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Appeals Nos. 34 to 39 of 1973 and 366 to 368 of 1974, decided on 30th January 1975.

---S. 47-Dismissal of office-bearer of Union-Strike notice served by Union other than Collective Bargaining Agent -Contention that after issuance of such notice and during conciliation proceedings office bearers of such Union could not be dismissed without permission .under S. 47-Held, without force.

----Domestic enquiry-Dismissal order withdrawn due to defects in inquiry-Holding of fresh inquiry, in circumstances, held, not objec tionable and not hit by principle of autre fois convict ----Such fresh inquiry, held, would in fact be in continuance of previous enquiry and not a second trial.

Ghulam Qadir Cheema for Appellant.

Khalid Farook Qureshi for Respondent.

This judgment will dispose of five appeals Nos. 32/73-368/74, 35/73-366/74, 37/73, 38/ 73 and 39/73-367/74. They were accepted by my learned predecessor on 2nd August 1973. The appellants namely, Muhammad Din, Muhammad Amir, Muhammad Akram, Ghiasuddin and Wahab Hussain, were ordered to be re-instated. The employer namely, United Cotton Mills, Jauharabad, fled a writ petition which was accepted by the High Court and the appeals were remanded for fresh decision.

The facts in all the five appeals are identical. The same question of law and fact are involved in them therefore they are taken together.

On the night between 22nd and 23rd December 1972, one Muhammad Suleman a Jobber was murdered in the premises of the Mills namely; United Cotton Mills, Jauharabad. Due to this incident, the workers went on strike. The establishment remained close from 23-12-1972 to 26-12-1972. The Management was of the view that all the five appellants namely; Muhammad Din, Muhammad Amir, Muhammad Aslam, Ghiasuddin and Wahab Hussain were responsible for the illegal strike. These workers were charge-sheeted on 26th December 1972. The charge against them was that they were guilty of striking work and inciting to strike in contravention of the provisions of any law or rule having the force of law. Their explanation was that they were not guilty for the strike. They stated that the Management had closed the Mills in order to provide a chance to the workers to join the funeral proces sion of Suleman who was murdered in the Mills, After holding an inquire all the five workers were dismissed from service on 2nd January, 1973.

The appellants, on 8th January 1973, filed separate applications under section 25-A of the Industrial Relations Ordinance, 1969, in the Junior Labour Court, challenging the order of their dismissal and praying for re-instatement with back benefits. In all these applications the subject-matter was the same. Every one of them stated that he was an enthusiastic worker of Mazdoor Union that the said Union had applied to the Registrar of Trade Unions, Sargodha Region, Lyallpur, for holding a referendum but the Manage ment wanted to make the other Union known as Workers' Union, successful in the referendum, therefore, they had been dismissed from service. It was further disclosed by them that Management closed the Mills due to murder incident of Muhammad Suleman and brought a false allegation against them that an illegal strike was commenced. It was further stated by them that no chance of defence was given to them. One of the appellants namely; Wahab Hussain stated that he was the General Secretary of Workers Union and a false allegation was levelled against him to deter him from Union activities In brief, the case of the appellants in the Junior Labour Court was based on the grounds; (1) that they were being victimized on account of their Union activities and (2) that proper chance of defence was not afforded to them during inquiry.

The learned Junior Labour Court disposed of the cases of Muhammad Din, Muhammad Amir and Muhammad Akram on 11th January 1973. Although separate orders were written but in verbatim they are the same. In all these cases a Representative of the Management stated that there were certain lacunas in the inquiries, so the Management had withdrawn the dismissal orders and re-instated them on 10th January 1973. The representative further stated that Management would hold a fresh inquiry on the basis of same allegation. The learned Junior Labour Court ordered re-instatement with back benefits. In the end it was observed by the learned lower Court that the Management was not justified to conduct the second inquiry against the petitioners regarding same allegation. In the cases of Ghiasuddin and Wahab Hussain nobody appeared on behalf of the Management. Ex pane, proceedings were taken. The appellants were ordered to be re-instated. No bar was imposed on the Management about holding the second inquiry.

The Management felt aggrieved by the observations made by the Junior Labour Court to the effect that the second inquiry was not justified. Conse quently, the Management filed appeals before the Punjab Labour Court No. 2, Lahore in the cases of Muhammad Din, Muhammad Amir, and Akram. During the pendency of appeals a stay order was obtained for holding the second inquiry. These appeals were decided on 10^th March 1973. The appeals were accepted. The findings were that in case where a worker is re-instated on the ground of want of proper inquiry the Management can remove those defects in the inquiry and can proceed to consider the case from the stage, those defect s took place."

