' The under consideration application under section 25-A of the Industrial Relations Ordinance, 1969 read with Standing Order 12 of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been brought by the United Christian Hospital Employees' Union (Regd.) hereto after referred as the petitioner-Union against the Management of the United Christian Hospital, Lahore seeking the re-instatement of eight workers who were members and office-bearers of the petitioner-Union and whose particulars are given in para. 1 of the application and who were dismissed from service by the Management on the charges of misconduct.
2. It is alleged in the petition that in the first week of January, 1972 a delegation of the employees of the hospital called upon the Medical Director of the Hospital and requested him to redress the grievances of the employees of the hospital. He however disregarded the request altogether.
Subsequently the employees of the hospital brought certain allegations of corruption through an application against three officers namely Samson Mohoahe, Director Administration, Edger B. Ram, Assistant Administrator and J. D. Gill, Stores Supervisor requesting the initiation of disciplinary action against the said officers. The Medical Director instead of taking action against the officers threatened the employees with dire consequences. The employees of hospital therefore reported to the Chairman of the Board of Directors who constituted an Enquiry Committee to investigate into the charges of corruption against the aforesaid officers. Subsequently the petitioner-Union made a report to the then Health Minister of the Punjab who constituted another Committee to investigate the allegations of corruption. On 17th April 1972, two permanent employees of the hospital, namely Mukhtar Masih, the Head Cleaner and James, the Head Mali who were executive members of the Union were demoted by the Medical Director for their Trade Union activities. On 8th June 1972 the Medical Director was informed through a notice that Union would lodge a token protest on 9th June 1972 against his unjust and unreasonable attitude. No reply was sent to this notice. On 9th/lO th June 1972, a token protest was conducted by the Union against the attitude of Medical Director.
On 10th June 1972 at about 5-30 p.m. The supporters of Medical Director numbering about 60 armed with lathis and brick-bats, etc., attacked the members of the Union, caused injuries to many of them and turned them out of hospital premises forcibly. In this manner 200 employees remained illegally locked-out for about thirteen days. Ultimately the then Special Assistant to the Governor and Dr. Ghulam Hussain, M. N. A. Who was also Chairman of Enquiry Committee constituted by the Health Minister intervened and on 23rd June 1972 locked-out employees were allowed to resume their duties. On the same day the Medical Director charge-sheeted the aforementioned 8 employees for misconduct on the allegations that they illegally struck the work, took away the keys of their departments with them, instigated and incited several other employees of the hospital to go on illegal strike and that on 10th June 1972 at about 6 p.m. During working hours and visiting hours of the hospital they along with others indulged in brick-batting which resulted in injuries to several employees of the hospital and jeopardized lives of several patients and visitors. The concerned employees were required to give their explanations in writing within three days of the receipt of the charge-sheet. They were also placed under suspension. On 28th June 1972, the said employees submitted individual explanation to the Medical Director denying the allegations levelled against them. The Medical Director hurriedly appointed an Enquiry Officer who was an outsider to hold an enquiry against the said employees. The employees concerned made various representations to the Medical Director that the Enquiry Officer was biased and partial against the employees and that he should be substituted by an impartial Enquiry Committee. Their protest was not considered at all, enquiry was held ex parte against them and on the basis of the report of the Enquiry Officer the said employees were dismissed by the Medical Director wrongfully.
According to the petitioner-Union the orders of dismissal of the aforesaid 8 employees were illegal, void and wrongful on the following grounds :-
(a) Industrial Dispute was pending between the Management and the petitioner-Union. The employees concerned were mostly, the office-bearers of the petitioner-Union and therefore, their dismissal without the permission of the Court was violative of section 47 of the Industrial Relations Ordinance, 1969.
(b) The charge of going on illegal strike was not at all borne out by the facts. The employees were merely on a token protest. They were forcibly turned out of the hospital by the Medical Director with the help of the Police and his partymen. In spite of the intervention by Dr. Ghulam Hussain, M. N. A.
