manager, were examined on behalf of the respondent in Case No. 47/72. The learned Labour Court decided the three cases by a single judgment. He accepted the applications on the solitary ground that the respondents had failed to supply copy of the inquiry report to each of the accused-worker, which resulted in grave irregularity and illegality, and as such the order of dismissal of the respective accused worker dated 26-6-72 could not be sustained. He, therefore, by his decision dated 2-1-74, accepted the three petitions with costs, ordered the re-instatement of Abdul Jalil, Muhammad Aslam and Sherdad and set aside the order of their dismissal dated 26-6-72. He further ordered that the respondents should pay them all the benefits of service with effect from 26-6-72. Pleader's fee was fixed at Rs. 25.
4. The Khyber Tobacco Co. Ltd. Mardan, through its General Manager* has come up on three separate appeals under section 37(3) of the Industrial Relations Ordinance, 1969. These appeals are L.A. T.A. Nos. 3/74* 4/74 and 5/74, arising out of Labour .
5. Mr. Peer Bakhsh Khan, counsel for the appellant, and Qazi Muhammad Anwar, counsel for the respondents were heard at length. In order to enable me to pronounce judgment and for other substantial reasons, I recorded the statement of Col. (Retd.) Mian Fazal Wahid, Personnel Manager, Khyber Tobacco Company Ltd., Mardan, as Tribunal witness with previous notice to the witness, to the parties and their counsel. The following points have arisen for determination and adjudication :
(1) Whether the three petitions before the Labour Court are not maintainable for non-observance of the mandatory provisions of section 25-A (1) (2) and (3) of the Industrial Relations Ordinance (hereinafter to be referred to as I. R. O.)? (2) Whether the three appeals from the decision of the Labour Court are competent under section 37 (3) of the I. R. O. ? (3) Whether the inquiry is vitiable for non-observance of principles of natural justice ? (4) Whether the inquiry report is fair in equity and justice based on good faith, and hence sustainable in law and factual merits of the case? 6.
With respect to the non-maintainability of the applications under section 25-A, Mr. Peer Bakhsh Khan, learned counsel for the appellant, urged that the petitions have been instituted on behalf of the Trade Union and bargaining agent and not by the accused worker himself and, therefore, each of the petitions is not maintainable. Section 25*A was introduced in the I. R. O. by Ordinance IX of 1972, gazetted on 13th of April 1972. Reading section 25-A (1) and (4) together a worker can bring his grievance in respect of any right guaranteed or secured to him by or under any law........................ with previous notice in writing to the employer either himself or through his Trade Union within three months of the day on which the cause of such grievance arises and in case of failure to communicate the decision by the employer the worker may take the matter to the Labour Court.
Seo- tion 22 (l2) provides that "the collective bargaining agent in relation to an establishment or group of establishments shall be entitled to : (d) ....... (b) represent all or any of the workmen in any proceedings, (c) ......................... (d) ........................................................... Keeping in view these provisions of the I.
R. O., I am of the view that the bargaining agent could institute the application and represent the accused- worker before the Labour Court in the proceedings before it.
7. After the addition of section 25-A in the I. R. O. by Ordinance IX of 1972, sections 37 and 38 were also amended as under : -- "I6. In section 37,-- (a) In subsection (3), after the brackets and figure (1) 'the words* brackets, figures and letter or a decision of the Labour Court under subsection (5) of section 25-A* shall be inserted : and (b) in subsection (4), after the word 'awards* the words *and decision' shall be inserted.
17. In section 38, in subsection (3), after the word 'award*, the words 'or decision' shall be inserted. Later on by Act XXIX of 1973, called Industrial Relations (Amendment) Act, 1973, gazetted on 9th February 1973, by virtue of its sections 27 and 28, the following amendments were brought in sections 37 and 38 of the I. R. O. "Amendment of section 37, Ordinance XXIlI of 1969.--In the said Ordinance,-- (a) in section 37, in subsection (3), the words, brackets, figures and letter 'or a decision of the Labour Court under subsection (4) of section 25-A* shall be omitted ; and (b) in subsection (4), the words *and decisions' shall be omitted. "28. Amendment of section 38, Ordinance XXXIII of 1969.--In the said Ordinance, section 38, in subsection (3), the words *or decision' shall be omitted.*' As said above, the applications before the Labour Court were instituted on 15-7-72, when a decision of a Labour Court was appealable to the Appellate Tribunal under section 37 (3) and the Tribunal had the jurisdiction to hear such appeals under section 38 (3) of the I. R. O. The Labour Court announced its decision on 2-1-74 when by virtue of Amendment Act XXtX of 1973 the jurisdiction of the Appellate Tribunal to hear appeals, from the decisions of the Labour Court was taken away. It is settled' law that an appeal is a continuation of a cause or a Us. The institution of theU cause or Us carries with it the implication of all rights of appeals which! were enforced or preserved to the parties till the rest of the career of the suit.) In Juma Khan v. Mst. Gul Ferosha (1), it was held : "In the Oxford English Dictionary, Vol. 1, "appeal" has been indicated to mean, 'to remove a case formally from an inferior to a higher Court'. The right of appeal is a matter of procedure. It is a substantive right created by a statute. An appeal is said to be a continuation of suit or is included within the word 'suit*. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the Us commences and although it may be actually exercised when the adverse judgment is pronounced. A similar question arose in Gammon (Pakistan) Ltd.t Rawalpindi v. Muzaffar Khan and 7 others (2). The leamed Labour Appellate Tribunal, Punjab observed that "a right of appeal is a substantive right and accrues when the Us commences, unless it is taken away expressly or by a necessary intendment by the subsequent enactment," and since at the time when the petitions were originally filed before the Labour Court there was a right of appeal B to the Labour Appellate Tribunal, an appeal against the decision of the Labour Court would still lie to this Tribunal even after the amendmaaf by the Amending Act of 1973. The three appeals 'are, therefore, competent.
