MUHAMMAD ISHAQ Versus M/S SHEZ N INTERNATIONAL LTD
ORDER
In this matter a/s 25‑A of the Industrial Relations Ordinance for the redress of the grievance, Mr. Muhammad Zaib, the employee affected, has challenged the termination from the employment of the Airport Motel as illegal, and based on the victimization by the respondent Managing Director, whose name is not mentioned, but obviously refers to the management concerned.
2. Mr. Zaib was appointed as a helper, in the year 1973. He earned the promotion as General Assistant in 1976. He held the position of the President of Peoples Workers Union. During his tenure he was given letters of appreciation by the Managing Director, for his good performance.
3. On 4‑11‑1986 he was given the notice of show cause under the provisions of Standing Order 15 known as West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, complaining that at 1.45 hours, he was found by the management in the dining hall with two guests, which was misconduct, liable to explanation.
4. Mr. Zaib offerred the explanation, he denied the charge most strongly.
5. Despite that explanation, no enquiry was held into the misconduct. His services were terminated, what he calls mala fide intention due to trade union activities.
6.Respondent has raised the Legal Objection of the non‑maintainability of the application with more emphasis on this legal aspect that section 25‑A is a procedural provision. It does not guarantee any right of service. Respondent has also raised this factual contention that he was working in Supervisory post in the cadre of porter and drawing the wages of 1829. His termination was simple termination in accordance with Standing Order 12.
REASONS:
(1) Mr. Wasi Ahmed counsel for the respondent, while the matter was subjudice raised the point of legal importance that applicant has ceased to be worker for the purpose of remedy a/s 25‑A of the I.R.0. therefore, the application is not maintainable. The Court by its very brief order disposed off his contention that this objection of the maintainability can be decided at the time of final decision. At the time when the objection was raised the question was of the fact and legal aspect, and therefore, the Court on suitability within its own judgment to decide this aspect at the time of the final decision. If the Court was satisfied that the jurisdiction did not exist, the objection of Mr. Wasi Ahmed would have substance.
(2) Mr. Wasi Ahmad was not satisfied with this order, and went before the Honourable Appellate Tribunal. His Lordship also directed that Mr. Wasi Ahmad can argue its preliminary objection at the time of the final disposal of the matter before Labour Court.
7. Mr. Wasi Ahmed went in Constitutional Petition. My Lords the Honourable Judges of the High Court dismissed the petition, and made observations which Court respectfully refers:
"The Labour Court dismissed the application by its order dated 31‑1‑1987, with the observation that the objection had no legal merit. However, the Presiding Officer also observed that the objection can still be decided at the time of final decision. Since there was observation on merit, therefore, the petitioner moved the Labour Appellate Tribunal, but the Appellate Tribunal also dismissed the revision by order dated 4‑3‑1987 with the observation that the counsel may argue the matter at the time of the final disposal before the Labour Court."
8. His lordships made further observation which Court respectfully refers.
"Even if there was any observation on merit by the Labour Court in respect of the objection made by the petitioner, effect of the same has been washed away by the observation by the Sind Labour Appellate Tribunal. The matter is now open before the Labour Court and the petitioner can urge the legal and factual aspect before the Labour Court "
9. After this order Mr. Wasi Ahmed was asked to proceed with the case that the objection will be taken up at any stage. From the reading of the order of my lord the Honourable Judges of the High Court Mr. Wasi Ahmed insisted that this objection be heard before the commencement of the evidence. Mr. Wasi Ahmed was informed that earlier order of the Labour Court was decided on the merits by brief statement but at the same time it was qualified that Mr. Wasi Ahmed can argue the matter at the time of final disposal. It is in that context his lordships have also held that if there was observation of merit, the effect of the same has been washed away by the observation made by the Sind Labour Appellate Tribunal. Mr. Wasi Ahmed therefore was advised what the Court finds proper at particular stage he can argue the matter. The anxiety of the court was that certain factual aspects have co‑relation with the points of jurisdictional controversy. The view taken by Barrister Muhammad Jamil was also to this effect that the Labour Court has also the jurisdiction under the provisions of Standing Order 15 to decide this aspect.
