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Application No. 175 of 1970, decided on 19th February 1972.
S. 34 read with Ss. 41, 43 & 47‑Application under S. 34‑Maintainability of Conditions for.
An application under section 34 of the Industrial Relations Ordinance, 1969 by the Collective Bargaining Agent, against the dismissal and termination of services of some of the workmen was contested on the plea of non‑maintainability. It was contended that there was no industrial dispute pending when the application was filed and as such it was not maintainable; as in the scheme of the Ordinance, seen from sections 41, 43 and 47, certain condi tions have to pre‑exist before an industrial dispute may be deemed to exist.
Held, Industrial Relations Ordinance, 1969 has introduced a fine distinction between the question of existence of an industrial dispute and the question that such an industrial dispute may be deemed to exist. Thus under certain conditions an industrial dispute may exist but it shall not be deemed to exist for certain purposes. Sections 41, 43 and 47 deal with those conditions and if a workman wants to make use of the safeguards provided under those sections it is not sufficient for him to prove that an industrial dispute existed. He will have to prove that such an industrial dispute has to be deemed to exist in the terms of the provisions of section. In the light of this observation the purport of section 34 as it stood before the amendment is very clear. The section uses the terms industrial dispute only and toss the question whether an industrial dispute has to be deemed to exist or not is not relevant for making an application under that section. The only requirement is that there must exist an industrial dispute as defined under section 2(xiii) of the Ordinance. In this case difference existed between the Union and the Manage ment over the removal of workmen and as such the application is maintainable.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-----
S. O. 18‑Petition to Court‑Must be presented within limitation period‑Grievance petition to employer‑Provisions directory and not mandatory‑Non -preferring of grievance petition to employer‑Does not debar workman from seeking redress from Court do case he comes to Court within period of 60 days.
The scheme of S. O. 18 West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 indicates that the Legislature intended to keep right of the workman to get redress, alive for a period of sixty days. During this period, the right remains alive and there are two remedies available for the redress. The workman may choose any one of them. Of course if the period of limitation runs out and the right does not remain enforceable any longer, the workman cannot be allowed to pursue the remedy. It cannot be agreed that without preferring grievance petition a workman cannot come to the Court. That provision is directory and not mandatory. What is material is the period during which the right to redress remains alive.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-------
S. O. 15(3)‑Miscon duct‑Gross negligence‑Does not constitute "habitual negligence" amounting to misconduct‑Workman dismissed on charge of gross negligence resulting in heavy loss to employer Solitary act of gross negligence, held, not sufficient to prove "misconduct" warranting dismissal‑Dismissal order, in circumstances, set aside with full back wages‑Employer however, permitted to deduct losses from arrears of wages of workman.
(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)------
S. O. 15(1)(ii)(a)‑‑Refusal to carry out departmental Instructions‑‑Constitutes disregard or disobedience of rules or order and not "misconduct"‑Workman dismissed on charge of refusal to carry out departmental instruc tions‑Dismissal order, in circumstances, held, not sustainable --Re‑Instatement with full back benefits awarded.
Muhammad Shafiq Qureshi for Applicants.
Masood Mirza for Respondents.
‑In this application the applicant‑Union who are the Collective Bargaining Agent in the respondent Ahmad Abdul Ghani Textile Mills have taken up the cases of workmen Muhammad Ramzan, Kachkol Khan, Qavi Khan, Adam Khan and Abdul Ghaffar Workmen. Muhammad Ramzan, Qavi Khan and Kachkol were dismissed from employment. The grievance of the applicant is that the procedure prescribed for the purpose was not followed. Services of workman Adam Khan were terminated and the applicant feels that this termination was a cloak to cover illegal dismissal.
A notice of this application was served on the respondents who have appeared through Mr. Masood Mirza. They answered that the application was not maintainable in terms of section 34 as it stood before the amendment and that the application was filed beyond limitation provided in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Parties led evidence on affidavit and were subjected to cross examination. The matter has come up for disposal today. The contentions of Mr. Muhammad Shafi Qureshi, are as follows:‑
(a) No charge‑sheet was issued to the workmen.