8. The principles of natural justice have been crystallised into four principles of justice, namely, (1) opportunity for both the contesting parties tO( be heard, (2) hearing before an impartial Tribunal so that no man can be a judge of his own cause,
(3) decisions made in good faith, and (4) an orderly course of procedure. Apart from this no other principle of natural justice is kaown to the modern jurisprudence. (See Saxby & Farmer (lndia)
(Private) Ltd. v. Third Industrial Tribunal and others (1). Pakistan Law defines "Judicial Proceedings" nowhere except in section 4 (m) of the Criminal Procedure Code. The definition runs : "4(1) (m).
Judicial proceeding.--'Judicial Proceeding* includes any proceeding in the course of which evidence is or may be legally taken on oath :*' "Evidence" according to section 3 of the Evidence Act, means and includes : "(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence ; (2) all documents produced for the inspection of the Court ; such documents are called documentary evidence." Proceedings before Domestic Tribunal are termed as guari-judicial proceedings. "Judicial", "^wasi-judicial" and "administrative** terms have been explained in Messrs Faridsons Ltd. Karachi and another v. Govemment of Pakistan and another (2), at pages 557 and 558, thus : "The criteria to ascertain whether a particular act is a judicial act or an administrative one has been laid down with clarity in Rex v. Electricity Commissioner (1924) 1 K B. 171, Rex v. London County Council Ex parte Entertainments Protection Association Ltd. (1931)2 K B 215 and authoritatively restated by this Court in the case of Tariq Transport Company v. Sargodha-Bhera Bus Service and others (1958) 2 P SCR 71. In the above case, this Court observed at page 95 :-- "A tribunal acts judicially in the full sense of the term if-- (1) it has to determine a dispute-- (2) the dispute relates to a right or liability which, whatever its immediate aspects, is ultimately referable to some right or liability, recognised by the Constitution or Statute or by custom or equity which by the domestic law is declared to be the rule of decision ; (3) since every right or liability depends upon facts, the Tribunal is under an obligation to discover relevant facts ; (4) the ascertainment of the facts in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent ; and (5) after an investigation of the facts and hearing legal arguments the Tribunal renders a judgment which so far as the Tribunal is concerned terminates the dispute.*' ln the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a Tribunal the approach in do termining the relevant facts is, therefore, often subjective and not objective, there being generally no Us before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. The word "quasi" as prefixed to the word 'judicial* may either indicate that the Tribunal is not acting purely administratively or that it is acting in a manner in which a judicial Tribunal is expected to act.
Dealing with the same subject Halsbury in his Laws of England, Vol. II, 3rd Edition at pages 56 and 57 says:-- "Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision.
Thus if in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, if at some stage of the proceedings leading up to the decision there was something in the nature of a Us before it, then in the course of such consideration and at that stage the body would be under a duty to act judicially. If, on the other hand, an administrative body in arriving at its decision had before it at no stage any form of Hs and throughout has to con-. sider the question from the point of view of policy and expediency it cannot be said that it is under a duty at any time to act judicially. The principle of natural justice applies to judicial as well as administra-j-. tive bodies. In Chief Commissioner, Karachi and another v. Mrs. Dina Sohral\ Katrak (1), it has been held : "The rule of justice embodied in the maxim : audi alteram partem i 'No man shall be condemned unheard* is not confined to proceedings before Courts but extend to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which art in the nature of a judicial proceeding though administrative in form. The scope and content of natural justice has been explained in Bharat Tegart v. Mr. N. Hossain, Special Magistrate, Dinajpur and others (2), in the following words : "Natural justice"--Scope and content The scope of the words 'failure of natural justice* is apt to be conceived. What exactly is natural justice has of course not been defined in any case. But it is certainly not justice jn the abstract or moral sense nor even justice according to natural law. It$ content has not yet been correctly determined nor is it capable of such precise definition. To constitute a denial of natural justice, there must be a violation of some fundamental principle of law or procedure of such importance that it would shock the conscience of the Court and it would consider it to be a case where the substance of a fair trial had been denied. The instances of such denial of natural justice appear to be in cases where a person sought to be condemned or to be adversely affected is not given any opportunity of being heard in his defence or where the Judge himself is interested in the matter by reason of some pecuniary or other interest or where there has been flagrant disregard of procedure.'* ln the case of the University of Dacca and another v. Zakir Ahmed (1), it was held : "In all proceedings by whomsoever held, whether judicial or adminis- trative, the principles of natural justice have to be observed if the proceeding might result in consequences affecting 'the person or property or other right of the parties concerned.* This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness." It was further held : 'The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.* Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the 'elementary and essential principles of fairness* as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegation against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and 'to correct or controvert any relevant statement brought forward to his prejudice. "In other words, 'in order to act justly and to reach just ends by just means* the Courts insist that the person or authority should have adopted the above 'elementary and essential principles' unless the same had been expressly excluded by the enactment empowering him to so act. In all the recognised elementary disciplinary rules applicable in departmental inquiries, the first requirement at the commencement of the inquiries it that in order to make aware the person affected a preliminary inquiry should be conducted through an inquiry officer and then a charge be framed against the accused officer. In the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as (Standing Orders)
Standing Order No. 15 deals with punishments. Stand ing Order 15 (2), (3) and (4) runs as follows : "15 (2). A workman found guilty of misconduct shall be liable to any of the following punishments :