And Javaid-ur-Rehman the then Special Assistant to the Governor, the 8 employees concerned were not allowed to resume their duties.
(c) The charge of the employees being disorderly and riotous was baseless not borne out by the facts.
(d)That the Enquiry Officer was partial and biased against the employees and the enquiry proceedings were thus vitiated.
(e) The employees concerned were not afforded an opportunity to explain the charges levelled against them and to produce their defence. The enquiry was conducted ex parte against them.
3. The Management of United Christian Hospital i. e. The respondent resisted the application vehemently and besides resulting the allegations on merits raised the following preliminary objections :- (1)The petitioner-Union had no locus standi to file the present petition as it was illegally constituted, inasmuch as, its constitution was in violation of the provisions of section 7(d) of the Industrial Relations Ordinance.
(2)Application under section 25-A was not also maintainable for the reason that the provisions of section 25-A (1) regarding the service of the grievance notice were not complied with.
(3)The United Christian Hospital was not an industry within the meaning of the Industrial Relations Ordinance or an Industrial and Commercial Establishment within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, this Court had no jurisdiction to entertain the present petition nor the same was legally maintainable.
4. As regards the respondent's objection that the pet boner had no locus stand' to file the present petition, inasmuch as, it was not legally constituted, it appears that the respondent has based this objection on the provisions of section 7 (i) (d) which provides that the number of persons forming the executive shall not exceed the prescribed limit and shall include not less than seventy-five per cent. From amongst the workmen actually engaged and employed in the establishment or establishments of the industry for which the Trade Union has been formed. It is contended in this behalf that most of the petitioners who have since been dismissed still continued to be the office- bearers of the petitioner-Union. They being no more workmen actually employed in the United Christian Hospital, the percentage increased the authorized strength as provided in clause (d) of section 7 (1) ibid. P. W. 10 Amanul Dass one of the dismissed employees stated that the office- bearers of the Union were the same who were office-bearers at the time of trouble. He could not tell as to how many officer-bearers were still in the employment of the hospital. He, however, admitted that the President, General Secretary, Treasurer and a few members of the executive committee were dismissed. P.W. 12 Mr. Wilson Rahim Bakhsh who is also one of the dismissed employees and is the General Secretary of the petitioner-Union has stated that Mr. Robert Dass was the President of the Union, the witness was the General Secretary, Mr. Naimat Sher was the Treasurer, Mr. Stiphen Paul was the Propaganda Secretary, M/s. Maqbool, Albert, Mukhtara, Victor Denial, Sarfraz Manual, Rashid, Kanwal, Manzoor and Ghulam Masih were the members of the executive committee. He further stated that these persons continued upto date to be the office holders of the Union. He stated that after January, 1972 no election of office-bearers was held. Mr. Mohammad Amin Alvi a senior clerk of the office of the Registrar, Trade Unions, Lahore has been examined as P. W.
13. He stated that according to the record maintained in the office of the Registrar, Trade Unions there were 9 office-bearers and 19 members of the executive committee, in all totalling 28 officer-bearers of the petitioner-Union. He produced Exh. P. 60 the copy of the list of officer-bearers including the members of the executive committee. The contents of the list Exh. P.