10. The Court was also anxious to consider these aspects at the time of final decision, if was satisfied that the jurisdiction exclusively vested of the highest Court the issue would have been decided in that legal perspective.
11. What the Court has gathered the impression that Mr. Wasi Ahmed was simply to prolong the matter, instead of achieving the finality of the disposal of the summary petition of section 25‑A. However he cross‑examined the statement of Mr. Zaib and the matter was adjourned to the recording of the evidence of the respondent which he also took the choice of the date, and has remained absent to proceed with the matter. Mr. Muhammad Jamil, had long patience to wait for him, and finally the Court within its jurisdiction closed the side of the respondent and announcing the order.
12. On the merits of the jurisdiction and the applicability of section 25‑A of the provision of Industrial Relations Ordinance whether applicant Mr. Muhammad Zaib can come before the Labour Court, the Court first refers the definition of the worker for the purpose of Industrial Relations Ordinance. It reads that any person not falling within the definition of employer who is employed (including employment as a supervisor or apprentice) in an establishment or industry for hire or reward either directly or through contract whether the terms of employment be expressed or implied and for the purpose of any proceeding under this Ordinance in relation to Industrial Dispute includes such person who has been dismissed, discharged, retrenched or otherwise removed from employment in connection with or as consequence with the dispute whose dismissal, discharge, or removal or retrenchment has led to that dispute ........
13. This is also the definition of workman for the purpose of the provision of industrial Relations Ordinance.
14. For the purpose of the provisions of Standing Orders, Ordinance, the workman means any person employed in any industrial or commercial establishment to do skilled or unskilled manual or clerical work for hire or reward.
15.Standing Order 12 further reads that for terminating the employment of a permanent workman on any reason other than misconduct, one month's notice shall be given either by the employer or the workman .........
16. In respect of the termination of the employment under the provisions of the Standing Orders Ordinance which is applicable to the workman, as in the case of Muhammad Zaib, the forum to vindicate the grievance a/s 25‑A of the Industrial Relations Ordinance has suggested the remedy in subsection (3) of Standing Order 12 itself where the terms and conditions of the permanent workman who are doing the skilled or unskilled work is also provided. What subsection (3) reads that in case a workman is aggrieved by the termination of services or removal, retrenchment, discharge or dismissal he may take action in accordance with provisions of section 25‑A of the E I.R.0 and thereupon the provisions of the said section shall apply as they apply to the redress of individual grievance. To put it simply, the aggrieved workman can take action which will be in accordance with the provisions of section 25‑A. Those will apply to the same way in respect of the grievance under I.R.O. as it applies in respect of grievance under Standing Orders. Mr. Wasi Ahmed has referred in the memo of its arguments certain striking features of the legal interest by reference to subsections (1) and (2) of legal significance. He has referred to the subsection (1) to show that worker must bring his grievance in the manner grievance is required to be brought to the notice of the employer. Either the grievance may be brought by the worker himself or it may be brought through shop steward. Likewise it entitles the worker under subsection (4) to bring the grievance petition either himself or through shop steward. He has also emphasized that the word worker must be in conformity with the definition of the term in the I.R.O. His line of direction is that definition of the term workman will not be applicable of the Standing Orders Ordinance. In other words taking the definition of the worker he has stretched the definition of a worker in subsection (2) (clause xxxviii), to contend that the worker or employee upon termination of his employment ceases to be worker under the I.R.O. and therefore he cannot adopt the procedure contemplated by section 25‑A. But at the same time he is also of the view that terminated workers have not been deprived of the right of remedy, but contends that only he can come through Collective Bargaining Agent.