(1) PLD 1965 SC 90 (). '.......................... (///) .... ......................................................... (/v) dismissal without payment of any compensation in lieu of notice. (3) The following acts and omissions shall be treated as misconduct:-- (a) . (b) . . . (c) . (d) . . . (e) . (0 (g) (h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline ; (4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct 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, when circumstances appear to warrant it, the employer may institute independent inquiries before dealing with charges against a workman.'* Standing Order 15 (4) was amended by Amending Ordinance of 1972 on 15-11-72. For the word "may'* in between the words "the employer'* and "institute independent inquiries'*, the word "shall'' was substituted, and a Proviso was also added to it by the same Ordinance. Standing Order 15 (4) now reads : "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explaia 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 : Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.** "Independent Inquiries'' provided in the amending para (4) is still not exhaustive so as to include some other essential steps in the inquiries on the grounds of principles of natural justice. However under the procedure of the original Standing Order 15 (4) it was apparently not obligatory on the employer to institute independent inquiries before dealing with charges against a workman. The word "may" according to its natural meaning is a permissive or enabling word and imports a discretion. But it is not always so where a statute directs the doing of a thing for the sake of justice or the public good, the word "may" is the same as the word "shall" See Tafazzal Hussain v. Province of East Pakistan (1). In the original para. 4 of Standiog Order 15 the word "may" in my view directed the holding of independent inquiries before the charge for the sake of justice to the workman charged and hence the word "may" under reference shall read as "shall" so as to make it mandatory for the employer to institute independent inquiries before dealing with charges against a workman. The Legislature also feeling the necessity in its wisdom substituted the word "may" by the word "shall" in the said para. 4 of the Ordinance. The Tribunal witness placed on file a document Exh. Tr. W. 1/1 dealing with "Disc plinary Procedure". This procedure lays down guidelines for disciplinary actions in the establishment. Reading paras. 1, 3 and Appendix *C mentioned in para. 3 together, I find that preliminary inquiry in writing by the Factory Manager is obligatory before a charge-sheet is served upon the accused worker. Appendix *C' requires a certificate of preliminary inquiry officer to the following effect : "I certify that a preliminary enquiry has been carried out by me and I am satisfied that a prima facie case has been established to proceed with the charge. Will you please carry out an investigation into this misconduct and report your findings to the General Manager?" Alongwith the preliminary inquiry report the Factory Managar has to enclose the statements of the management witnesses examined during the preliminary inquiry. The Factory Manager or the Assistant Factory Manager who holds preliminary inquiry, if satisfied that a prima facie case exists against the worker, then and then only should prepare the charge-sheet (Appendix E), sign it and serve it on the employee. In the present case no preliminary inquiry in writing has been held by the Assistant Factory Manager Mr. Muhammad Aslam Khan. The Tribunal witness has deposed that after reading paras. 1, 3 and Appendix "C" mentioned in para. 3, he should state that the preliminary inquiry in the present case must have been in writing before a show-cause notice and a charge-sheet was served on each of the accused worker. The show cause notice and charge-sheet served upon each of the accused worker show that he has been called upon to explain his misconduct as contemplated under Standing Order 15 (3) (h). As earlier reproduced, Standing Order 15 (2) lays that a workman found guilty of misconduct shall be liable to any of the punishments given thereunder while Standing Order 15 (3) enumerates acts and omissions which shall be treated as misconduct. Thus it is amply clear that in the show-cause notice or the charge-sheet each of the accused worker has not been given to understand that a charge of misconduct as contemplated by Standing Order 15 (2) (iv) has been established against each of them. Para. 18 (6) of the Disciplinary Procedure lays : "18 (b).
Wrongly formulated charge-sheets can occasion a miscarriage of justice and lead to administrative difficulties. Therefore, it is imperative that disciplinary cases should be correctly initiated and the charges properly scrutinised before instituting the proceeding and signing the charge-sheet. Incharge Departments must ensure that the correct reference of the Standing Orders is quoted and that the charge is accordingly composed. Even an omission of one word can constitute a legal flaw in the proceedings." Thus the charge-sheet served on each of the accused worker has been wrongly formulated and the error or omission so committed constitutes a legal flaw in the proceedings of inquiry. (1) PLD 1945 Dacca 4$ Standing Order 15 (4) lays that "no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him.*' The Tribunal witness has deposed that at the conclusion of the three inquiries he submitted one inquiry report common to all the three cases, and that each of the accused workers was not supplied with a copy of any of the statements of the management witnesses or workers witnesses and H n6t they were supplied with a copy of the inquiry report. He has further stated that he knows that in case the accused worker is expected to be dismissed from service, copies of all the proceedings including the inquiry report must be supplied to the accused worker. The General Manager serVedi on each of the accused worker show-cause notice dated 24-6-72, inform-l ing him that he had been judged guilty of riotous and disorderly behaviour] during working hours at the establishment as contemplated by Standing!/ Order 15 (3) (h) and he should show cause by a written reply why he shoulc not be dismissed from service. In the written reply dated 26-6-72 each of the accused worker has complained that he has not been provided with a copy 61 the report of inquiry committee as well as the evidence before it. The* General Manager in his reply to each of the accused worker on 26-6-72 regarding the complaint of each of the accused worker, has said that he has taken full part in deliberations of the dbmestic inquiry and therefore no copy of the proceedings has been supplied to him, and that he has been adjudged guilty on the basis of evidence on record. The General Manager by a common order, dated 26th June 1972, dismissed all the three accused workers from the Company's service with immediate effect on the allegation that the charge of assault of the person of Mr. M. S. Naseem under Standing Order 15 (3) (h) has been conclusively proved against each of them. Thus the mandatory provision of Standing Order 15 (4), in that each of the accused worker before his dismissal has not been given any opportunity to explain the circumstances against him, has been violated. It is well settled law that the domestic inquiries procedure is in the nature of ?uorf-judicial procedure and as such it is necessary that a workman against whom an inquiry J has been held by his employer should in all fairness be supplied with the copies of statements of all witnesses whose evidence is recorded during the course of inquiry, and that the accused worker, when served with a second show-cause notice, must be furnished with a copy of inquiry officer's report on the principles of natural justice, to enable the accused worker to explain all the circumstances alleged against him in the report. See : Associated Electrical Industries {Pakistan) Ltd., Karachi v. Employees' Union (1), Road Transport Corporation, Lahore v. Muhammad Aslam and 18 others (2) and The District Manager, Government Transport Service, Hyderabad v. Muhammad Ibtahim and another (3). The learned counsel for the appellant referred to various decisions in opposition to the proposition that it is necessary for the inquiry officer to supply the inquiry report to an accused worker before the second show-cause notice. After going through these decisions, I find that they are of no assistance and are distinguishable from the facts and circumstances of the present cases and hence not applicable.
