This petition under Article 9 of the Provisional Constitution Order, 1981, calls in question the judgment dated 20-3-1982 passed by the Punjab Labour Appellate Tribunal, Lahore, whereby he rejected the appeal of the petitioner against the decision dated 22-12-1981 passed by the Punjab Labour Court No. 2, Lahore, dismissing his grievance petition.
2. The facts in brief are that Muhammad Javaid, petitioner herein, was workman in Rustam Sohrab Cycle Factory, Lahore, respondent No. 3 herein. Some dispute arose between the management and the union as to whether 24-11-1977 declared as a public holiday by the Federal Government, was applicable to the respondent-Factory or not. A section of the employees reported for duty while the others absented. In consequence, some of the workers including the petitioner, who at the relevant time was Vice-President of the Mazdoor Union of the respondent-Factory, and one Muhammad Sarwar, Office Secretary, went on strike which was declared illegal by the Labour Court. Due to gravity of situation, the petitioner as well as Muhammad Sarwar were tried by the Summary Military Court which resulted in their conviction on 22-12-1977 and sentenced to suffer rigorous imprisonment for a period of one year with five lashes each. Later the sentences were remitted on 21-3-1978 and they were released from jail. Muhammad Javaid, petitioner, as well as Muhammad Sarwar were separately charge-sheeted for their alleged participation in illegal strike during the detention in jail on 30-11-1977 before their conviction and sentence by the Military Court. They, however, refused to submit the reply to the charge-sheet and reserved their right to do so after their release from jail. However, in view of their conviction, the management decided to terminate their services vide separate orders dated 16-1-1978, which reads as under:-- "You have been convicted by Martial Law Authorities having violated Martial Law Orders Nos. 5, 12, 13, 14 and given imprisonment for a period of one year from 22-12-1977. The Management cannot keep your post vacant for such a long and indefinite period. Your services, therefore, are being terminated with immediate effect.
You may collect your dues, through duly authorised representatives on any working day."
After release from jail, Muhammad Javaid, petitioner, as well as Muhammad Sarwar filed separate petitions under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) for their reinstatement in service. Both the petitions were allowed by the Punjab Labour Court No. 2, Lahore, vide indentical orders dated 1-3-1979 and they were reinstated in service.
3. In case of Muhammad Javaid, the Labour Court vide its order dated 1-3-1979, after hearing the parties and perusing the material available before it, recorded the following finding:- "P.W. 1 petitioner Muhammad Javaid has stated that no inquiry was held against him. No evidence has been produced by the respondent to the effect that an inquiry was held against the petitioner before his services were terminated. The respondent has produced R.W. 1 Mr. Zaka Ullah but he has not uttered a solitary word to the effect that any inquiry was held against, the petitioner. This means that the petitioner was condemned unheard. As such, the order of termination of services of the petitioner is liable to be set aside:"
4. In case of Muhammad Sarwar, the following finding of fact was recorded by Punjab Labour Court No. 2, Lahore vide separate order dated 1-3-1979:-- P.W. 1 Muhammad Sarwar has stated that no inquiry was held before his services were terminated.
The respondent has produced R.W. 1 Zaka Ullah and he also has stated that no domestic inquiry was held against the petitioner. As the respondent itself has admitted that no inquiry was held against the petitioner, the order whereby the service of the petitioner were terminated is rendered illegal and is liable to be set aside."
5. M/s. Rustam Sohrab Cycle Factory, respondent No. 3 herein, challenged the order of the Labour Court in both these cases through separate appeals before the Punjab Labour Appellate Tribunal.
During the pendency of the appeals, respondent No. 3 invoked the Constitutional jurisdiction of this Court by means of Writ Petitions Nos. 1393/79 and 1394/79, whereby the reinstatement of petitioner Muhammad Javaid and Muhammad Sarwar by order dated 1-3-1979 of the Punjab Labour Court No. 2 was challenged. Both the petitions were accepted. The order of the Labour Court re-instating the petitioner as well as Muhammad Sarwar were declared as without lawful authority and the case was remanded for decision afresh with the following directions:-- "The applications of the petitioners should be treated as still pending and disposed of in accordance with law after first deciding whether the termination of the services of the respondents was properly made under Standing Order 12 or whether it was a colourable exercise ofthe power under that Order and that the case of the respondents in essence fell under Standing Order 15----- -------.."
6. On remand, the Labour Court, after appraisal of material placed before it through the impugned judgment came to the conclusion that termination of the petitioner was termination simpliciter under Standing Order No. 12 and that there was no violation of Standing Order No. 15. On appeal, Punjab Labour Appellate Tribunal, vide judgment dated 20-3-1982, concurred with the finding recorded by the Labour Court that the termination of service of the petitioner was covered by Standing Order No. 12. As regards alleged discriminatory treatment meted out to the petitioner qua Muhammad Sarwar, it was observed that service of Muhammad Sarwar had been terminated on account of illegal strike without following the procedure laid down in Standing Order No. 15, but there was nothing on record to show that the petitioner's services were terminated on account of illegal strike, therefore, his case was distinguishable than that of Muhammad Sarwar.
7. I have heard learned counsel for the parties and perused the material available on record. The impugned order is based in disregard of the charge---sheet issued to the petitioner wherein it was specifically alleged that he incited his co-workers to participate in illegal strike. Identical charge-sheets have been issued to the petitioner and Muhammad Sarwar. It would be advantageous to reproduce the same:- A bare perusal of the charge-sheet would show that petitioner and Muhammad Sarwer were charge-sheeted on 30-11-1977 for participating in illegal strike. Their order of termination is also identical. Merely because Zaka Ullah, R.W. 1, stated with particularity in the case of Muhammad Sarwar that he was proceeded against for alleged participation in illegal strike, whereas no such statement was made by Zaka Ullah, R.W.1, in the case of Muhammad Javaid, would not ipso facto lead to the conclusion that the petitioner's case was distinguishable from that of Muhammad Sarwar. The allegations levelled against the petitioner as well as Muhammad Sarwar are in pari materia with each other, therefore, no justification arose for meting out a discriminatory treatment to the petitioner qua Muhammad Sarwar. Needless to point out that the order of reinstatement passed by the Labour Court in favour of Muhammad Sarwar was upheld by the Supreme Court in the case of Pakistan Cycle Industries Cooperative Society Ltd. v. Muhammad Sarwar Butt 1982 SCM R 950 clearly the termination of the petitioner's services were mere device to avoid holding a domestic inquiry into the allegation of misconduct, therefore, the same cannot be construed as termination simpliciter within the purview of Standing Order No.12. Muhammad Sarwar has since been reinstated in service, following the rule of consistency, I am inclined to hold that the petitioner is also entitled to the same treatment being similarly placed.
7. As regards back benefits, the petitioner has not even asserted before the Labour Court, Labour Appellate Tribunal or during the course of these proceedings that he, remained out of job and was not gainfully employed elsewhere during the period of his dismissal. He is, therefore, not entitled to back benefits, applying the principle laid down by the Supreme Court in the cases of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCM R 2087) and General Manager National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and others (1992 SCM R 2169).
In view of the above, the impugned order dated 2212-1981, passed by the Punjab Labour Court No.2, Lahore, and judgment dated 20-3-1982, passed by the Punjab Labour Appellate Tribunal, are declared as without lawful authority. The petitioner is directed to be reinstated in service forthwith without back benefits. There shall be no order as to costs.