17. In the first place this position has been made much more clear in subsection (3) of section 12 that the aggrieved employee can take action a/s 25‑A for the redress of the grievance, in the same way as the worker follows his remedy a/s 25‑A in respect of the proceedings under the I.R.O. More prominently, it appears that both have the remedies under the I.R.O. and under the provisions of Standing E Orders as the nature of the case may be. Briefly to put it that if there is a dismissal in connection with or as a consequence of that dispute. The dispute referred in the context of the Industrial Dispute shall be taken cognizance, whether be by individual worker or by the large number of workers if affected by the dispute. It is therefore in the view of the Labour Court what the Court understands from the language it follows that if the individual worker wants to challenge the action it can send the notice through himself. If the number of workers they can come through Collective Bargaining are large but if subsection (3) of section 25‑A is read in the manner that worker can bring his grievance to the notice of his employee, through Collective Bargaining Agent there is no legal restriction.
18. Similarly in the case of the redress of grievance by the workman to challenge the termination under Standing Order 12 and the same remedy provided a/s 25‑A the workman can also serve the notice as provided in subsections (1) and (2) of section 25‑A. Further 25‑A in subsection (9) has made much more clear that section shall be prosecuted under subsection (8) except on complaint ho person (a) by the workman if the order or decision in his favour In writing implemented. In other words the obvious object appears is not even if the workman as understood under provisions of o be that under the provisions of the Standing Orders persues the I.R.O. or IC also applies to the workman if the word expressly work .emedy, it given in subsections (1), (2) and (3) but found expressly is not subsection (3) of Standing Order 12. Standing Orders Oridance relates to the Industrial Employment. But I.R.O. relates Ordinance range of relationship namely the formation of trade urn, the wide regulation of relations between employer and workmen and the avoidance and the settlement of any differences between them. Here also the word is used.
19. The objection of Mr. Wasi Ahmad therefore that notice be brought through Collective Bargaining Agent and not by the worker himself is not tenable. Further, to contend that worker cases to be worker after dismissal or termination. The Labour Court as it understands is of the view that if the worker or work as it remedy a/s 25‑A in respect of any right secured or guaman has a or under any law the dismissal or termination may be considered the employer as a dismissal but till the Labour Court or any other by highest authority provided in the Appellate forum has not confirmed the dismissal as rightful dismissal he does not ceases to be Worker in the eyes of law, because the remedy provided under section 25-A in respect of the challenge of his right is equally his right both under the I . R.O. or under the provisions of Standing Orders Ordinance till the competent Court of law has decided about the terms and of his job. If the dismissal or termination is held illegal or he is reinstated with all the back benefits reverting to wrongful same position he occupies or if his dismissal is held to be just a proper he ceases to be worker from the date he was dismissed.
20. In the view of the Labour Court the application is competent.
21. The second aspect is of jurisdiction. Mr. Wasi Ahmed contended that Labour Court has no jurisdiction. In this 'me has management gave notice of show cause for taking action case the provisions of Standing Order 15 but subsequently after receiving the explanation effected simple termination of Mr. Zaib.
22. Firstly, if the charge against the applicant was that he was found with the guests in the dining hall and committed misconduct the employer had no jurisdiction but to proceed under the sections of Standing Order 15 to inform the permanent employee whether he is guilty of misconduct which was not done.
23. It is also accepted legal position that employer has also, jurisdiction to terminate the employment of a permanent workman under Standing Order 12. There is no clog on his powers. But if the termination is challenged, the employer is under obligation to satisfy the Labour Court as to the propriety of his order that what action he took to terminate the employment of a permanent workman was simple termination in good faith and had no taint of mala fide. It ice, true that the burden of the proof of the fact of mala fide is on the person who alleged. Mr. Zaib has clearly stated that he was victimized due to lawful trade union activities. This is confirmed from the circumstances itself that if the employer took the choice to exercise its jurisdiction under the provisions of Standing Orders regarding acts and omission of the employee but subsequently changed his minus and effected termination which was clearly mala fide evident from the circumstance.