(1) 1972 PLC 464 (2) 1970 PLC 576 (3) 1974 PLC Note 1 at 0. 1 The various fundamental illegalities of procedure committed in the inquiry as discussed above, are enough to vitiate the whole inquiry against each of the accused worker.
9. We have now to scrutinise the evidence of the management witnesses in support of the charge against each of the accused worker in order to find whether each of the accused worker was given a fair and unprejudicial bona fide trial, that the report of the inquiry officer is not perverse and that the charge against each of the accused has been proved enough. I am conscious of the limitations that the Evidence Act is not applicable to domestic inquiries, and that this Tribunal do not function as a Court of appeal against the decision of the employer. However, as a Court of equity this Tribunal can scrutinise the case whether there is evidence that the worker has been penalised in bad faith, say victimisation, and that fair inquiry has not been given and proper procedure has not been followed. If I am to be convinced that the domestic inquiry has been conducted in a mala fide manner, for want of good faith and the accused workers have not received a fair inquiry, in that case I must go into the merits of the case to ascertain unsustainability of the impugaed order. In the Administrative Officer, Chittarananjan Cotton Mills Ltd., Dacca v. The Chlttaranjan Cotton Mills Staff Union, Dacca (1), it has been observed at page 650 :-- "It has, however, been rightly urged that the Labour Court clearly erred in observing that since the enquiry was not conducted in a fair and impartial manner, it was not necessary for the Court to go into the merits of the case. It is rather on such occasions the Court should go into the merits of the case. The view expressed above finds support in a decision of the Supreme Court of India in the case of Messrs Kharda & Co. Ltd. v. The Workmen (AIR 1955 SC 719). 1a that case the learned Judges observed : 'One of the tests which the industrial Tribunal is entitled to apply in dealing with Industrial disputes of this character is whether the conclusion of the Enquiry Officer was perverse or whether there was any basic error in the approach adopted by him.'
Gajendragadkar, J., delivering the judgment of the Court proceeds to say, 'As we have already observed, we must insist on a proper inquiry being held, and that means that nothing should happen in the enquiry either when it is held or after it is concluded and before the order of dismissal is passed which would expose the enquiry to the criticism that it was undertaken as an empty formality. Therefore, we are satisfied that the Industrial Disputes Tribunal was right in not attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it.* *' In another case The District Manager, Government Transport Service, Hyderabad v. Muhammad Shafi and another (2), it has been held : "The decision of the Enquiry Officer, however, can be set aside if the Industrial Tribunal finds that it is perverse. A decision can be termed perverse if it is such that no rational or reasonable person could reach that conclusion or it is impelled by arbitrariness or it is contradictory. If a decision can be interpreted to hold a person guilty as well as innocent, it will amount to be perverse." (1) 1969 PLC 645 (2) 1974 PLC Note 36 at p. 21 On perusal of the statements of the management and workers witnesses recorded in the three cases, I find that none of the witnesses on either side had given evidence on oath. The Tribunal witness admits that it is a matter of general law that every witness before he gives a statement should take oath or make solemn affirmation. He states that in the present three cases he had asked all the witnesses to make statements on solemn affirmation but in none of the statements recorded either on behalf of the management or on behalf of the accused workers he has stated in writing that he had administered oath or had asked the witnesses to make a statement on solemn affirmation. As earlier referred to, evidence means and includes all statements if the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence. Section 4 (a) of the Oaths Act lays the following : "4. The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law:-- (a) All Courts and persons having by law or consent of parties authority to receive evidence } (b) " Section 5 (a) of the Oaths Act reads : ''Oaths or affirmations shall be made by the following persons:-- (a) All witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having by law er consent of parties authority to examine such persons or to receive evidence ; (b) ............................................ Section 14 of the Oaths Act reads : "14. Every person giving evidence on any subject before any Court or person hereby authorized to administer oaths and affirmations shall be bound to state the truth on such subject.** As earlier stated, none of the witnesses examined on either side, has been administered oath or affirmation nor they have taken oath or made solemn affirmation. This, to my mind is not a mere omission, as contemplated by r section 13 of the Oaths Act, but is a flagrant violation of sections 4, 5 and 14 of the Oaths Act and invalidate the proceedings and render the evidence inadmissible. Let us now scrutinise the evidence of the ocular witnesses produced by the management in support of the incident. Mr. M. S. Naseem, the aggrieved officer, has been examined as M. W. 1 in all the three cases His evidence in short is that on 8th June 1972 at about 8- 30 a. m., about 40 or 50 workers headed by Abdul Jalil came up to him upstairs and surrounded him. raising various slogans. In the meantime Muhammad Aslam Khan, Assistant Factory Manager, made efforts to appease the workers, but he failed. Then the workers attacked him from front and back and beat him with fists and slaps, as a result of which his bushirt was torn. These workers included Muhammad Aslam, Sherdad, and Abdul Jalil. It is thus not established from the evidence of Mr. M. S. Naseem in all the three cases as to what