(b) No time was allowed to the workmen to submit their explanation to the charge‑sheets.
(c) The dismissal followed within two days of the service of the notice which shows that the proceedings were taken in hot haste.
(d) Workman Ramzan was charged with negligence which does not amount to misconduct,
(e) Workman Kachkol is alleged to have disobeyed the rules of the mills and that also does not amount to misconduct.
(f) Workman Qavi Khan is alleged to have disobeyed the departmental instructions and that also does not amount to mis conduct.
(g) In the case of workman Adam Khan his services were terminated for no reason and this shows that termination was used to cover illegal dismissal.
Mr. Muhammad Shafiq Qureshi gave up the cane of workman Abdul Ghaffar.
Mr. Masood Mirza submitted as follows:‑
(a) There was no industrial dispute pending when this application was filed and therefore this application is not maintainable.
(b) In terms of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the workman has to prefer grievance petition within fifteen days of his dis missal before coming to this Court and since in this case it has not been done within that period the application is belated.
(c) The workmen were dismissed after due enquiry.
(d) Services of workman Adam Khan were terminated law fully. He did not hold any office in the Union and therefore it cannot be said that he was removed for his Trade Union activities.
Section 34 of the Industrial Relations Ordinance, 1969 stood as follows before the amendment:‑
"Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute."
The term industrial dispute has been defined in section 2(xiii) of the Industrial Relations Ordinance, 1969 as follows:‑
"Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non‑employment or the term of employment or the conditions of work of any person."
The contention of Mr. Muhammad Shafiq Qureshi is that in this case there was difference between respondent employer and the applicant collective bargaining agent over the removal of the workmen and therefore, an industrial dispute existed when the Union filed this application in the Court. He added that a notice had been given by the Union to the Management under section 26 of the I. R. O., 1969. Mr. Masood Mirza, however, is of the opinion that in the scheme of the Ordinance certain conditions have to pre‑exist before an industrial dispute may be deemed to exist. He has referred to sections 41, 43 and 47 of the I. R. O., 1969. In section 41 it is laid down when a conciliation proceeding shall be deemed to have commenced. Section 43 lays down when an industrial dispute shall be deemed to exist. Similarly section 47 provides certain safeguards to the employees during the pendency of the proceedings. In this case according to Mr. Mirza dispute cannot be deemed to exist.
Industrial Relations Ordinance, 1969 has introduced a fine distinction between the question of existence of an industrial dispute and the question that such an industrial dispute may be deemed to exist. Thus under certain conditions an industrial dispute may exist but it shall not be deemed to exist for certain purposes. The above sections deal with those conditions and as already pointed out if a workman wants to make use of the safeguards provided under those sections it is not sufficient for him to prove that an industrial dispute existed. He will have to prove that such an industrial dispute has to be deemed to exist in the terms of the provisions of section. In the light of this observation the purport of section 34 as it stood before the amendment is very clear. The section uses the terms industrial dispute only and thus the question whether an industrial dispute has to be deemed to exist or not is not relevant for making an application under that section. The only requirement is that there must exist an industrial dispute as defined under section 2(xiii) of the Ordinance. In this case difference existed between the Union and the Management over the removal of workmen. I will therefore hold that the application is maintain able.