60 indicate that in all there are 28 office-bearers of the petitioner-Union including 19 members of the Executive Committee. 8 employees in respect of whose dismissal the present application has been brought are included in this list. They are Robert Dass, President, Wilson Rahi Bukhsh, General Secretary, Naimat other Treasurer, Stiphen Paul Propaganda Secretary and Albert Maqbool, Lawrance Lazrus and Amanual Dass members of the executive committee. These dismissed employees still continued to be the-office bearers of the petitioner-Union. It thus transpires from the evidence produced by the petitioner-Union itself that on 28-8-72 when the present petition was filed by the petitioner-Union, the executive of the petitioner-Union included 8 persons who were the dismissed employees of the U. C. H. If these persons are not to be deemed as workmen actually engaged or employed in the establishment as envisaged in section 7 (i) (d) the result would be that the executive of the petitioner-Union would be having more percentage of non- workers than what is permitted by law. Brooke Bond Workers' Union v. MI s. Brooke Bond (Pak.) Ltd., Karachi it was held that where more than 25% of the total number of the officers of the Union were persons who were not for the time being employed or engaged in the respondent's industry with which the Union was concerned, a strike notice given by such Union and conciliation proceedings founded on such a strike notice were null and void and the industrial dispute was liable to be1 dismissed. As a matter of fact the above authority cited by the learned counsel for the respondent does not deal with the point that if the dismissed or discharged workers are to be treated as outsiders and not actually engaged this authority is, therefore, distinguishable on facts. On behalf of the petitioner-Union, reliance has been placed on Standard Printing Press, Karachi v. Workers'
Union. In this case the honourable Appellate Tribunal of Sind has held that the words "actually engaged" have been used in contrast to an outsider and not a person dismissed or discharged or retrenched as mentioned in the definition of worker in section 2 (xxviii) of the I. R.0. Most respectfully following the afore-mentioned judicial precedent we find that the petitioner-Union cannot be treated as invalidy constituted merely because that at the time of filing of the under-consideration petition its executive included 8 workers who were by that time dismissed. The objection is therefore, overruled.
' So far as the second objection of the respondent before instituting the present petition the petitioner to serve the grievance notice as required, it is observed that P. W. 1 Mr. Robert Dass has stated that on 18-8-72 he and other dismissed employees gave notice under section 25-A to the Medical Director by hand. His peon received the notice and gave signature. The receipt Exh. P. 2 has been produced in this behalf, according to Mr. Robert Dass, Yousef Masih had signed the receipt in his presence. The witness repudiated the suggestion that no notice under section 25-A was given and that the story of giving of notice had been concocted after the respondent took objection in the reply statement in that respect. It is noteworthy, there is, mention of the service of grievance notice in the present petition. Surprisingly Mr. Robert Dass in the examination-in-chief stated that notice was given to the Medical Director by hand by obtaining the signatures of his peon on receipt Exh. P. 2 but in the cross-examination, he stated that notice was given by him to the Chairman, Board of Directors. P. W. 12 Mr. Wilson Rabim Bakhsh who is the General Secretary of the petitioner- Union has given a different account of the matter. He has stated that the Union gave single notice in respect of the dismissed employees. The grievance notice was given by this witness (Wilson Rahim Bakhsh, General Secretary) in person and he obtained the receipt in diary. In the cross- examination he stated that he had delivered the grievance notice to Bishop Anayat Masih Chairman, Board of Directors. He further admitted that the employer of all the dismissed persons was the Medical Director but the notice was delivered by this witness to the private servant of Bishop Anayat Masih whose name the witness had forgotten. Exh. P. 59 has been produced as copy of the notice. Exh. P. 2 purports to be type written acknowledgment which reads:- "ACKNOWLEDGMENT ' Bishop Anayat Masih.
' Received a letter under section 25-A (3), I. R.
0. From the U. C. H. Employees' Union, Gulberg-III, Lahore.
(Sd.) Yousaf Masih ' Dated 19th August 1972."
' Under the word 'acknowledgment' and above the words received a letter the words "Bishop Anayat Masih are written in manuscript in blue-black ink. Against the word signatures the name of Yousaf Masih in Urdu in red pencil is written. Between the words dated 1972, the figures 19th August, 1972 in red are inserted. This receipt is pasted on the peon book purporting to be of U. C. H.