specific part was ascribed to each of the three accused workers in giving fists and slaps to him. Mr. Muhammad Aslam Khan, Assistant Factory Manager was examined as M. W. 2 in the case of Abdul Jalil and M. W. 4 in the case of Muhammad Aslam. He deposed in the case of Abdul Jalil that about 20 or 30 workers were in ihe verandah on the first floor and about 90 or I0O were standing in the staircase, and some were standing in the reception hall. On the advice of Mr. Abdul Jalil some of the workers got down. ln the meanwhile Captain Muhammad Jehangir Khan, Factory Medical Officer, Muhammad Aslam (accused worker), Sherdad (accused worker) and some other workers remained in the first floor. The General Manager came inside the Factory. When General Manager came inside the Factory the witness went to him and appraised him of the incident. The witness later saw Mr. M. S. Naseem m his office with his shirt torn. The witness came to know that some of the leaders of the Union had dragged out Mr. M. S. Naseem from his office to the verandah and beaten him. ln this statement the witness has not seen by himself any of the workers beating Mr. M. S. Naseem. To a question of Mr. Abdul Jalil, he stated that Mr. M. S. Naseem was beaten after the witness went inside the office of the General Manager and therefore, could not see the beating. This witness has seen the uprising of the workers including the three accused workers. The witness being Assistant Factory Manager had also made oral inquiries into the case before serving show-cause notice and framing charge against each of the accused worker. From these facts and circumstances, it can be presumed that the witness served the show-cause notice and framed the charge with bad faith. This witness gave more or less similar statement in the case of Sherdad. This witness was cross-examined by Mr. M. S. Naseem. Mr. M. S. Naseem bad questioned the witness whether he could name any worker whom he saw standing when the witness saw the bushirt of Mr. M. S. Naseem torn, the witness replied in the affirmative and added that Abdul Jalil Junior Clerk, Sherdad accused worker, Muhammad Aslam accused worker, Sardar Hussain worker, Akbar Shah worker, Sher Bahadur Sectionman, C. M.
D. and Dr. Muhammad Jehangir, Medical Officer, were present around him (M. S. Naseem). Mr. Muhammad Salim M. W. 4 in the case of Muhammad Aslam stated that he after the first incident went into his office and so did Mr. M. S. Naseem. After a shortwhile the witness heard the upcries of the workers and he came out. He saw the bushirt of Mr. M. S. Naseem torn and from his appearance the witness could presume that he was beaten. Out of the persons who had surrounded Mr. M. S. Naseem, Abdul Jalil accused worker, Sherdad accused worker, Mr. Karim Itbari worker, Sher Bahadur, Jamroze Khan, Akbar Shah worker, Mr. Muhammad Aslam, accused worker, Sardar Hussain worker, and Dr. Muhammad Jehangir, Medical Officer were present. Subedar Abdul Hakim was examined aa M. W.3 in the case of Abdul Jalil. The witness while coming towards the offices iqside the gate heard that Dr. Muhammad Jehangir, Abdul Jalil accused worker, Muhammad Aslam accused worker, Sherdad accused worker Akbar Shah worker, Sher Hassan worker, Jamroze Khan worker, Amir Sher worker and others had all beaten M. S. Naseem und had torn his bushirt.
This witness was not examined in the other two cases. Mr. Sultan Ahmed Khan was examined as M.
W. 4 ln the case of Abdul Jalil. This witness saw huge crowd in the verandah in front of the office of Nasrullah Khan. The crowd included Mr. Fida Malik and Mr. M. S. Naieem (aggrieved officer). The witness got the impression that Mr. M. S. Naseem was attacked. This witness has not named any of the accused worker or any other worker in his examination-in-chief, but when cross examined by M. S. Naseem, he stated that his impression was that the crowd included Sherdad. accused-worker, and Akbar Shah worker. To a second question put by M. S. Naseem, the witness stated that in the uprising he saw Mr. Abdul Jalil accused worker. Captain Muhammad Jehangir and Muhammad Aslam accused worker. When cross examined by Abdul Jalil accused-worker, the witness stated that he did not see Abdul Jalil amongst the workers who were beating M. S. Naseem, and added that he had seen nobody beating M. S. Naseem because he was standing away. Sultan Ahmed was examined as M. W. 5 in the case of Muhammad Aslam accused worker. He stated that he went to the office of Nasrullah Khan where he heard the voice of Abdul Jalil accused worker saying something to the people outside, who had gathered in great numbers. At that time M. S. Naseem was not present. After a short while, while coming down the stairs, he heard outcry and saw Mr. Fida Malik also. The crowd attempted to go inside and the witness got the impression that M. S. Naseem was attacked. In the meantime a person took Mr. M. S. Naseem inside his office. The witness could not say who were amongst the crowd and what they were doing. Later on he saw Mr. M. S. Naseem sitting in chair and his bushirt was torn. This witness was cross-examined by Mr M. S. Naseem as to whether the witness had seen Muhammad Aslam accused worker, Abdul Jalil accused worker, Sherdad accused worker, and Dr. Muhammad Jehangir in the crowd. The witness replied that he was taken by somebody in the office of Mr. Naseem, and, therefore, he could not see the crowd, and that when he came out after the incident was over, he saw many labour leaders there. Mr. Sultan Ahmed was examined as M. W. 6 in the case of Sherdad accused worker. He virtually gave similar statement with the other two statements. He was cross-examined by M S. Naseem as to whether when the witness was going towards the office of Mr. Zaidi the witness had seen and could name the workers present in the verandah. The witness replied that he had seen Sherdad accused worker, Akbar Shah, Abdul Jalil accused worker, Dr. Muhammad Jehangir and Muhammad Aslam accused worker in the verandah. Mr. Muhammad Akram Department Supervisor, Supply Department, was examined as M. W.
