AWARD This appeal arises out of an award given by the learned Chairman of the West Pakistan Labour Court (Central Zone), Lahore on 16th of January 1970, in an industrial dispute filed by the General Secretary, Road Transport Employees' Union, Lahore (hereinafter called the Employees' Union), under section 5(5) of the Industrial Disputes Ordinance, 1959 (here-- in after called the Ordinance of 1959), on 28th October 1967.
2. The Employees' Union had raised an industrial dispute with the Road Transport Corporation, Lahore (hereinafter called the Corporation), against the dismissal of 36 workmen of the Corporation and after it had obtained a Failure Certificate on 15th September 1967, the General Secretary of the Employee's 'Union filed an application under section 5(5) of the Ordinance of 1959, on 28th October 1967, as already mentioned, for adjudication and determination of the dispute.
3. The learned Court on adjudication of the dispute awarded the re-instatement of all the 36 workers with "Full benefits of salaries or wages to which they were entitled as a result of their re- instatement".
4. The learned Labour Court ordered the re-instatement of the respondents mainly on the following grounds:--
(1) That the Enquiry Officer was a subordinate of the District Manager and, therefore, was incapable of displeasing him.
(2) That no opportunity was given- to these workmen of defending themselves against any allegation.
(3) That no evidence against them waste recorded in their presence.
(4) That no final show-cause notice against the proposed punishment was given to any of the workmen ; and
(5) That the appeals and revision petitions submitted by the workmen were dismissed summarily by the relevant authorities.
5. It will be useful to reproduce the conclusion of the learned Court. It runs as under:-- "I have reached the conclusion that the respondent's reply is highly evasive and unsubstantial inasmuch as it does contain the requisite detailed refutation of the facts and arguments asserted in the petitioner's application under consi--deration. It has been admitted by the respondent's own representative before me that no final show-cause notices were communicated to the 36 workmen before the orders regarding their dismissal or discharge were passed on behalf of the respondent. It is also an indisputable fact, apparent on the face of the relevant record, that no legal proper and just departmental enquiry into the charges against the 36 workmen was ever conducted by or on behalf of the respondent in this case."
6. The conclusion arrived at by the learned Court is toe general. In the absence of facts leading to the conclusion, I had to go through the entire record to satisfy myself as to whether the conclusions are justified,
7. There is no basis for the conclusion that the Enquiry Officer being subordinate to the District Manager could not give an independent finding. Generally, any officer, who is appoint-- ed to hold enquiry by the District Manager, is subordinate to him. This fact by itself is no ground for the conclusion that the Enquiry Officer will not act independently. The District Managers as a rule have no personal interest in the charges framed against the Driver's and Conductors. Of the 36 workmen, only 19 workmen appeared before the Court. I have gone through their statements. They have failed to make out any case of prejudice against the Enquiry Officers. I would hold that the conclusion of the learned Court that the Enquiry Officers were not independent persons is unwarranted.
7. There is no basis for the general conclusion that "no opportunities were given to these workmen of defending them-- selves against any allegations and no evidence against them was ever recorded in their presence." I will take the case of the respondent, Muhammad Aslam. Mr. Umer Hayat was 'the Enquiry Officer of the charges against Muhammad Aslam. He deposed in his examination-in-chief that he allowed Muhammad Aslam to produce his defence and to cross- examine-- the prosecution witnesses. The statement of the prosecution witnesses bear the signature of Muhammad Aslam. The witness was cross-examined at length. No question was put to Mr. Umer Hayat in cross-examination to suggest that he did not flow Muhammad Aslam to produce his defence or to cross-examine the prosecution witnesses similarly Mr. M. A. Khan was appointed Enquiry Officer against Bagh Hussain. He clearly deposed that he permitted Bagh Husain to cross-examine the prosecution witnesses, but he declined to produce defence. No question was put to Mr. M. A. Khan in the cross-examination to challenge his statement on these facts. It is not necessary to examine that statements of all the Enquiry Officer to show that the remark of the learned Court is too general that the workmen were not allowed to defend themselves and that no evidence was recorded in their pretence.
8. I have gone through the record and hold that the grounds 1, 2 and 3, mentioned in para. 4 above, are not borne out by the evidence on the record.
9. I would now proceed to consider the contention of Mr: Qureshi Muhammad Hafeez, the learned Advocate for the respondent, that the appeal is time-barred.
10. The contention of the learned Advocate is based on subsection (3) of section 37 of the industrial Relations Ordinance, 1969 (hereinafter called the Ordinance). It reads as under- "(3) Any party aggrieved by an award given under sub--section (1) may prefer an appeal to the Labour Appellate Tribunal within thirty days of the delivery thereof and the decision of the Tribunal in such appeal shall be final."
