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Appeal No. KAR‑241 of 1969, decided on 23rd December 1969.
---S. 38‑Dismissal without any misconduct‑Application under S. 38 maintainable.
The workman had been dismissed without any misconduct arid the Industrial Court, on an application under section 38, West Pakistan Industrial Disputes Ordinance ordered re‑instatement. It was contended that since the workman had not been dismissed due to misconduct connected with any pending industrial dispute the Management was free to dismiss him and there being no violation of section 37 of the Ordinance application under section 38 was not maintainable;
Held, this is not what is envisaged by section 37 of the Ordinance. The Management could deal with the workman by discharging or dismissing him from service only if the workman had committed some misconduct. If be had not committed any misconduct the service of the workman could not be terminated. It is open to the workman to make an application under section 38 of the Ordinance, where he has been dismissed without having committed any misconduct
----S. 38 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1568), S. O. 18(b)‑Dis missal without any misconduct ‑ Maintainability of application under S. 38‑Mere fact that workman did not make application against such dismissal under S. O. 18(b), West Pakistan Indus trial and Commercial Employment (Standing Orders) Ordinance, 1968‑Does not deprive him of his right of application under S. 38.
Masood Mirza for Appellants.
A. Majeed for Respondent No. 1.
Date of hearing: 23rd December 1969.
This is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance), against an order dated 25th October 1969, of the learned Chairman of the Second West Pakistan Industrial Court, Karachi. The impugned order was passed on an application under section 38 of the repealed Ordinance, whereby the respondent was ordered to be re‑instated with effect from 8th August 1968.
2. The respondent, in the application, contended that lie had not committed any misconduct, so as to entitle the Management to dismiss him from service. The learned Chairman of the Industrial Court came to the conclusion that the respondent had not committed any misconduct and, therefore, the provision of section 8 of the repealed Ordinance was attracted.
3. The learned Representative for the Management has not challenged the finding of the learned Chairman of the Industrial Court that the respondent had not committed any misconduct. He has, however, confined his arguments to the interpretation of section 38 of the repealed Ordinance.
4. Mr. Masood Mirza, the learned Representative, contended in the first place, that the provision of section 38 of the repealed Ordinance was not attracted, inasmuch as, the respondent having not committed any misconduct connected with the industrial dispute, the Management was free to do away with his services. This would require consideration of section 37 of the repealed Ordinance. Section 37 of the repealed Ordinance is divided into three subsections. Subsection (1) of section 37, guarantees to an employee stability of his service during the pendency of an industrial dispute with which the workman is concerned. His condition of service, during the pendency of the industrial dispute, can be changed only with the permission of the Conciliation Officer, toe Industrial Court, or the Tribunal, as the case may be. He, however, could be dismissed or discharged from service for misconduct, which was not connected with the industrial dispute.
Subsection (2) of section 37, guarantees to an Officer of a registered Trade Union that his terms and condition of service cannot be changed during the pendency of the industrial dispute without the permission of the Court. In the case of an Officer of a registered Trade Union, the guarantee is of wider scope, inasmuch as, he could not be dismissed from service without the permission of the Court, even for misconduct not connected with the industrial dispute. Subsection (3) of section 37, empowers the Court to deal with the application under section 37, is a summary way that it may deem proper. An application can be made under section 38 of the repealed Ordinance only if there is a violation of section 37 of the repealed Ordinance. Mr. Masood Mirza contended that the respondent having committed misconduct, which was admittedly not connected with the industrial dispute pending in the Court, the Management was free to dismiss him from service.: This is not what is envisaged by section 37 of the repealed Ordinance. The Management could deal with the workman by discharging or dismissing him from service only if the workman had committed some misconduct. If he had not committed any misconduct, the services of the workman could not be terminated. It is open to the workman to make an application under section 38 of the repealed Ordinance where he has been dismissed without having committed any misconduct.
5. In the next place, Mr. Masood Mirza contended that the proper remedy for the respondent was to have made a application under Standing Order 18(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders Ordinance, 1968. There is not much force in this contention'. The mere fact that the workman could make an application under Standing Order c 8(b), would not deprive him of his right to make an application under section 38 of the repealed, Ordinance, if it was attracted to his case.
No other point was urged by Mr. Masood Mirza. The appeal is dismissed.
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