Employees' Union. The first entry in this book is dated 21st September, 1970 and the last entry other than the Acknowledgement in question is No, 209, dated 18th August, 1972, vide this last entry a communication addressed to Rev. J. S. Q. Bakhsh was received by somebody whose signatures are not legible on 19th August, 1972. It is also noteworthy that all the entries in this peon book are duly entered in the appropriate columns. The last column is in respect of Acknowledgment and in this column the persons who received the letters communications have fixed their signatures. The only exception is acknowledgment, Exh. P. 2 which is pasted on the peon book and otherwise finds no2 mention in the appropriate column of the peon book. Yousaf Masih who is alleged to have received the grievance notice,-vide this acknowledgment has not been examined to acknowledge the signature on Exh. P.
2. Bishop Anayat Masih has also not been produced to state that he actully received the grievance notice. Exh. P. 59 purports to be copy of the grievance notice. It is however titled as an application under section 25-A (3) of the Industrial Relations Ordinance, 1969 read with Standing Order 12 framed under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, against the dismissal orders passed by Medical Director against 8 members of the Union. This application purports to have been addressed to Board of Directors, U. C. H. Gulberg- III, Lahore. This is a type-written application consisting of 7 pages typed on one side of such leaf. On this so-called office copy of the notice there are no signatures of the person who received the notice and there is no indication to the effect as to when and to whom this application notice was delivered, From the aforesaid evidence produced by the petitioner-Union about the service of the grievance notice, we arrive at the following conclusions :-
(1) There is no mention about the alleged service of the grievance notice in the application filed in the Court.
(2) Mr. Robert Dass President of the Union who appeared as P. W. 1 in the examination-in-chief stated that the notice was delivered by him by hand to the Medical Director, Dr. Benjamin and the receipt was signed by Yousaf Masih the peon of the Medical Director. In the cross-examination he has given a different version by deposing that the notice was sent to the Chairman.
(3) Mr. Wilson Rahim Bakhsh, the General Secretary of the employees' Union contradicting Mr. Robert Dass stated that the union gave notice to Bishop Anayat Masih, Chairman, Board of Directors. The notice was given to some private servant of Bishop Anayat Masih whose name the witness had forgotten.
(4) The acknowledgment Exh. P. 2 is quite unusual unlike all other entries in the peon book in which it is pasted. It is typed written. The names of Bishop Anayat Masih and of one Yousaf Masih are written in black ink and read pencil.
(5) Bishop Anayat Masih and Yousaf Masih who allegedly signed in token of having received the notice have not been produced to prove the service of the notice.
(6) The contents of Exh. P. 59 the copy of the alleged grievance notice do not in any manner indicate that the original was served on the Board of Directors to which the notice purports to have been addressed.
6. It clearly follows that the petitioner-Union has utterly failed to prove the service of grievance notice on the respondent before institution of the present application. Section 25-A (1) of the I. R.0.
(as it was at the relevant time) provides that a worker may bring his grievance in respect of any right guaranteed or secured to it by or under any law or award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Trade Union, within three months of the day on which the cause of such grievance arises. In Saleem Sons' case it was held that the provisions of Standing Order 18 (b) in respect of service of grievance notice are mandatory. In Nasim Silk Industries' case his Lordship Mr. Justice Dorab Patel of Sind Baluchistan High Court held that the provisions of section 25-A are pari materia with Standing Order 18(b), therefore non-compliance of the provisions of section 25-A (1) was fatal to any proceedings under the said section. Similar view has been taken by the Sind Labour Appellate Tribunal in Buwani Industries Ltd. v. Abdullah.
7. In the light of what has been said above it is concluded that in the circumstances of the under consideration case the petitioner-Union failed to comply with the mandatory requirements of service of grievance notice on the employer before the institution of the under consideration application under B section 25-A and such non-compliance is fatal to the present petition which is3 4 5 thus, liable to be dismissed on this short ground. This preliminary objection raised by the respondent is accordingly upheld.
8. Third legal preliminary objection, which has been raised by the respondent in the crude reply statement as an additional preliminary objection is to the effect that the U. C. H. Was not an industry within the meaning of the I. R.
