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Petitions Nos. 46 to 49 of 1985, decided on 15th September 1985.

‑‑‑Ss. 25‑A & 47‑‑Permission to dismiss office‑bearers of trade union for misconduct during pendency of industrial dispute‑‑Court to see whether a prima facie case of misconduct was made out while detailed scrutiny of facts not to be made‑‑Detailed scrutiny could be made only under S.25‑A and not under S.47‑‑Points for consideration, (i) whether allegation if proved amounts to misconduct (ii) whether enquiry held with opportunity of defence to accused worker, (iii) whether worker prima facie victimised for trade union activities, and (iv) whether application under S.47 was maintainable.

‑‑‑S. 2(c) a S.O. 15(4)‑‑Factories Act (XXV of 1934), S.9(1)‑‑Dismissal for misconduct‑‑Service of charge‑sheet‑‑Works Manager ranking above Factory Manager‑‑Service of charge‑sheet by Works Manager, held, not exceptionable.

1980 P L C 1152 distinguished.

1983 P L C 841rel.

‑‑‑S. 15(4)‑‑Dismissal for misconduct‑‑Supply of enquiry report to accused workman and second show‑cause notice, held, was not requirement of law.

1973 S C M R 455 ref.

P L D 1981 S C 225rel.

‑‑‑S. 25‑A‑‑Industrial dispute‑‑Domestic enquiry‑‑More than one employee facing same charge‑‑Different Enquiry Officers appointed for each‑‑All employees were held guilty‑‑Accused, held, not prejudiced simply because separate enquiries were held instead‑of joint enquiry.

Tanvir Bashir Ansari for Petitioner. Ch. Sadiq Muhammad Warraich for Respondent.

This judgment shall also dispose of the connected Petitions Nos. 47 of 1985 bearing caption I.C.I. v. Akhtar Abbas, 48 of 1985 bearing caption 'I. C.I. v. Ali Asghar and 49 of 1985 bearing caption 'I. C.I. v. Ashiq Hussain' under section 47(2), I.R.O. brought by the above k. mentioned petitioner seeking permission to dismiss the respondents on the charges of misconduct founded on the same cause of action.

2. Brief facts giving rise to these petitions are that on 9‑3‑1985 at about 12‑15 hours, the respondents behaved in a manner which allegedly amounted to riotous and disorderly behaviour as well as acts subversive of discipline constituting misconduct. On 21‑3‑1985 separate charge‑sheets were served on the respondents by the Works Manager of the petitioner establishment which were resisted. Four Enquiry Officers were accordingly appointed to hold domestic inquiry into the charges. They held the inquiry and found all the four respondents guilty of misconduct. Since the respondents are office‑bearers of the union which is at present C.B.A. and has raised an industrial dispute by giving charter of demands on 1‑1‑1985, hence the necessity of these petitions under section 47(2), I.R.O.

3. The petitions have been vehemently contested. It is now a settled law that while dealing with petition under section 47(2), I.R.O., the Court has only to see whether a prima facie case of misconduct is made out or not against the worker before granting or refusing permission for dismissal of workers. Detailed scrutiny on facts is to be made if the permission for dismissal is granted and the worker comes to the Court under section 25‑A, I.R.O. The reason is obvious for if it is held in petition under section 47(2), I.R.O. that the charges were sufficiently proved in the domestic inquiry and permission for dismissal is granted, the case of the worker would be prejudiced when he comes under section 25‑A, I. R.O. It is for that reason that the evidence in these petitions was not recorded. I have heard the learned counsel for the parties and perused the record.

4. I think points for consideration before the Court while dealing with a petition under section 47(2), I.R.O. for granting or refusing permission for dismissal of the worker should be as follows:‑

(i) Whether the allegations against the worker, if proved, will amount to misconduct

(ii) If the first point is answered in affirmative, whether inquiry was held into the allegations and the worker was given opportunity to defend himself

(iii) Whether the worker has been prima facie victimised for his trade union activities

(iv) Whether the petition under section 47(2), I.R.O. is legally maintainable or not

5. As already remarked, the respondents have been charged with the following charges:‑

(i) That on Saturday, 9th March, 1985 at about 12‑15 hours in front of the time office, the respondents threatened Contractors labourers and prevented them from entering the works to perform their jobs at the plant;

(ii) That the respondents forcibly entered the works through time office in defiance of clear instructions of the management and caused obstruction in the working at the Ash Warehouse by threatening the labourers at work of dire consequences which resulted in stoppage of work, damage to plant equipment and loss of production;

(iii) That the respondents on Monday, 11th March, 1985 came inside the plant at about 14‑20 hours went to the Ash Warehouse, where they threatened the Contractor and his labourers and obstructed the work carried on there.

