This is an appeal under section 37(3) of the Industrial Relations Ordinance, 1969 (hereinafter - called the Ordinance), against an order of the learned Chairman of the First West Pakistan Industrial Court, Karachi, dated 7th March 1970. The impugned order was. passed on an application under section 34 of the Ordinance. The facts giving rise to the present appeal, briefly put are these.
2. The appellant; which is a company manufacturing dry battery cells, charge-sheeted two of its workers for misconduct. The appellant dismissed them after holding an enquiry and giving them an opportunity to participate in the enquiry. The workers of the respondent-Union raised three demands by their letter dated 1st January 1970, one of these demands being for re-instatement of the two workers, who had been dismissed by the appellant. The appellant made an application on 5th January 1970; under section 34 of the Ordinance for adjudication of the demands raised in the respondent's letter dated 1 January 1970. These demands related to the re-instatement of two workers, namely, Fazal Mahmoud and Muhammad and for payment of wages of all the workers for Festival Holiday of Jumat-ul-Wida, i.e. on 5th December 1969. In the application under section 34 of the Ordinance, the appellant claimed as under:- "The aforesaid two workers have been dismissed for committing acts of misconducts_ punishable with dismissal under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. This is a right secured and guaranteed to an. employer under the lave to dismiss workers for having committed misconduct."
3. Mr. Mahmood A. Ghani, the learned Representative for the appellant, supported the ground reproduced above by Standing order 15 of the Standing Orders Ordinance, 1968. The submission, inst short, of the learned Representative for `the appellant was that the law-having-guaranteed or 'secured a right to the appellant-to dismiss the workmen, the Court should have adjudicated the Industrial Dispute relating-to the re-instatement of the-two workmen.
4. The main question, as rightly urged by the learned Representative for the appellant, is as to whether the right to dismiss a workman has been secured or guaranteed under, any law or not. . I have given my very careful consideration to this case and I have come to the conclusion that the right to dismiss a workman is not a right which can be said to have been guaranteed or secured under the Standing Orders Ordinance, 1968. The right to dismiss a servant follows from Contractual Right between the parties, namely, the employer and the employee. In this connection, reference may be made to the case of Karnaphully Paper Mills Limited v. Workers' Union (1961 PLC 991). In that case, Cornelius, C. J.; observed as under:- "But in the case of Private employment, the ordinary rule of master and servant must be sustained, namely, that without cause assigned the master may dispense with the services of the servant with notice or on payment of salary in lieu of notice. The servant may equally exercise the power of relinquishing his appointment on similar terms. These are mutual and reciprocal promises and there is no principle available in the relevant law which could operate to minimise the effect of the counterpart promises."
5. In order to determine as to whether the right to dismiss is a right guaranteed under any provision of law; the prima question will be as to whether master or the employer could dispense with the services of its workers in the absence of Standing Orders Ordinance. The reply to this question would be that even if the Standing Orders Ordinance was not there, the appellant could dismiss its employees. I have, therefore, come to the conclusion that the right to dismiss the employees is a Contractual Right and it cannot be said to be a right which has been guaranteed under the Standing Orders Ordinance. The Standing Orders Ordinance proceeds on the presumption that the, master has a right to dismiss its servant.It has, in fact, made provisions to safeguard the interest of the workers than the employers have for these reasons, come to the conclusion, that the e employer could dismiss its employee "without taking resort to the Standing Orders Ordinance, and it cannot, therefore, be said that any such right was guaranteed, under the said provisions of the Standing Orders. The provision of section 34 of the Ordinance, in these circumstances, was not attracted: The appeal is, there-- fore, dismissed.