0. Or an Industrial and Commercial Establishment within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and therefore the Labour Court had no jurisdiction to entertain the present petition and the same was thus not legally maintainable. The expression "Industry" according to clause (xiv) of section 2 of the I. R. O., 1969 means any business, trade, manufacture, calling, service, employment or occupation. This definition is wide enough and embraces within its purview calling, service, employment and occupation which may have no similarity with business, trade and manufacture. In A. F. Ferguson & Co. v. 5th Sind Labour Court, Karachi and another the Sind & Baluchistan High Court has held that the definition of the expression "industry" as contained in section 2(xiv) of the I. R.0. Is wide enough to include all the professions including the learned profession of chartered accountants. In this case their Lordships of the Sind-Baluchistan High Court in their detailed judgment traced the history of this definition right from the time of the enforcement of the Industrial Disputes Act, 1947. In the said Act in section 2(j) it was provided that "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation for avocation of workmen. This definition of the expression `industry' was retained both in the Industrial Disputes Ordinance, 1959 and the West Pakistan Industrial Disputes Ordinance, 1968 and even in the Industrial Relations Ordinance, 1969 as originally enacted the definition was the same. It is therefore very clear that the definition as it so stands marks a complete break with the past.
9. It is noteworthy that in this case the Sind & Baluchistan High Court further held that it was true that a line would have to be drawn in fair and just manner so as to exclude some callings, trader or undertakings. If all the words used are given their widest meanings, all services and all callings would come within the purview of the definition ; even services rendered by servant purely in a personal or domestic matter or even in a general way should fall within the definition. It is not and cannot be suggested that in its wide sweep the word service is intended to include services howsoever rendered, in whatever capacity and for whatever reason. A line has therefore to be drawn somewhere in every definition, but the question where that line has to be drawn must depend on the definition and the statute in which the definition occurs.
10. In the circumstances of the under consideration case the respondent is the United Christian Hospital Lahore. This hospital is being run by a society registered under the Societies Registration Act, 1860. The objects of the society according to the constitution of U. C. H. Inter alia are to establish and maintain a hospital for the care of the sick and for prevention of diseases with equal benefits to all without reference to race, class or creed ; to provide educational facilities as far as resources permit for those preparing to serve by the care of the sick, of the prevention of the disease or the promotion of health ; and to promote enquiry and research as far as resources permit into matters concerning health and disease and whatever may contribute thereto. It is also provided that no member of the Board of Directors shall receive any payment in return for his service as a member of the Board of the Directors except that he may be decompensated for out of pocket expenses incurred in connection with the attendance at meetings of the Board provided further that the employees of the Board of Directors who are by virtue of office or election made members of the Board shall not be considered to be drawing their regular salaries as members of the Board of Directors.6
11. There is sufficient oral as well as documentary evidence on the record to suggest that in this hospital fees are charged from patients who receive treatment from this hospital. The charges of this hospital are certainly higher than other government and charitable hospitals in the country. In July, 1969 Air Marshal Noor Khan the then member of council of administration submitted a Labour Policy to the Government of Pakistan on 5-7-1969. In this Policy in its para. 6 it was recommended that for the growth of Trade Unions the restriction on the rights of association of employees of hospital be removed. It was further pointed out in para. 14 of the Policy that the Legislative restriction placed on the personnel of hospital in joining Trade Unions retarded the growth of Trade Unions and it needed to be done away with. This policy appears to have been incorporated in the legislative changes in the law dealing with Industrial Relations as contained in the Industrial Relations Ordinance, 1969. The wide embracing definition of "industry" as contained in section 2(xiv) of the I. R.0. Would appear to be the result of the aforesaid Labour policy.
12. Seen in this perspective and keeping in view the fact that in the U. C. H. Pretty high fees and other expenses are charged for treatment given in this hospital it is an industry within the meaning of section 2(xiv) ibid. Reliance on behalf of the respondent is placed on the judgment of the Indian Supreme Court in the well known case of the Management of Safdar Jhang Hospital v. Kuldeev Singh Sethi wherein the Supreme Court of India has held that a hospital even run by private association not on commercial lines was not an industry. It is however noteworthy that those findings of the Supreme Court of India are with reference to the definition of the expression Industry as contained in the Industrial Disputes Act, 1947 which reads : " 'Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or the vocation of workmen."
