RICE EXPORT CORPORATION OF PAKISTAN (PVT.) LIMITED, KARACHI Versus GHULAM MUSTAFA D. BALOCH

DECISION

This is a Revision Application under section 38 (3-a) of I.R.O., 1969, invoking the suo motu revisional jurisdiction of this Tribunal with the prayer to call for record and proceedings of Application No. 49 of 1991, pending before the learned Labour Court No. V at Karachi, and to examine the legality, propriety and correctness of the order, dated 20-5-1991, passed by the learned Labour Court in the said Application.

2. I have heard Mr. Muhammad Tasnim, learned Advocate for the applicants/Informants and Mr. M.L. Shahani, learned counsel for the respondent and have also gone through the record and proceedings of the case.

3. The facts leading to these proceedings are that the respondent was admittedly a workman working with the applicants when on 11-12-1990, he was charge-sheeted for certain acts of misconduct committed by him in October, 1990 and domestic enquiry was ordered to be held. During the pendency of the enquiry, the applicant filed grievance application before the learned Labour Court wherein he prayed as under:--

"It is respectfully prayed that this Honourable Court may be pleased to declare and hold that the charge-sheet on the basis of the allegations contained therein is not a misconduct under the Standing Orders Ordinance and is also time-barred, therefore, no valid enquiry or any order of punishment could be based thereon.

Grant ad interim relief as attached application.

Any other relief as the circumstances may warrant and this Honourable Court may deem fit."

Alongwith this grievance application he also moved Application under section 151, C.P.C. read with section 36(2) of I.R.O., 1969 wherein he prayed that the Labour Court be pleased to stay the proceedings of departmental enquiry against the petitioner pending disposal of main application, more particularly direct the respondents not to take any adverse action or pass any adverse orders against the petitioner'. Notice was issued on this application to the applicants and it was fixed for hearing on 18-5-1991. The notice of the application appears to have been served upon the applicants on 12-5-1991 but on 14-5-1991 the applicants passed an order dismissing the respondent from service. On 16-5-1991 the respondent filed another Application under section 151, C.P.C. wherein he alleged that he had reliably learnt that after the receipt of notice of previous Stay Application, the respondents have dismissed the petitioner from service vide order, dated 1.4-5-1991 though the order had not yet been received by him. He, therefore, prayed the Court to stay the operation of the dismissal order, if any, issued by the respondents till such time the case is heard by the Court. The applicants filed Counter-Affidavit of Kamil Saeed Khan stating that dismissal order was sent through corrier service and registered post on the address of the respondent. He has produced such receipts.

4. The main contention of Mr. Muhammad Tasnim is that after issuance of dismissal order, the previous application had become infructuous and the learned Labour Court could not pass any interim order ordering reinstatement of the respondent. The learned Labour Court, in the impugned order, allowed the application of the respondent and directed that operation of order, dated 14-5-1991 be suspended till further orders. It may be pertinent to note that in the impugned order, the learned Labour Court had not directed the reinstatement of the respondent, but admittedly after above order, the applicants allowed the respondent to resume service. Mr. Muhammad Tasnim had relied upon the decision of this Tribunal in the case of Habib Bank Limited v. Anwarul Haq Qureshi 1985 PLC 298. In the reported case the workman was dismissed from service on 24-10-1982. He first sought relief by filing Civil Suit before Civil Court. After dismissal of Civil Suit on 30-1-1984, he filed grievance application before the learned Labour Court, wherein the Labour Court ordered his reinstatement by way of interim relief. This Tribunal held that the Labour Court could not have passed interim order either restraining the employer from terminating the services of the employee and directing him to put back his removed employee pending disposal of the main application. It was further observed by this Tribunal that the relief granted did the workman in his application for interim relief ask much beyond the scope of the relief for. However in the instant case the respondent had challenged the validity of the proceedings and had prayed the Court in the application to hold all the enquiry proceedings to be invalid and that no order of punishment could be passed on the basis of such enquiry. He also moved an application for stay the proceedings of the departmental enquiry and A for direction to applicants not to take any adverse action or pass any adverse orders. However, the order of dismissal was passed after the service of notice of this application. The impugned order of learned Labour Court staying the operation of the order, dated 14-5-1991 cannot, therefore, be said to be beyond the scope of the relief claimed in the main application or beyond the relief claimed in the interim application.

5. It is also contended by Mr. M.L. Shahani that the termination order was passed by the applicants in hot haste immediately after receipt of the notice of the application from the Court and, therefore, it showed that the order was passed with mala fide intention/purpose and such mala fide order was nullity in the eyes of law, therefore, the Labour Court could validly grant interim relief against such mala fide order..

6. It is also contended that under section 47 of I.R.O., 1969, no employer could alter to the disadvantage of any workman concerned in Industrial Dispute pending in Labour Court, the conditions of service applicable to him. It is conceded that the grievance application is not an Industrial Dispute as defined under the I.R.O. but it is contended that under section 25-A(4) the Labour Court has to decide the matter as if it was an industrial dispute. It is further argued, that law would not contemplate any discrimination between workers who are concerned with the industrial dispute raised by the union and the workman who is concerned in the individual grievance application, which is also to be decided by Labour Court as industrial dispute.

7. As for merits of the case the learned Labour Court had tentatively held:-

"Even on merits, I find that prima facie the applicant has made out a good arguable case in his favour. The alleged show-cause notice is silent regarding the name of informant, time and place where this incident took place and the fact that for which candidate the applicant canvassed is also missing from the statement of allegation served on the applicant by the respondent-Corporation vide Annexure `A' to the grievance petition."

8. It is argued by Mr. M.L. Shahani that under Standing Order 15(4) no workman can be removed unless the alleged act of misconduct is brought to the notice of the workman concerned in writing within thirty days of the commission of the alleged act or of the date on which alleged misconduct comes to the notice of the employer lie further contends that the charge-sheet is dated 11-12-1990, where the respondent was charged with misconduct on the basis of statement of allegation attached. The statement of allegation alleged that he committed certain acts of misconduct in October, 1990. It is contended that charge sheet was prima facie beyond the period of thirty days as prescribed under Standing Order 15(4) and also it did not show that act of misconduct had come to the knowledge of the employer within thirty days from the date of the charge -sheet. Reliance is placed upon the decision of Hon'ble Supreme Court in the case of Malik Khawaja Muhammad and others v. Marduman Babur Kohal and others 1987 SCMR 1543 wherein their Lordships have said that `decree in a suit passed in utter contravention of mandatory provisions of law was nullity in the eyes of law.' He contends that this order of dismissal prima facie was passed in contravention of mandatory provisions of law i.e. Standing Order 15(4) and was, therefore, nullity in the eyes of law and could not prevent the learned Labour Court from giving the relief sought, which was in terms of the prayer contained in the main grievance application and the application for interim relief.

9. Considering all the above facts and law and the fact that the respondent is continuing in service of the applicants, I do not find it proper and just to reverse the impugned order at this stage. Revision Application is, therefore, dismissed but the learned Labour Court is directed to dispose of the matter as early as possible, unprejudiced by any observations in this order, which are of tentative nature.

H.B.T./1982/Lb. S Revision dismissed.