LAL KHAN vs PUNJAB LABOUR APPELLATE TRIBUNAL and another

ORDER

' MAMOON KAZI, J.---The petitioner was working as Security Guard with respondent No,2 when on 24-8-1985, he was charged with misconduct for having slapped and abused a co-worker in the said establishment.

2. The petitioner filed his grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, before the Labour Court which allowed the petition and ordered reinstatement of the petitioner in service with back benefits. However, on an appeal filed before the Labour Appellate Tribunal the order passed by the Labour Court was reversed and the petition was dismissed. The petitioner filed a Constitutional petition before the Lahore High Court which was also dismissed by a learned Single Judge of the said Court vide judgment dated 29-114994 and the order passed by the Tribunal was upheld and hence this petition for leave to appeal.

3. The only contention raised before us is that the order of dismissal of the petitioner from service as well as the order of appointment of Inquiry Officer to hold inquiry against him could only have been passed by the Factory Manager and not by the Manager Personnel and Administration of respondent No,2 and therefore, the inquiry proceedings as well as the order of dismissal were without lawful authority and hence void.

4. The learned Judge of the High Court while dealing with the similar contention of the learned counsel for the petitioner repelled the same thus: "I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. The power of attorney clearly shows that Board of Directors had authorized Manager P & A to appoint Inquiry Officer and also to pass an order of dismissal from service. A photostat copy of the order of dismissal from service passed against the petitioner further shows that it has the approval of the Factory Manager. The definition of the "employer" as given in section 2(c) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, also includes the persons responsible to the owner for the supervision and control of the establishment as well. Manager P & A is definitely a person who is responsible for the supervision and control of the establishment. Therefore, even otherwise, he does fall within the definition of `employer'. The controversy also appears to be academic in nature for the reasons that the grievance notice was served by the petitioner himself upon Manager P & A. Similarly, petition under section 25-A was filed against him and the same is the position with this Constitutional petition.

Therefore, the petitioner himself admitted and treated Manager P & A as an "employer" cannot be allowed to wriggle out of the same and raise a plea in this Constitutional petition to the effect that the Manager P & A was not a person competent to appoint the Inquiry Officer."

5. It may be pointed out that the contention raised by the learned counsel for the petitioner is completely misconceived. The term "employer" has been defined by section 2(c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as under:-- "employer' means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes--

(i) in a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory;

(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the department;

(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment."

' Clause (4) of Standing Order 15 which is also relevant to the controversy provides as follows:- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman: ' Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."

Clause (4) indicates that no order of dismissal against a workman shall be made unless the workman is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The said clause further indicates that approval of the employer shall be required in every case of dismissal. It also indicates that the employer shall institute independent inquiry before dealing with any charges against a workman. The definition of the term "employer" indicates that the person referred to as employer in the said definition may either be the owner of the establishment itself or in case of a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934, as the Manager of the Factory.

The definition of the word "employer" is a comprehensive definition and it also extends to establishment other than a factory but since in the present case the establishment concerned was a factory, reference to other clauses in the said definition is not necessary. In the present case, there appears to be no controversy in regard to the fact that the Directors of the said establishment had executed a power of attorney in favour of the Manager, Personnel and Administration authorizing him to pass an order of dismissal or removal of a workman from the said establishment or to appoint an inquiry officer to conduct an inquiry against him in case of a misconduct. Such authority to the Manager Personnel and Administration was therefore given by the owner of the factory itself which was the Board of Directors in the present case. Learned counsel for the petitioner has nevertheless argued that as indicated by clause (4) of Standing Order 15, at least approval of the employer would be necessary before any such action is taken against a workman. Although the learned counsel is right but in the present case there is nothing to indicate that such approval was not given by the Board of Directors in regard to the action taken against the petitioner. The presumption on the contrary would be that the petitioner had been removed from service with the approval of such Board of Directors. Nothing can be spelt out from the language employed by the Legislature ;n clause (4) of the Standing Order 15 to indicate that such approval must be in writing. It is also pertinent to point out that clause (4) does not indicate tint the inquiry officer who conducts an inquiry against such workman must be appointed under the order of the employer himself. Even the order of dismissal of a workman is not required to be passed by the employer himself. All that is required by the said clause is approval of the employer before dismissal of a workman and as we have pointed out earlier, the petitioner has failed to establish before us that such approval was not granted by the employer in the present case.

6. In the result, the petition is completely devoid of force and the same is, therefore, dismissed and leave to appeal is refused.