11. The admitted position is that section 5 of the Limita--tion Act has not been made applicable to the Ordinance. The award was given on 16th January 1970, and the appeal was filed on 5th March 1970. On the face of it, it .is submitted, the appeal is time-barred unless the time taken in obtaining the copy of the award is excluded. The learned Advocate contended that the time taken for obtaining a copy of the award cannot be excluded as under the provisions of the Ordinance it was not necessary to file the copy of the award reliance was placed on certain decisions of the High Court. It is not necessary to refer to these decisions in view of the authority of the Supreme Court of Pakistan in the case of Tahir All arid others v. Chief Judge Karachi Small Causes Court (PLD 1963 SC 147). It will be useful to reproduce the relevant observation of the Supreme Court runs as under "Lastly it was contended that subsection (1) of section 15 of the Act did not require that the application should be accompanied by a copy of the judgment and order and there--fore the exclusion provided by section 12(2) did not apply.
A similar question arose in Jijihboy N. Surti v. T. S. Chettyar AIR 1928 P C 103, and it was held that in reckoning the time for presenting an application, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it was not necessary to obtain such copies. For the reasons given in. the above case we are also unable to uphold 'this contention of the respondents."
12. 1 would respectfully rely oh the above observation o the Supreme Court of Pakistan and hold that section 12(2) of B T the Limitation Act is applicable to an appeal filed under section 37(3) of the Ordinance.
13. After hearing the learned Advocates, Mr. Bashir Ahmad, for the appellant and Mr. Qureshi Muhammad Hafeez for the 1, respondent, I went through the record of the case. The appeal against some of the respondents must be allowed. The Court could adjudicate only if there was an industrial dispute and the same related to a workman.
14. It was submitted as against respondents Muhammad, Jaffar, Riaz Ahmad and Manzoor Ahmad that it was not a case of "non-employment", which could constitute an industrial dispute. The services of Muhammad Jaffar were terminated on 21st July 1962, while that of Riaz Ahmad on 30th August 1962, and that of Manzoor Ahmad on 4th June 1963. It would appear from the statement of the General Secretary of the Union, Mr. Bashir Ahmad (P. W. 21), that the Union gave the first strike- notice on 31st December 1965. An industrial dispute on the basis of the demands mentioned in the notice was filed in 1966, but the same was withdrawn with permission to file a fresh application. A fresh strike notice was given on 31st of August 1967, which resulted in the industrial dispute giving rise to the present appeal. Of the three persons, Muhammad Jaffar and Manzoor Ahmad did not even appear before the Court. Only Riaz Ahmad appeared before the Court as P. W.
9. He admitted before the Court that he did not make an application under section 31 of the Ordinance of 1959, nor any dispute was raised on his behalf, except the one giving rise to the present appeal. There is a delay of 2 years. In the absence of any, explanation on their part, it can be reasonably presumed that they had accepted the orders termi--nating their services. An industrial dispute in respect of re-instatement of workmen must be raised within a reasonable time, so that the employer of the workmen who are re-instated, is not prejudiced and so that workmen who have taken the place of the dismissed workmen are not turned out for no default of theirs. If the delay in raising the industrial dispute is too much, the workmen, who have replaced the dismissed workmen, may have become permanent. It will not be easy for the employer to terminate the services of permanent workmen. If they do so, this may lead to further industrial dispute. In this connection, it would be useful to' reproduce, a few lines from the observation made by Cornelius, C. J., in Karnaphully Paper Mills Limited v. Workers' Union (PLC 1961 SC 329). The relevant observation runs as under:- "The Tribunal thought that because there has been no written charge-sheet produced in the case, Maqbul Ahmad should be re-instated. We consider that his case falls under the principle which we have to-day enunciated in. our judg--ment in the case of the British Exchange Banks (C. A. No. 35- D of 1959), namely, that unless the discharge be proxi--mately connected with the main subject- matter of the dispute either by direct nexus, or at the very least by proximity of time, it will not result in a `non-employment' so as to constitute an Industrial dispute. The discharge of Maqbul Ahmad appears to us in the circumstances to be clearly not a case of non-employment qua the dispute which arose in the present case in November, 1957, that is two years after his discharge."
15. Their Lordships of the Supreme Court considered even the delay of two years to be sufficient to come to the conclusion that it was not a case of "non-employment". In the case of Manzoor Ahmad there is a delay of 2J years and in the case of other two persons, a delay of 31 years. It seems to me that these three persons were satisfied with the order passed by the appellant. The Union cannot be permitted to take up the case of a workman, who himself is satisfied with the order passed by his superiors, after such a long delay. The employer will be very much prejudiced, if he has, as a result of re-instatement of certain workmen dismissed long ago, to terminate the services of permanent workmen, which eventually will lead to another industrial dispute. I would in these circumstances allow the appeal in respect of respondents, Manzoor Ahmad, Muhammad Jaffar and Riaz Ahmad.
16. The respondent, Gulzar Ahmad (P. W. 18), in his examination-in-chief, stated as under:- Since I was a member of Supervisory Staff, the Management resented that I would become a member of our Union."