Armed with the decision of Punjab Labour Court No. 2, Lahore, the Management took up the cases of the appellants again. A copy of the inquiry report along with evidence was furnished to every one of the appellants, their explanations were obtained and all them were dismissed from service on 18th March 1973. Three of the appellants namely; Muhammad Din, Muhammad Amir, Muhammad Akram presented their petitions under section 25-A of the Industrial Relations Ordinance, 1969, before the Junior Labour Court on 22nd March 1973. The subject-matter of these three applications were the same. They said that they were office-bearers of Mazdoor Union, that their Union had served a strike notice on the Manage ment and that conciliation proceedings were pending before the Conciliator. They said that under section 47 of the Ordinance there was a clear bar on the Management to dismiss them from service because the conciliation proceedings had commenced and without the permission of the conciliator or Labour Court they could not be dismissed from service. In the reply statement the Management denied that any of the appellants was office-bearers of Mazdoor Union. It was said that the Union was not C. B. A. and was not competent to issue any strike notice, therefore there was no violation of section 47 on the pa-t of the Management. It was not specifically denied by the Manage ment that the strike notice by Mazdoor Union had not been served on them. In all these cases the learned Junior Labour Court held on 29th March that a proper inquiry was conducted. The applications were dismissed.

Ghiasuddin and Wahab Hussain presented their petitions before the Junior Labour Court on 20th March 1973. They were also dismissed from service on 18ta March 1973. They said that the inquiry proceedings were illegal and that the Management had also contravened the provisions of section 47 of the industrial Relations Ordinance, 1969. A similar reply were given in these cases also and by a similar order these application were dismissed. All the five applicants filed appeals before the Punjab Labour Court No. 3, Lyallpur. They were disposed of by my learned Predecessor on 2nd August 1973, by the same order. His view was that the Management bad contravened the provisions of section 47 of the Ordinance, and that a proper inquiry was not held, therefore he accepted all the five appeals and the appellants were ordered to be re-instated.

The Management filed a writ petition against the above order. It was accepted on 20th November 1973. On the question of violation of section 47 of the Ordinance his Lordship Mr. Justice Shafi-ur-Rehman, observed as under:

"It was not the case of these respondents that they were office-bearers of the Union. It was not so determined or urged even before the Junior Labour Court. There is nothing on the record of the appellate Court either to support this conclusion. There is documentary evidence to the contrary in that challenging their removal etc, go to show that they only claimed to be enthusiastic workers of the Union and not its office-bearers. Therefore, this finding of fact by the Labour Court is based on no evidence and is against all evidence and pleadings. Any order based on such a conclusion cannot be sustained."

Apparently, the question of violation of section 47 stands at rest by the above observations. With utm6st humility at my command I may observe that it escaped the notice of his Lordship that in their petition filed on 20th March and 22nd March 1974, the case of the appellants was that they were office-bearers of Mazdoor Union that a strike notice was served by their Union on the Management and in response to the said notice conciliation proceedings were pending before the Conciliator. It appears to me that the applications which were filed by the Management on 8th January 1973, came to the notice of his Lordship and in all these applications it was stated by the appellants that they were enthusiastic members of the Union. In these applications no question of violation of section 47 was raised. However, in the applications filed in March 1974, the defence of the Management was that the appellants were not office-bearers of Mazdoor Union, that the said Union was not a C. B. A. and so it was not competent to give any valid strike-notice to the Management. The Advocates who appeared before me did not address me if this point needs further determination. I will not go into ticklish question if this Court can give any finding afresh in view of the observations made by his Lordship in the writ petition. In the question for fact I find that Mazdoor Union was never declared C. B A. It is an admitted fact that there were two Unions in the United Cotton Mills. One was Manzoor Union and the other was Workers' Union. It appears that Mazdoor Union approached the Registrar, Trade Unions to hold a referendum. This application was filed on the April 1973, and the following reply was given on 11th April 1973, to the Registrar:

"Since the latest list of the members have not been supplied by you alongwith your letter under reference, therefore, your request for holding referendum is hereby rejected. Necessary list of membership is a pre-requisite before the referendum proceedings are initiated."

The above letter is at page 127 of the record and it proves that Wazd4) Union was not a C. B. A. The Registrar, Trade Unions, filed an application before the Punjab Labour Court No. 3, Lyallpur for issuing a direction to cancel Mazdoor Union This case was registered at No. 18/73. On v August 1973 the following order was passed:

"Mr. Abdur Rehman Niazi (President of Mazdoor Union) has no objec tion for the cancellation of the Union provided he is given an opportunity to have another Union properly registered. So this case is adjourned for 31st August 1973, at Sargodha. In the meantime, Abdul Rehman Niazi will apply for a new registered."

Union and- get it

It is not on record if Mazdoor Union was cancelled or not. Whatever the cane may he it is approved fact that Mazdoor Union was not a C. B. A, It was therefore, not competent to serve any strike notice on the Management. It was not necessary for the, Management to obtain any prior Permission from the Conciliator or the Labour Court while passing an order of dismissal against the appellants.