6. These allegations, if proved, certainly amounted to riotous and disorderly behaviour and acts subversive of discipline constituting misconduct. The petitioner has filed the charge‑sheets and inquiry proceedings in all the four cases which show that the charge‑sheets were served within time and the inquiries were held into the charges wherein the respondents were given opportunity to defend themselves. Prima facie, it does not seem to be a case of victimization for trade union activities because such activities do not permit the union leaders to indulge in riotous and disorderly behaviour amounting to acts subversive of discipline. At this stage, learned counsel for the respondent raised the following points for adjudication by this Court:‑

(a) Neither the charge‑sheets have been served nor the Inquiry Officer was appointed by the employer, hence the entire superstructure based on such charge‑sheet and the inquiry proceedings is illegal,

(b) Copy of the inquiry report was not supplied and second show cause was not served on the respondents by the petitioner before moving; this Court to accord permission to dismiss the respondents.

(c) The alleged occurrence was one and the same and the respondents were to face similar charges but the charge‑sheets were separately served and four Inquiry Officers were appointed to hold separate inquiries against the respondents which has prejudiced them.

7. According to the learned counsel for the respondents, the Employer in a factory, as per section 2(e) of the Standing Orders Ordinance, 1968, means the owner of an industrial or commercial establishment or any person named under clause (c) of subsection (1) of section 9 of the Factory Act, 1934 as manager of the factory. The learned counsel further argued that clause (iii) of section 2(e) which provides in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment to be an employer is a residuary clause and not applicable where clause (1) of section 2(e) applies. Reliance is placed on 1980 PLC 1152 and some other authorities but other authorities do not seem to be relevant and need not be discussed. In the instant case, the charge‑sheet was certainly not served by the Factory Manager but was served by the Works Manager, who as admitted by the respondents before me is above the Factory Manager. The precedent case reported in 1980 PLC 1152 is, therefore, distinguishable from this case inasmuch as the charge‑sheet in that case was neither served by the Factory Manager nor by any officer above the Factory Manager but was rather served by an officer equal to the Factory Manager but not notified as Factory Manager while in this case the charge‑sheet was served by the Works Manager who is above the Factory Manager. There can, therefore, be no reason as to why an officer above the Factory Manager is not an employer if the Factory Manager is an employer. Had the charge‑sheet been served and the inquiry Officer appointed by an officer below the rank of Factory Manager or equal to the rank of Factory Manager but not notified as a Factory Manager, the position would have been certainly different. Moreover, the learned Labour Appellate Tribunal Punjab has expressed the view in 1983 P L C 841 that the service of charge‑sheet need not essentially be done by the appointing or punishing authority and can be served by any officer coming within the definition of 'Employer' and has some kind to control over the accused workman. I, therefore, do not find any force in the first objection raised by the learned counsel for the respondents and repel the same.

8. Relying upon 1973 S C M R 455, the learned counsel further argued that the authority lays down the workman should be furnished with copy of inquiry report and also be given an opportunity to show cause against order of dismissal which has not been done in these cases. I am afraid, this view was dissented from by the Supreme Court itself in P L D 1981 S C 225 wherein it was held that the supply of inquiry report to the accused workman and second show‑cause notice were not the requirement of law. The second objection of the learned counsel is also turned down.

9. The third objection might have carried some weight if any of the four Enquiry Officers had exonerated of the charges any of the respondents before him not in the present situation when all the four Inquiry Officers held all the four respondents guilty off the charges of misconduct. I am, therefore, of the view that none of the respondents has been prejudiced simply because four separate inquiries were held into the charges instead of a joint inquiry.

9. As a result I allow all the four petitions and accord permission to the petitioner to dismiss the respondents without prejudice to their right to come to this Court for their reinstatement under section 25‑A, I. R. O., 1969.

A. E. Petitions allowed.

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