' This definition is in two parts. The first part envisages any business, trade, undertaking, manufacture or calling of employers and in the second part it is provided that it includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. Unlike this definition of the Industrial Disputes Act, 1947, the definition of the word 'industry' as given in the Industrial Relations Ordinance, 1969 is very wide enough which provides- " industry' means any business, trade, expenditure calling, service, employment or occupation."
' In view of such a wide import of the definition of the word 'industry' as occurring in I. R.
0., 1969, the Indian ruling relied upon by the learned counsel for the respondent would appear to have hardly any bearing on the present case.
13. In view of the above, we find that the U. C. H. Is an industry within the meaning of section 2(xiv).
14. It is also to be seen that in the under consideration case the dismissal of the workmen concerned has not been only challenged on the ground" that the same was violative of section 47 of the I. R.
0. But also on the ground that the dismissal was ordered in utter disregard of the provisions of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. To succeed on this score the petitioner will have to prove that the U. C. H., Lahore was an industrial or commercial employment within the meaning of the Standing Orders Ordinance. The expression Industrial Establishment has been defined in section 2(f) of the Standing Orders Ordinance, while the 'commercial establishment' has been defined in section 2(b) ibid. Keeping in view these definitions, U. C. H., Lahore is neither a commercial establishment nor an industrial establishment within the meaning of the Standing Orders Ordinance.
15. As regards the merits of the case, the dismissal of the employees concerned who are mostly the office-bearers of the petitioner-Union has been challenged, mainly on two grounds. Firstly that an industrial dispute was pending between the Management and the petitioner-Union and during the pendency of the said dispute the employees concerned who were the Office-hearers without the permission of the Court and thus the dismissal was violative of section 47 of the I. R.
0., 1969 and secondly that the Enquiry Officer was partial and biased against the employees and no proper enquiry proceedings were held and the employees concerned were not afforded with an opportunity to show cause and to explain the charges levelled against them. So far as the allegation, that the dismissal was occurred during the pendency of an industrial dispute, it is an admitted fact that the petitioner-Union had made a complaint against M/s. Edgar B. Ram, Samson Monoana and J. D. Gill, the functionaries belonging to the Management of the hospital levelling allegations of theft and corruption etc. On the basis of this complaint an enquiry committee was constituted comprising Rev. J. S. Qadir Bakhsh the Vice Chairman, Board of Directors, Mr. W. H. Mall Director, Rev. James Iqbal and Mr. H. J. Masih. This enquiry committee after holding proceedings for a few days expressed its inability to proceed further. Subsequently the then Health Minister of the Punjab constituted another enquiry committee. This enquiry committee had not yet submitted its report that the developments took place which led to the dismissal of 8 workers concerned. It is to be seen as to whether the matter entrusted to the aforesaid enquiry committee constituted an industrial dispute within the meaning of the I. R.0. Industrial dispute has been defined in section 2(13) of the I. R.
0.:---`industrial dispute' means any dispute or difference between employers and employees or between employers and workman and between workmen and workman, which is with the employment or non-employment or the terms of employment or the conditions of work of any person ; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force.
Thus covers 3 classes of disputes connected with (1) employment o non-employment (2) terms of employment, and (3) conditions of work of any E person. The probe into the allegations of theft and corruption against 3 functionaries belonging to the Management could not appear to be an industrial dispute viz-a-viz the workmen. Moreover section 47 of the I. R.
0. Is applicable only when any conciliation proceedings in respect of an industrial dispute are pending before an Arbitrator, a Labour Court or the Tribunal. In the circumstances of the under- consideration case obviously there was no such pendency and therefore the concerned workmen cannot avail of the. Provisions of section 47 of the I. R.
0.
