DECISION This is an appeal under section 36-D of the Industrial Relations Ordi--nance, 1969, against an order dated 11-8-1975, passed by the Junior Labour Court No. II of Lyallpur, whereby the application for re- instatement was dis--missed. The facts of the case are, these. The appellant Syed Ashiq Hussain Shah was employed as a clerk in the Crescent Jute Products Limited, Jaran--wala. On 16-11-1974 at 9-00 a.m. he wanted to enter into the Mills Premises, through Generator gate. He was checked by Muhammad Alam, Watchman. The appellant was told to enter the Mills through Labour Office. Hot words were exchanged and the appellant gave a kick to the watchman. Finally two other workers came to the spot and separated the parties. The watchman made a report to the Management to the effect that the appellant was guilty of riotous and disorderly behaviour during working hours at the establishment. This report is Exh. RA. on record. The Accounts Officer recommended disciplinary action against the appellant. He further stated that previously attitude of the appellant was subversive of discipline. On these reports Mr. Nazar Hussain, Administrative Manager, on 17-11-1974 issued a charge-sheet to the appellant. There were three charges against him:-
(1) that he obstructed watchman Mohammad Alam in the performance of his official duties, he gave him beating and abused the senior officer of the Mills.
(2) earlier he had beaten up Mills Manager in his office.
(3) He did not attend to his dirties and was always busy fn Union affairs.
2. The appellant refuted all the charges. His explanation was found unsatisfactory. Mr. Wasim Ahmed Farooqi, Labour Officer of the Mills, was appointed as an Inquiry Officer in this case. The appellant nominated one Jalal Masih a Sweeper to be present in the inquiry to assist him. The Inquiry Office refused to allow Jalal Masih to assist the appellant on the ground that he was illiterate and as such he was not in a position to assist him in the inquiry. Thereafter the appellant nominated one Amanat Ali. He was also not allowed to assist the appellant during the inquiry on the ground that he bad been dismissed by the Management and as such he was not a worker in the establishment.
3. The Inquiry Officer informed the appellant about the date of hearing but he remained absent.
The entire evidence was recorded in his absence and a verdict of guilty on all the three charges was given by the Inquiry Officer. A second show-cause notice was given to him. The appellant raised numerous objections on the inquiry. He said that the administrative officer was not competent to issue a charge-sheet because he was not an employer that the Mills Manager could not take any decision in this case because he himself was complainant and he could not judge in his own cause and that ex parte proceedings could not be taken against him because at the date of hearing he was detained by the Management in the Labour Office. After his explanation an order of dismissal was passed by the Mills Manager on 2-1-1975 (copy Exh. P.G). The Junior Labour Court found that there was no flaw in the inquiry, so application of the appellant for re-instatement was dismissed.
4. The first point argued before me wag that a dismissal order could not be passed by Mr. Abdullah Yaqoob Mills Manager, in this case because he was complaisant himself. It may be stated that one of the charge against the appellant was that he gave beating to Abdullah Yaqoob and in this way he was guilty of riotous and disorderly behaviour. I agree with the learned counsel of the appellant that the dismissal order could not be passed by the Mills Manager in this case. The proceedings in the domestic inquiry are required under the provisions of the Standing Orders Ordinance, 1968 to be conducted in accordance with the principles of justice. No Officer of any establishment can be allowed to become a prosecutor, a judge or punishing authority when he himself is the complainant. In this connection I am fortified by the authorities. Mohd. Mohsin Siddiqui v. Govt. of W.
Pak. (PLD 1964 SC 64) and Chairman, WAPDA v. Labour Union (1967 PLC 768). In the present case the Mills Manager was the complainant of one charge and therefore he could not be a judge and punishing authority to pass a final order of dismissal. His order, therefore is bad in law.
5. It was further argued that the appellant was not allowed to nominate any workman to assist him in the enquiry. On this point the provisions of law are given in Standing Order No. 15(4). The relevant portion is reproduced below; "Workman proceeded against may, if he so desired for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall alto m the workman so nominated to be present in the enquiry to assist the workman proceeded against."
6. It is the discretion of a workman to nominate a co-worker as his assistant and it is incumbent upon the employer to allow the workman so nominated to be present during the enquiry. In the first place appellant appointed one Jilal Maseeh for his assistance. There was no doubt that he was a sweeper and was illiterate but these were nut the grounds for the enquiry officer not to allow such a worker to assist him. The reasoning of the enquiry officer that the said workman was illiterate or he could not be useful in the enquiry are meaningless. The majority of the workmen is illiterate. Tile law cannot impose any restriction of this type on any nomination. Further more the appellant no- minted another person Amanat Ali. He was worker in the Mills but he was dismissed worker and his cast was pending in the Court. He was also not allowed to assist the appellant in the enquiry. The appellant was deprived of the available right. On this ground also the dismissal order should be set aside.
7. The last contention was that the Management contravened the provisions of section 47 of the I.R.O., 1969 because the permission of a Labour Court was not obtained before passing the impugned order. The appellant was the General Secretary of Workers' Union which was C. B. A. He railed an industrial dispute in November 1974. Bilateral negotiations failed and so a strike notice was issued. The matter came up before the conciliator and it was on 1-1-75 that conciliation proceedings failed. It appears that the Management took hasty proceedings on 2-1-75 while issuing the dismissal orders. It may- be mentioned that the appellant was quite vigilant and he was aware of the fact that if the industrial dispute was not taken up before his dismissal the Management was likely to punish him. He lost no time on 1-1-75 and filed the industrial dispute in this Court. The copy of the award has been placed on the record of this Court. It does not disclose as to when the dispute was filed in this Court. I have checked up the record of this Court and I found that the dispute was filed by the appellant on 1-1-75. It is therefore, a proved fact that the industrial dispute was pending in this Court on 2-1-75 when the dismissal order was passed.
Section 47 (2) of the I.R.O., 1969 has imposed restriction on an employer while an industrial dispute is pending in any quarter. This section runs as under.
"Notwithstanding anything contained in subsection (1) an officer of a registered Trade Union shall not, during the pendency of any proceed--ings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court"
8. The scheme of the section is that officers of the Trade Union are saved from termination or dismissal when an industrial dispute has been raised. Such a dispute can 'be pending either before a conciliator an arbitrator or a Labour Court. In any such case if the employer intends to punish any officer of the Trade Union, it is necessary for him to obtain the previous permission of the Labour Court. In the present case the appellant v as a General Secretary of the Union which has raised the industrial dispute the conciliation proceedings failed on 1-1-75 and on the same date the industrial dispute was filed in this Court. On the same date a telegram was sent to the Management by the appellant to the effect that Union had filed the industrial dispute in this Court. The telegram (Exh. PA was received by the Management on the same date. It was within the knowledge of the Management that the industrial dispute had been filed. In these circumstances no order of dismissal could be passed without obtaining permission of Labour Court.
9. For the foregoing reasons the appeal is accepted, the dismissal order is set aside and the respondent is directed to re-instate the appellant with back benefits.