5. He stated that on 8th June 1972 at about 8-30 a.m. he was in his office. He heard uproar on the first floor in the verandah. He saw about 200 workers. Some of whom were in the verandah, some in the stairs and others were below the verandah. They were provoked. The witness saw Abdul Jalil accused worker talking with M. S. Naseem. M. S. Naseem was standing quiet. At that time Mr. Zaidi, Secretary, Khyber Tobacco Co., Mr. Mahmood, Assistant Accountant, Mr. Fida Muhammad Accounts Officer, and several other workers uere also standing. In the meantime some of the workers surrounded Mr. Naseem and began beating him, but he could not say who were they. The witness and Fida Malik released M. S. Naseem from the workers. The witness was cross-examined by Mr. M. S. Naseem as well as Abdul Jalil. To the question of Abdul Jalil, the witness answered that he had seen him (Abdul Jalil) beating M. S. Naseem. By a Court question, the witness was asked whether in the inquiry against Muhammad Aslam accused worker, the witness had stated t bat he (Muhammad Aslam) had slapped Mr. M, S. Naseem, The witness replied in the affirmative, adding that Muhammad Aslam (accused worker) had slapped M. S. Naseem which had also slapped his (witness's) hand Muhammad Akram was not examined as a witness against Sherdad. Muhammad Akram was examined as M. W. 3 in the case against Muhammad Aslam. He stated that on 8-6-72 at about 8-30 a. m. he saw about 200 workers standing in the verandah, in the stairs and down the stairs. He saw Muhammad Aslam accused worker calling M. S. Naseem to come outside. M. S. Naseem came out and was standing in the verandah. The witness, Mr. Zaidi, Mahmood and Fida Malik were also standing aside. In the meantime some workers surrounded M. S. Naseem and began beating him, but the witness could not observe as to who hit M. S. Naseem The witness and Fida Malik released M. S. Naseem from the workers. The witness added that at the time when the workers were beating M. S. Naseem, he saw Muhammad Aslam accused worker, slapping M. S. Naseem. The slaps also hit the hand of the witness. This witness was also cross-examined by M. S. Naseem and Muhammad Aslam accused.
Muhammad Akram was examined as M. W. 4 in the case against . Sherdad. The witness gave similar statement in the examination-in-chief like his statement in the other two cases. In this case also he stated that when the workers were beating Mr. M. S. Naseem, he had seen many hands beating Naseem and he had seen Muhammad Aslam accused-worker giving slaps to Naseem from behind. The witness was cross-examined by Mr. M. S. Naseem, and was asked whether he had seen Sherdad, Abdul Jalil and Muhammad Aslam accused workers beside Akbar Shah. Sardar Hussain and Ajmir Khan when the workers had surrounded him (Naseem) and were beating him.
The witness replied that he had seen Abdul Jalil, Muhammad Aslam, Akbar Shah and Ajmir and had not seen Sherdad and Sardar Hussain, although he knew Sherdad since long. Syed Muhammad Salim, Production Officer, was examined as M. W. 6 in the case of Abdul Jalil. He stated that on 8th June 1972 at about 8-30 a. m. he saw some workers going upstairs, some workers were standing in the verandah, in front of Supply Office. The workers were making great noise. At that time Mr. Abdul Jalil accused worker was standing with Mr. M. S. Naseem, and talking to him. After sometime the witness went to the office of the Secretary. After a short while the witness heard uproar. He came out and saw Mr. M. S. Naseem with his bushirt torn. Amongst the workers, who had surrounded M. S. Naseem, Abdul Jalil, Sherdad and Muhammad Aslam accused workers, besides Karim Itbari, Akbar Shah, Sardar Hussain, Jamroze Khan, Sher Bahadur, Dr. Muhammad Jehargir and many other workers, were present. S. Muhammad Salim was also examined as M. W. 4 in the case of Muhammad Aslam. He gave virtually the same statement as in the case of Abdul Jalil. This witness was not examined in the case of Sherdad. Mr. Fida Malik, Accounts Officer, was examined as M. W. 2 in case of Sherdad. He stated that on 8th of June 1972, at about 8-30 he was in his office.
He heard cries and came out. He saw Col. M. F. Wahid Personnel Manager in the centre of the staircase, talking with the workers, In the meanwhile the workers who were about 50 came up to the verandah. The workers were raising slogans against M. S. Naseem. The witness saw many workers having collected. Muhammad Aslam, Assistant Factory Manager, and M. S Naseem were also standing there. Muhammad Aslam was talking with the workers and M. S. Naseem was standing by his side. At the asking of the witness, the workers began going down the stairs alongwith Mr. Muhammad Aslam, Assistant Factory Manager. The1 witness heard an uproar while he was in a different room. The witness saw . many workers dragging Naseem towards the stairs and beating him. The witness caught hold of Naseem by his hand while the workers were dragging him down the stairs. In the meantime Muhammad Akram, Department Supervisor came and helped the witness in releasing Naseem. In this "Markutaee" the bushirt of Naseem was torn. Dr. Muhammad Jehangir was standing beside the witness and others succeeded in releasing Naseem from the workers, and took him to the office of Mr. Zdidi. The witness was not cross-examined by Sherdad accused, but was examined by Mr. M. S. Naseem. To the question of M. S. Naseem, the witness replied that the workers were numerous. Out of them he could not identify Sherdad nor he could recognise any other worker who were beating Naseem. Mr. Fida Malik was examined as M. W.