24. Respondent also produced no evidence to rebut this allegation by going through confrontation in the judicial process of cross‑examination.
25. Mr. Wasi Ahmed has contended that if he has claimed that he was victimized of the trade union activities and therefore the jurisdiction is not vested in the Labour Court. In the first place the unfair labour practice as the Labour Court understands is in respect of those practices by which large number of workers have been affected. This is individual grievance of which he has given the background to plead as a defence against the charge of which he was said to have committed misconduct. If the jurisdiction was assumed by the decisive step initially taken under the disciplinary process the applicant having pleaded the defence has rightfully assumed the Labour Court's jurisdiction for the redress of his lawful grievance.
26. Mr. Wasi Ahmed has also touched another legal aspect in reply to the petition that the position of Mr. Muhammad Zaib, by designation as General Assistant was of supervisory nature because he was drawing the emoluments of Rs.1,829.
27. There are two aspects of the matter, Mr. Wasi Ahmed has produced no evidence by referring to the chart of the functions which applicant was expected to perform showing the higher position of supervisory or managerial nature. Secondly there is not the least indication from the evidence recorded and cross‑examined by Mr. Wasi Ahmed to show that he was holding the position of supervisory nature. The questions have been suggested to the witness of very guarded nature. For example, it is asked whether the post of General Assistant has been abolished. The witness has shown ignorance of the fact of that particular job of abolition. The next question has followed which is replied in this manner.
"I was in Front Section and was appointed as General Assistant. I do not know who is the General Assistant after my termination."
Beyond these suggestions no further improvement is made by the respondent's counsel to show that Mr. Zaib was holding a position of higher responsibilities than the position of a clerk or clerical nature. Mr. Wasi Ahmed may have raised this contention in light of the definition of the employer under the I.R.O. But the facts of the case suggest that the position of the applicant Mr. Zaib was that of workman to which all the provisions of Standing Orders Ordinance were applicable and what is defined in the Standing Orders as to the status he held. The definition of employer in the Standing Orders Ordinance stands differently from the definition of the I.R.O. to its legal application. Sections (3) and (4) of the Standing Orders determine the condition of the employment of the workman, therefore, the provisions of Standing Order regarding rights and remedies are enforced through forum under section 25‑A, I.R.O. of which Standing Order 12, rule 3 suggests the forum of section 25‑A .
28. In the result the order of termination is clearly mala fide anal set aside. The proper course was to have proceeded against the applicant under the provisions of Standing Order 15 and to intimates him, whether his conduct deserved the removal, or dismissal or and order passed in the circumstances. Since this course of enquiry was not followed, any loss done to the workman who has certain rights) under law is to be compensated by re‑instatement and all the lawful dues as if he was in the same position.
29. The Court also further points out that respondent did not appear to lead the evidence. No further improvement would have been made, when basically this is an admitted position that having followed the disciplinary action they changed the course of action of termination which was mala fide. They have not denied that position that disciplinary action was contemplated but subsequently withdrawn and wrong interpretation put which is self‑explanatory from the document itself .
30. The Court also further adds that when the legal objection was raised the Court was anxious to dispose off this objection, but Mr. Wasi Ahmed had no patience to follow the Court's directions but was resisting the Court's directions, what the Court found just and proper.
31. Mr. Wasi Ahmed has also referred number of judicial authorities some unreported and more particularly of 1977 Supreme Court Monthly Review on page 102, 1985 P L C 738 and the 1986 P L C 139 of the honourable Appellate Tribunal, 1986 P L C 1145, 1986 P L C 769, some decisions of the Second Sind Labour Court, P L J 1975 Karachi 59, decision of the Baluchistan High Court, for reference. These are in the context of different facts.
32. Application is allowed with back benefits.
M . Y . H . /982/ Lb. S Petition allowed.