16. As regards the dismissal of the concerned workers being void for not affording reasonable opportunity to the said workers it is observed that this is a common ground between the parties that no officer belonging to the Management of the U. C. H. Was appointed; as an Enquiry Officer in this case rather in as unusual manner Major (Mst.) Q. M. Sheikh the then Personnel. Officer of the hotel Inter-Continental, Lahore was entrusted the enquiry. The workers concerned were simply informed of the date and time to appear before the Enquiry Officer. When they wanted to ascertain the name and particulars of the Enquiry Officer, the Administration of the hospital refused to disclose these particulars to them. This is however true that the administration of the hospital as well as the Enquiry Officer notified the date, time and place of the enquiry more than once, even through publications in the newspapers. The workers concerned boycotted the enquiry and ex parte proceedings were ordered against them. The Enquiry Officer found them guilty of the charges levelled against these workers and the Medical Director of the hospital made the impugned orders of dismissal without affording an opportunity of show cause without service of any show-cause notice on these employees. In these circumstances we come to the conclusion that the enquiry proceedings conducted against the dismissed workers which culminated into their dismissals cannot be considered as independent and valid.
' I have already concluded that U. C. H. Is neither an industrial establishment nor a commercial establishment within the meaning of the Standing Orders Ordinance, 1968 and therefore the petitioner-Union cannot avail of the provisions of Standing Order 15. In these peculiar circumstances it would be open to look into the facts of the case and to judge independently whether the workers concerned actually committed the misconduct for which they have been punished. In Cinnatnara Tea Estate v. Labour Court, Assam and othersthe Assam High Court held that where no enquiry has been held by the employer before the dismissal of a workman the question of misconduct would be at large and it would be open to an Industrial Tribunal to which the question of dismissal is referred for adjudication to decide for itself on the evidence produced before it as to whether the misconduct was not committed by the workmen. In U. B. Dutt & Co.
Private Ltd. v. Their Workmen the Supreme Court of India held that where the Tribunal find that notice of termination was a colourable exercise of the power test in the employer, in such cases it would be open to the employer to defend his action by leading evidence before the Tribunal to the effect that there was in fact misconduct and therefore termination of service was justified. Similar view was taken by the Industrial Court of East Pakistan in Dada Match Employees' Union v. Dada Match Works.
17. In view of the above we proceed to find as to whether in the light of the evidence produced before the Court the alleged misconduct on the part of the workers concerned is proved or not. In this behalf Robert Dass, Naimat Sher, Maqbool, Lawrance Lazrus Albert and Stiphen Paul stated that the management wrongfully during the pendency of enquiry proceedings to be conducted by the enquiry committee constituted by the then Health Minister of the Punjab denoted Mukhtar as Cleaner and James Headmali. The protest was lodged with the Medical Director but without any redress. Therefore on 9th June 1972 the workers observed token protest at 10 a.m. At tea time. The second protest was made at 12-00 noon at lunch time. The 3rd protest was made after closing hour of the hospital at about 5 p.m. On 10 June 1972 the members of the pocket union sat at the gate of the hospital and did not allow any member of the petitioner-Union to enter into the hospital. On same day at 5-30 p.m. Members of the pocket Union gave beatings to the members of the petitioner-Union, a fight took place thereafter between 2 unions. The Medical Director called the police and asked the police to expel the members of the petitioner-Union from the main gate of hospital. After that no member of the petitioner-Union was allowed to resume duty. On 23-6-1972 the petitioner-Union reported the matter to Dr. Ghulam Hussain an Advisor to the then Governor and Mr. Javaid-ur-Rehman, Special Assistant to the then Governor and with their intervention the Management allowed the members of the petitioner-Union to resume duty.