The second question in this case was about inquiry itself. On this point may learned Predecessor observed:

"This is admitted that the appellants never participated in the inquiry throughout and in record there is nothing to show whether they were served by a show-cause notice, charge-sheets etc. or not except the statement of the Personnel Officer of the Management. So I am unable to say whether they did join intentionally or they had no knowledge. Again, nothing on record is to show that any representative of the appellants was made to represent them or to join them."

His Lords p Mr. Justice Shafi-ur-Rehman did not agree with the above observation an adversely commented on it as under:--

"If the material on record was insufficient to form any definite conclusion with regard to a finding that was to have given then two courses were open. One was to reject the claim of the person who was making a claim for some thing and in this case, the workers were making clam for reinstatement for which they were found to have not produced the necessary material. The other course was to either collect the material and ask for it from the parties themselves or remand the proceedings to the Junior Labour Court to get on record documents or evidence which were necessary for determining justly and properly the cause brought before the Tribunal. Instead of adopting these logical and reasonable courses, claimants have been allowed to succeed in their claim holding that the evidence is not sufficient to decide one way or the other. This is an error in law and liable to be corrected in constitutional jurisdiction of this Court."

Ch. Ghulam Qadir Advocate of Lahore the learned counsel for the appellant, did not appear in person but he sent his written arguments. The first point raised by him is that the Management held an inquiry and dismissed the appellants on 2nd January 1973. The learned Junior Labour Court found that the inquiry was illegal. His argument was that the Management could not hold a second inquiry because it contravened the principle of natural justice, which is that nobody shall be twice vexed for one and same cause. He has tried to support this principle by some authorities. This principle has been duly recognized in our codified law. In the trial of criminal cases the Code of Criminal Procedure provides section 403. This section lays down that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force not be liable, to be tried again for the same offence. In the civil cases we have got the law of Estoppel, under section 115 of the Evidence Act and the law of res judicata under section 11 of Code of Civil Procedure. All these provisions of codified law lay down the principle that no person can be vexed twice for the same cause.

On page 223 in Broom's Legal Maxims it has been stated that:-

"It is the foundation of the special pleas of autre fois acquit and autre fois convict. When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction that adjudiction is final, whether it takes the form of an acquittal or a conviction and it may be pleaded in bar of a subsequent prosecution for the same offence whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or the consequences of the offence."

It is clear that this principle is equally applicable to civil as well as to criminal proceedings. In whichever category a disciplinary inquiry against an employee may, therefore, be classed the result of it would be that once an employee has been punished by a competent authority, the matter cannot be re-opened to his detriment. The correctness of the above principle cannot be doubted for a single moment but this principle has no application in the present case. This will apply only when an employee has been punished after holding an inquiry. In the present case an inquiry was held in the let week of January 1973 but after 8 days the Management had withdrawn the order of dismissal. The reason was that the appellants had approached the Junior Labour Court for re-instatement. The. Manage ment did not think it proper to contest the applications. On the contrary vie Management withdrew the order of dismissal with the intention to hold a fresh inquiry because it thought that there was some legal defect. The above principle would apply only if a person had been tried and punished. In the first inquiry the appellant had not been punished because the order of dismissal was withdrawn. It was only a case of re-trial. In numerous criminal and civil cases, it has been observed that superior Courts find faults in the trial held by the inferior Courts and so the cases are remanded for fresh trial. If the argument of the learned B counsel is accepted then all the fresh trials would become illegal but this is not the position in law. In the present case the second inquiry was in fact in continuance of the first inquiry. The true position is that both the inquiries amount to one and the same inquiry and so it will be wrong to say that the second inquiry was a second trial. The argument of the learned counsel has, therefore, no force.

The real question in this case is whether the appellants were dismissed from service after a proper inquiry. It was, their duty to bring on record sufficient material to show that the inquiry violated the principle of natural justice. As they did not bring any evidence on record, therefore, their claim should have been rejected. However, in the interest of justice I called upon the Management to produce before me the inquiry papers. I have gone through the files of Muhammad Din, Muhammad Amir and Wahab Hussain. In all these cases a proper charge-sheet was served on the appellants on 26th December 1972. A reply was furnished by the appellants who denied the charge. In each case four witnesses were examined. Their evidence was that the appellants were on strike and they were inciting others to go on strike. A separate inquiry report was recorded in each case. The inquiry officer found that the appellants were guilty of commencing strike as well as inciting others to go on strike. The defect for which the Management withdrew the order was that they had not furnished inquiry report alongwith evidence the appellants. They did so after withdrawal of the order of dismissal. Again a show-cause notice was served and reply was obtained. The manage ment found the appellants guilty and so they dismissed them from service.

It was the sole discretion of the Management to believe or disbelieve the evidence produced against the appellants. In each case proper chance of defence was given. There is nothing to show that any of the inquires contravened the principle of natural justice. I am of the view that none of the appellants deserve to be re-instated as there was nothing wrong in any of the inquiries.

The result is that all the five appeals are dismissed. Into order as to costs.

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