17. He stated in cross-examination as under:- "Since the Management does not consider me to be a workman, I had filed a writ petition against my termination in the High Court. It is still pending."
18. The short question is as to whether Gulzar Ahmad can be said to be a workman within the definition of "workman" given under the West Pakistan Industrial Disputes Ordinance, 1968. Under the definition given under section 2(u), a person cannot be said to be a workman who is employed in a managerial or administrative capacity. Gulzar Ahmad was an Inspector at the time his services were terminated and was admittedly, a member of Supervisory Staff. Gulzar Ahmad has not stated anything in his statement before the Court, so as to explain that he was not employed in a managerial or admi--nistrative capacity. I would hold that Gulzar Ahmad was not a workman.
The appeal against Gulzar Ahmad is allowed.
19. Conductor, Abdul Rehman, was charge-sheeted, as. would appear from Exh. P-47, as under:- "It has been reported by A. T. M. (R.) vide his Tour Note dated 5-5-1964, that 27 passengers were found travelling without tickets from Hospital to Regal, 5rd. Xing and Jail Road for Q-Gulberg. The fare was not collected by you from them. On counting your cash it was found short by Rs. 12.56.
20. Under the Road Transport Workers Ordinance, 1961, (hereinafter called the Ordinance of 1961), under section 7(2)(1), a workman can be held to be guilty of misconduct only if he is t guilty of habitual negligence or neglect of work.
21. I have held in a number of cases, following the decision of Wahiduddin, J., that habitual qualifies both negligence and neglect of work. The fact disclosed in the charge-sheet do not make out that he was charged for habitually neglect--ing his work. He could not, therefore, be held to be guilty of misconduct On the face of it, the finding of misconduct against Abdul Rehman, is perverse. The appeal against Abdul Rehman is dismissed., Abdul Rehman will be entitled to re--instatement with full back benefits.
22. So far as the rest of the respondents are concerned, I agree with the learned Labour Court that they could not be dismissed from service without the appellant complying pith the old practice of giving them a second show-cause notice against the proposed punishment and giving them a copy of the Enquiry Officer's Report. I have already give detailed reasons for holding that the workers serving in the Road Transport Corporation, are entitled to a second show cause notice and also to a copy of the-Enquiry Officer's Report, in the case of Road Transport Corporation v.
Muhammad Aslam and others Appeal No. LHR-6 of 1970, dated 20th May 1970.
23. The next question that requires consideration is as to whether the order as regards to "back benefits" on the re-instatement of the respondents should be maintained. These respondents have been re-instated on the ground that there was defect in the enquiry, inasmuch as they were not given a second show-cause notice and, a copy of the Enquiry Officer's Report, In this connection, I may also observe that the principle of natural justice requires that the workman, who file appeals or revisions, must be given a hearing by the authority concerned. A date should be fixed for hearing of the appeals or revisions and the workmen, should be so intimated. If they want to appear and be heard personally, they should be given an oppor--tunity by the Appellate Authority to be heard. In some cases, it is stated by the respondents, that no hearing was given by the Appellate Authority or Revisional Authority. In future the Appellate and the Revisional Authority should always comply with the requirement of, principle of natural justice by giving the workmen an opportunity of personal hearing. I have given my reasons in the case already noted above as to why these respondents who are being re-instated because of some defect in the enquiry, are not entitled to back benefits, which will depend upon the result of the enquiry, the appeal or revision. If the competent authority after complying with the defect does not find that a case of misconduct is made out against any worker, he will be entitled to full back benefits. On the other hand, if the relevant authority holds a case of misconduct is made out the respondent will not be entitled to any back benefits. The respondents in whose favour the order of the Labour Court for re-instatement is maintained would, however, be entitled to Rs. 150.00 as costs. The cost must be paid by the appellant within 10 days of this order to either of the learned representatives of the respondents, namely, Mirza Nazir Ahmad Naz or Mr. Qureshi Muhammad Hafeez. If the Representatives are not available, the cost should be deposited in the Labour Court (Central Zone), Lahore, within the period mentioned above.
24. In the result, the appeal against Manzoor Ahmad, Muhammad Jaffar, Riaz Ahmad and Gulzar Ahmad is allowed. The order of the learned Labour Court against the rest of the respondents, except Abdul Rehman, is modified to the extent that they would be re-instated, but would not be entitled to any back benefits, which will depend upon the result of the enquiry to be held by the appellant after removing the defects in respect of second show-cause notice, the Enquiry Officer's Report and an opportunity to be heard at the time of appeal or revision, but they will receive Rs.
150.00 each as costs from .the appellant. The order against Abdul/Rehman is maintained. He would be entitled to frill back benefits but not to any cost. The cost to be paid to them who are being re- instated, except Abdul Rehman, within 10 days from this order or deposited in the West Pakistan Labour Court (Central Zone), Lahore. The respondents or their Representatives can withdraw the same