IRSHAD HASAN KHAN.J,- This petition under Article 9 of the Provisional Constitution Order, 198L calls in question the judgement dated 20.3.1982 passed by the Punjab Labour Appellate Tribunal, Lahore, whereby he rejected the appeal of the petit inner 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 a 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 the was Vice President, of the Mazdoor Union of the respondent- authority 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 tis 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 laches each. Later the sentences were remitted on 21.3.1978 and they were released from jail. Muhammad Javaid. Petitioner, as well released Sarwar were separately charge-sheeted for their alleged participation in illegal strike during the detention in jaikon 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 service vide separate orders dated 16.1.1978. Which reads as under:- "You have been convicted by Martial Law Authorities having violated Martial' Law Orders No.5, 12,13,14 and given imprisonment lor a .Period of one year from form 22.12.77. The management cannot keep your post vacant for such long and indefinite period. Your services therefore, are being terminated with immediate effect.
You may collect your dues, through duly authorised representatives of any working day."'
After release from jail. Muhammad Javaid, petitioner, as well as Muhamad Sarwar filed separate petitions under section 25-A of the Industrial Relation Ordinance. 1969, (hereinafter referred to as the Ordinance) for their re-instatement service. Both the petitions were allowed by the Punjab Labour Court No.2. Labor vide identical order dated 1.3.1979 and they were re-instated in service.
3. In case of Muhammad Javaid, the Labour Court vide its order date 1.3.1979. After hearing the parties and perusing to material available before recorded the following finding:- "PW1 petitioner Muhammad Javaid has stated that no inquiry wt held against him. No evidence has been produced by the respondent to the effect that an inquiry was held against the petitioner before his service were terminated. The respondent has produced RW Mr. Zaka Ullah but he has not uttered a solitary word to the left that any inquiry was held against the petitioner. This means that th petitioner was condemned unheard. As such, the order c termination of services of the petitioner is liable to be set aside."
4. In case of Muhammad Sarwar. The following finding of fact was record by Punjab Labour Court No.2. Lahore, vide separate order dated 1.3.1979:- "PW1 Muhammad Sarwar has stated that no inquiry was het before his services were terminated.
The respondent has produce RW1 Zaka Ullah and he also has stated that no domestic inquire was held against the petitioner. As the respondent itself ha admitted that no inquiry was. Held against the petitioner, the order whereby the services of the petitioner were terminated is render illegal and is liable to be set aside."
5. M/s Rustam Sohrab Cycle Factory, respondent No.3 herein, challenge the order of the Labour Court in both these cases through separate appeals before th Punjab Labour Appellate Tribunal.
During the pendency of the appeals, responder No.3 invoked the Constitutional jurisdiction of this Court by means of Writ Petition: No. 1393/79 and 1394/79. Whereby the re-instatement of petitioner Muhammad Javad and Muhammad Sarwar by order 1.3.1979 of the Punjab Labour Court No.2 wa challenged. Both the petitions were accepted. The order of the Labour Court r 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 services of the respondents was properly made under Standing Order l2 or whether it was a colourable exercise of the 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 group the impugned judgment came to the conclusion that termination of the petitioner was termination simpliciter under Standing Order No.12 and that there was io 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 Conrt 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 the 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 petitioner's services were terminated on account of illegal strike, therefore, his case was distinguishable than that of Muhammad Sarwar.
7. I heard Learned counsel for the parties and perused the material available in 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. Indentical charge- sheets have issued to the petitioner and Muhammad Sarwar. I would be advantageous to reproduce the same:- ((urdu Taxts Paragraphs))
A bare perusal of the charge-sheet would show that petitioner and Muhammad Sarwar were charge-sheeted on 30.11.1977 for participating in illegal strike. Their order of termination is also identical. Merely because Zaka Ullah.-RW I. Stated with particularity in the case of Muhammad Sarwar that lie was proceeded against for alleged participation in illegal strike, whereas no such statement was mads by Zaka Ullah. RW.I. In the case of Muhammad Javaid; would not ipso facia 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 arc in pari materia with each other, therefore, no justification arose for melting of a discriminator)' treatment to the petitioner qua Muhammad Sarwar. Needless to point our 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 P.S.C. 697), ClerK the termination of the petitioner's services was 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 else were 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 case of Muhammad Bashir and others v. Chairman. Punjab Labour Appellate Tribunal, Lahore and others (1991 SC MR 2087) and General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslant and others (1991 SC.MR 2169).
In view of the above, the impugned order dated 22.12,1981, 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 back benefits. There shall be no order as to costs.