2 in the case of Muhammad Aslam. He gave statement similar to that in the case of Sherdad. The witness was cross-examined by Mr. M. S. Naseem, and questioned him whether he could name any of the workers from w hom the witness and others had released him. The witness replied that the workers were many in number and he could not identify any because he was busy in separating them. Fida Malik was not examined as a witness in the case of Abdul Jalil. Mr. Zainul Abideen was examined as M. W. in the case of Abdul Jalil, but his statement is not material to the incident. From the above discussion of the evidence of M. Ws., it cannot be established as to what specific part did the three accused-workers take in beating Mr. M. S. Naseem the aggrieved officer. Some of the witnesses even did not name some of the accused workers. Ttte inquiry officer appears to be personally interested in victimising the accused workers as he had seen the incident in the preliminary stages and also as is clear from the Court question, he put to M. W. Muhammad Akram about Muhammad Aslam accused worker in the case of Abdul Jalil. The inquiry officer allowed Mr. M. S. Naseem to cross-examine almost all the management witnesses obviously for filling the weaknesses in the prosecution case and it seems that the inquiries, though had arisen of one incident, were separated into three inquiries for the same purpose. The inquiry officer realising the weaknesses in the prosecution case has remarked in para. 6 of his report dated 23-6-72, as under : -- "6. Before discussing the prosecution evidence against the individual delinquent, I may state that in view of the tense situation in the Factory and fear of assault on the person of members of Management, some of the witnesses, whilst giving lucid details about the actual assault on the person of Mr. M. S. Na-eem, were reluctant or afraid of naming the assailants in clear terms.
However, in spite of this unfortunate shortcoming, there is enough material on record, as will be discussed hereinafter about the guilt of individual delinquent." 1 am thus of the view that on merits of evidence also the charge of misconduct against each of the accused workers/respondents has not been established. The inquiry report based on such evidence is perverse, mala fidet unfair and prejudicial to the interest of the accused workers. The dismissal order of each of the accused- workers based on such an inquiry report is liable to be vitiated against each of the accused workers. Consequently I find no merits in the three appeals, and while upholding the decision of the learned Labour Court, though for different reasons, dismiss tfce appeals with costs. I further order that each of the accused worker*/ respondents be re-instated and paid all the benefits of service with effect from the date of his dismissal viz. 26-6-1972. My order dated 28-1-1974, suspending the implementation of the order of the Labour Court is vacated. Pleader's fee in each case to be fixed at Rs. 200. 1974 PLC 300 [Labour Appellate Tribunal N.-W.F.P.] Present: Shah Zaman Babar, Chairman FAZAL KARIM versus ROAD TRANSPORT BOARD etc. Labour Appellate Tribunal , decided on 20th May 1974. (a) Road Transport Workers Ordinance (XXVIH of 1961)-- ----- Ss. 7(3) & 11-- Ordinance does not specifically provide forum for decision of cases of contravention of provisions of Ordinance--Offender, however, has to be penalised by a Magistrate and no other Court-- Appellant, held, could not move Labour Court for enforcement of rights guaranteed to him. [p.
302]/4 (b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)- ----- S. O. 18 [before amendment of 1972] read with Industrial Relations Ordinance (XXIlI of 1969), S. 34--Termination of service--Worker concerned has compulsorily to bring his grievance to notice of employer in writing within 15 days of accrual of cause of grievance--Omission of S. O. 18 by Ordinance XX of 1972 and introduction of S. 25-A in Ordinance XXIlI of 1969 by Ordinance XIX of 1972 providing for redress of individual grievances -- Cannot change merits of case-- Law applicable at time of institution of application has to prevail-- Appellant having failed to observe mandatory provisions of S. O. 18, held, lost his right to move Labour Court for quashment of termination of his service, [p. 302]5 & C Syed Suleman Shah v. Kohinoor Battery Manufacturers, Ltd. and another PLJ 1974 Tr. C. Lah. 143 and Messrs SaLemsons Ltd. v. The Second Sind Labour Court Karachi and another PLD 1973 Kar. 1 rel. (c)West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) - ----- S. O. 18 [before amendment by Ordinance XX of 1972 and Industrial Relations Ordinance (XXIlI of 1969), S. 34 [before amendment by Ordinance (IX of 1972), Ss. 2(), 2(xiii), 37 & 38--Award--Dispute between individual workman and his employer regarding his removal from service--Not an industrial dispute but an individual dispute-- Order passed by Labour Court in relation to individual grievance -- Not an award but a decision--Such decision not appealable. [pp. 302, 303] D & E Jaidi Din v. Orient March Company Limited, Shahdara, Lahore and 2 others PLD 1968 Lah. 269 and Gammon (.Pakistan) Ltd., Rawalpindi v. Muzaffar Khan and 7 others 1974 PLC 10 ref. Nisar Ahmad Khan for Appellant Muhammad Latif for Respondent.
Date of hearing: 20th May 1974. Judgment This is an appeal by Fazal Karim, Ex-Conductor, No. 409 of the Government Transport Service, Peshawar, whereby he challenged the order of the Labour Court dated 20-3-1974.
2. Brief facts of the case are that Mr. Inayatullah Jan, Chief Checking Inspector, G. T. S., Peshawar, checked Bus No. P R A 575 on 30-10-1970 and Bus No. P R A 4523 on 24- 11-1970. The appellant was acting as Conductor of the two buses on both the dates. In first instance, the Chief Inspector found that the appellant had not issued tickets to two passengers, while in the second instance the same Chief Inspector found that the appellant had not issued tickets to five passengers. Fazal Karim was duly charge- sheeted. Inquiries were conducted into the 'misconduct' of the appellant and by order dated 10/15th February 1971, the appellant was dismissed from service with effect from 4-2-1971.