18. In rebuttal Anwar Din, Gulzar Masih, Wallace Jan, Dr. Willis, Muhammad Sabir and Dr. N. Banjamin the then Medical Director stated that on account of paucity of funds the Medical Director made an order that no employee could be paid any advance. The Union resented this order. They approached the Medical Director for the removal of grievance. He expressed his inability. On 9-6- 1972 at about 8-00 a.m. The workers concerned who are office-bearers of the petitioner-Union and other members of the said Union struck work in an illegal manner. No notice of demand or notice of strike was served on the management by the petitioner-Union before resorting to strike. A notice was pasted on the notice board informing the workers that they had illegally struck the work and they should resume their duties. The workers however did not resume the work in response to the said notice. The strike continued on 9th and 10th June, 1972. On 10-6-1972 at about 5-30 in the afternoon Dr. Banjamin came in a car which was being driven by Mr. William. The striking workers did not allow them to enter the gate. Thereafter a clash took place between the 2 sections of the workers. Police was also present on that occasion. Dr. Banjamin and Mrs. William were advised to go back. As a result of fight non striking workers were hurt. Dr. Banjamin filed a complaint about the incident to the Police. Dr. William further stated that on 9th June 1972 he was called to attend an7 8 9 emergency but there was strike. This doctor had advised the House Surgeon for procurement of blood for blood transfusion. He was told that the laboratory was locked closed. The employees in the laboratory were on strike. Consequently, he was referred to the Mayo Hospital. Mr. Muhammad Shaft, A. S.
1. Police Station Gulberg Lahore brought the original First Information. Report No, 310, dated 10th June 1912 recorded on the basis of the Poke received from Mr. Muhammad Aqil, S. I. Exh. RW II/I is the copy of tihis F. I. R. This witness, however, stated that on the basis of this F. I. R. Investigation was conducted and ultimately challans were submitted before the Court. The contents of Exh. RW II/I show that on 10-6-1972 at about 5-45 p.m. Non striking workers and some patients of the hospital came from inside at the gate and asked the strikers not to close the gate as the relatives of the patients and members of the staff were to enter the hospital. Thereupon the strikers declared that they would not allow Dr. Banjamin Adgar B. Ram and J. D. Gill to enter the hospital. Thereafter the strikers shouted at non strikers to get away from the gate. Immediately after this the strikers which included Samson Danial Siddique Gill Robert Dass Manual Dass Mukhtara James, Amanual Ashiq and Tahir attacked non-strikers with brickbats, stones and sticks. Non-strikers were unarmed. As result of the attack by strikers Zahid Abid, Sher Masih, Babu Lal and Anwer Din were injured and become unconscious. Subsequently they were admitted into the hospital. This is also an admitted fact that the workers concerned got themselves bailed out from the Court of Magistrate in the case based on the aforementioned F. I. R.
19. After a considered analysis of the evidence verbal as well as documentary led by the parties on the records of this case we have come to the conclusion that the workers who have been dismissed were responsible for illegal strike and indulged in disorderly and riotous activities which resulted in an ugly situation in an establishment like hospital. In this manner the conduct for which these workers have been punished is proved against them.
20. In the light of what has been said above, our findings on the propositions of law and fact on which the parties are at variance are as follows :-
(i) The petitioner-Union cannot be deemed to be illegally constituted body for the reason that by the time the present application was instituted most of its office-bearers were dismissed from service.
(ii) The present petition under section 25-A is not legally maintainable for the reason that the provisions of section 25-A (1) regarding service of grievance notice were not complied with by the petitioner-Union before filing the petition.
(iii) The United Christian Hospital is an industry within the meaning of the I. R.
0. But is not an Industrial or Commercial Establishment within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(iv) No independent enquiry as envisaged in Standing Order 15 of the Standing Orders Ordinance 1968 has been instituted before ordering the dismissal of the workers concerned but on merits it is amply proved that the said workers were guilty of the misconduct for which they have been dismissed.
21. In view of the above findings the application is dismissed. 1966 PLC 714 1974 PLC 274 PLD 1973 Kar. 1 1977 PLC 489 1974 PLC 252 1974 PLC 98 1963 PLC 4821 2 3 4 5 6 7