Coming to the bar of limitation Mr. Masood Mirza is correct that the workmen are pressing their rights guaranteed to them by the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 and hence such rights will be governed by the limitations provided in that Ordinance. The specific provision is contained in Standing Order 18 which runs as follows:
"Grievance procedure.‑‑Any individual workman who has a grievance in respect of any matter under this Ordinance and intends to seek redress thereof, shall observe the following procedure:‑
(a) The workman concerned shall bring his grievance to the notice of his employer, in writing within fifteen day s of the occurrence of the cause of such grievance, and the employer shall, within thirty days of such grievance being brought to his notice, inquire into the matter, giving the workman concerned an opportunity of being heard, and communicate his decision, in writing, to the said workman;
(b) if the employer fails to give a decision within the period specified in clause (a), or if the workman is dissatisfied with such decision, the workman may make a complaint to the Industrial Court having jurisdiction, within thirty days from the date of the decision, or where the employer fails to give a decision, within sixty days of the workman bringing the grievance to the notice of the employer, unless the grievance has already been raised or has otherwise been taken cognizance of as an industrial dispute under the provisions of the West Pakistan Industrial Disputes Ordinance, 1968-------------"
The scheme of this Standing Order indicates that the Legislature intended to keep right of the workman to get redress, alive for a period of sixty days. During this period the right remains alive and there are two remedies available for the redress. The workman may choose any one of them. Of course if the period of limitation runs out and the right does not remain enforce able any longer, the workman cannot be allowed to pursue the remedy. I do not agree that without preferring grievance petition a workman cannot come to the Court. This provision is directory and not mandatory. What is material is the period during which the right to redress remains alive. In this case the application was preferred on 8th July 1970, and the dismissal orders are dated 16th May 1970, 18th May 1970 and 1st June 1970. This shows that the application was presented to this Court within the period of limitation.
Now I pass on to the cases of individual workman.
Workman Muhammad Ramzan:
He was given notice to the following effect on 29th May 1970:
"It has been reported that due to your gross negligence about 4500 yards of cloth of Design No. 2006 Q‑949 has been spoiled. On checking it was found that nail was put in the roller of callendering machine."
Dismissal order dated 1st June 1970 reads as under:
"As a result of an inquiry held on 1st June 1970 you have been found guilty of gross negligence due to which 4500 yards of costly cloth valued approximately at Rs. 17,000 got damaged."
It is clear that the entire process from the issue of notice to the dismissal order took only two days and the contention of Mr. Muhammad Shafiq Qureshi that the proceedings were taken in hot haste is correct. In the circumstances of the case it cannot be said that the workman was given sufficient time to offer his explanation. Moreover the only charge against him is gross negligence and it cannot be deemed to cover 'habitual negligence'. For habitual negligence more than one instances of negligence have to be proved. The contention of Mr. Muhammad Shafiq Qureshi that the gross negligence does not fall within mis conduct as defined in Standing Order 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968, is correct. The dismissal of the workman cannot therefore be sustained. I set aside the order and re‑instate the workman with full back benefits. It will be open to the respon dents to deduct the losses which they suffered from the act of the, workman from this amount.
Workman Qavi Khan:
He was given notice dated 14th May 1970 and dismissal order is dated 16th May 1970. This also shows that the dismissal followed within two days of the issuance of the notice. This enquiry has to be deemed to have been conducted in hot haste. The workman was not allowed sufficient opportunity to submit his explanation or to produce his defence. Moreover the charge against him is that he refused to carry out the departmental Instructions and that may well fall under Standing Order 15(1)(ii)(a) disregard or disobedience of rules or orders. The charge against the workman Qavi Khan and the dismissal order cannot be sustained. I will therefore order his re‑instatement with full back benefits.
Workman Kachkol:
He was issued notice dated 14th May 1970, and the dismissal order was issued 18th May 1970. The notice contained the following allegation:‑
"It has been reported that on 11th May 1970, in the 'C' shift you created an ugly scene by using abusive language. You also tried to cut the notice containing instructions for Winders by the Head of Department hanging on the wall with a knife. Then you blatantly refused to obey the instructions given by the Head of Department."
The record of the enquiry does not show what the instruc tions issued by the Head of the Department were. In bringing disobedience of an order of a superior within misconduct it has to be seen whether such order was reasonable or not. Otherwise such disobedience falls under Standing Order 15(1)(ii)(a). In the instant case that disobedience falls under less grave provision. The dismissal of the workman therefore cannot be sustained. I therefore set aside the dismissal order and the workman is re‑instated with full back benefits.
Workman Adam Khan :
The respondents have terminated the service of Adam Khan. He was a Chaukidar with the respondents. Admittedly he was not an officer‑bearer of the Union. Contentions of Mr. Muhammad Shafiq Qureshi that he was an active member of the Union and was pressing the demands of other workmen and that had resulted in the termination of his services has not impressed me. I have no reason to interfere with the termination of his services. The respondents are prepared to pay his lawful dues ‑and workman Adam Khan may collect the same.
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