3. On 17-5-1971 Fazal Karim appellant lodged application under section 34 of the Industrial Relations Ordinance before the Labour Court, Peshawar for quashment of the order of dismissal of the appellant from service and prayed for his re-instatement. The learned Labour Court recorded evidence of the parties and by his order dated 20-3-74 dismissed the application of the applicant under section 34 of the I. R. O.
4. Section 34 of the I. R. O., as it stood at the time of application of Fazal Karim, provided that a workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to him under any law. In the application before the Labour Court it has not been clarified as to under which law the rights guaranteed to the v orkman were to be enforced. On my reading of the application I was of the opinion that Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, will apply to the case of the appellant. Mr. Nisar Ahmad Khan, learned counsel for the appellant argued that the appellant was governed by the provisions of Road Transport Workers* Ordinance, 1961 and the West Pakistan Road Transport Workers Rules, 1962, framed under section 10 of the Ordinance of 1961. The learned counsei referred to section 7 of the Ordinance and the explanation added to subsection (2) of section 7, wherein the acts and omissions which shall be treated as misconduct have been enumerated from (a) to (J). The misconduct committed by the appellant would fall under sub-para, (b) of the Explanation to subsection (2) of section 7.
Subsection (3) of section 7 of the Ordinance provides:-- "If in any case instituted for the contravention of the provisions of subsection (l), the services of a worker are found to have been terminated without sufficient cause the amount payable as compensation under this section shall be in addition to any fine as payable under section 11." Section 11 provides for the penalties in case of contravention of the provisions of this Ordinance. Apparently the provisions of this Ordinance read as a whole would show that in case of contravention of the provisions of this Ordinance, the offender shall be liable to conviction and a sentence of fine. This Ordinance does not specifically provide the fornm or the Court. in which the cases of contravention of the provisions of the Ordinance are to be instituted and decided, but reading subsection (3) of section 7 and section 11 together, it is amply clear that in case a misconduct is committed by a worker A under the provisions of this Ordinance, he is to be penalised by a Magistrate and no other Court. Therefore, in my view, if the appellant is covered by the provisions of the Ordinance and the Rules framed thereunder, the appellant had no right to move the Labour Court for the enforcement of his right guaranteed to him.
5. As a result of the above discussion, 1 still hold the view that the appellant could move, in case of termination of his service, the Labour Court for the enforcement of his right under Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, read with section 34 of the I. R. O. In such a case accord-B ing to Standing Order 18(a), the workman concerned had to compulsorily bring his grievance to the notice of his employer in writing within 15 days of the occurrence of the cause of such grievance.
The appellant when examined as a witness has stated in cross-examination that he did not serve any notice of grievance on the respondent. Standing Order 18 has been omitted by Ordinance IX of 1972 and instead of this provision section 25-A has been introduced in the I. R. O. by Ordinance IX of 1972, notified on 13-4-72, which provides for the redress of individual grievance. Section 25-A, I. R. O. came into force during the pendency of the present application before the Labour Court. But this to my mind will not change the merits and appellant's locus standi to lodge the application, because the law which was applicable at the time of the institution of the application will prevail, and note section 25-A of I. R. O. The appellant by non-observing the mandatory provisions of giving 15 days' grievance notice in writing to his employer has consequently lost his right to move the Labour Court under section 34 of the I. R. O. for the enforcement of his right and quashment of his termination of service. Reliance is placed on:-- (1) Syed Suleman Shah v. Kohinoor Battery Manufacturers Ltd. and another PLJ 19/4 Tr. C. (Lah.) 143; and [1] Messrs Saleemsons Ltd. v. The Second Sind Labour Court, Karachi and another PLD 1973 Kar. 1.
6. The individual grievance of the appellant cannot be called an industrial dispute within the meaning of section 2(jcW), wherein industrial dispute has been defined in the words : "(i) 'industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person;" Section 2(ii) defines 'Award' as under:-- "(ii) 'Award' means the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and includes an interim award." From the definition of 'industrial dispute' and 'Award* it flows that a dispute between an individual workman and his employer regarding his discharge or dismissal is not an industrial dispute but an individual dispute.
As such an order passed by a Labour Court in relation to an individual grievance of a This order was challenged in appeal by the employer before Sind Labour Court No. IV, Karachi who remanded the case to the Court below for retrial and fresh evidence. The Junior Labour Court No. II, however, after hearing the parties for the second time by his order dated 28-5-1974 (Annexure T) directed the emloyer to re-employ the petitioner with full back wages on the date of resignation of Amanullah peon. This order was challenged in appeal before Sind Labour Court No. IV, Karachi who accepted the appeal and set aside the order of the Court below mainly on the ground that the grievance notice issued by the Advocate referred above was not a proper notice under section 25- A of I. R. O., 1969, hence it was not maintainable. He, however, did not give any finding on merits. PLD 1965 SC 208 (3) PLD 1956 SC (Pak.) 331 (5) PLD 1954 Lab. 800 (7) PLD 1973 Lah. workman against his employer is not an award.--See Jalal Din v. Orient Match Company Limited Shahdara, Lahore and 2 others (\) The order of the learned Labour Court is, therefore, a decision, lt is a settled law that "a right ofj appeal is a substantive right and accrues when the Us commences, unless it isjE taken away expressly or by necessary intendment."--See Gammon (Pakistan)] Ltd. Rawalpindi v.
Muzaffar Khan and 7 others (2). The decision of the learned Labour Court under subsection (4) of section 37, as it was then applicable, would be final and would not be appealable under subsection
(3) of section 38 of the I. R. O. before the Labour Appellate Tribunal. In conclusion of the above discussion, I hold that the application of the appellant before the Labour Court under section 34 of the I. R. O. as well as this appeal are incompetent. The appeal is, therefore, dismissed. Parties to bear their own costs. (1) PLD 1968 Lah. 269 (2) 1974 PLC 10