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Application No.l of 1985, decided on 22nd September, 1985.

‑‑‑S. 47(2)‑‑Dismissal of office‑bearer of trade union for misconduct during pendency of industrial dispute‑‑Permission of Labour Court‑ Guiding requirements for Labour Court (1) Whether there is prima facie case. (2) Whether proper opportunity of defense given. (3) Whether there was victimisation. (4) Whether there was contravention of law or rules of natural justice‑‑Domestic enquiry indicating that after statement of accused giving impression that it was admission of guilt no opportunity given to have idea of victimisation and mala fide proved‑‑Domestic enquiry, in circumstances, held, suffered from contravention of requirement of natural justice‑‑Permission fir dismissal, in circumstances, refused.

1978 P L C 523 ref.

‑‑‑S. 47(2)‑‑Punishment of office‑bearer of trade union during pendency of industrial dispute‑‑Permission of Court‑‑Scope of S. 47 limited to extent of completing disciplinary proceedings‑‑Nature of punishment, discharge, dismissal or any other punishment subject to judicial review under S. 25‑A‑‑Question that allegation did not amount to misconduct calling for dismissal and that authority taking' action was not competent, _held, could not be taken up in proceedings under S. 47.

P L D 1978 239 and 1971 P L C 255 ref.

Samiullah Khan, Representative for Applicant.

Mirza Muhammad Kazim for Respondent.

Permission is sought from the Labour Court under subsection (2) section 47 of the Industrial Relations Ordinance by the Shaheen Airport for taking disciplinary proceedings against the respondent who has been held guilty of misconduct, that respondent was deputed for GUP at the Airport who after installing at the Gulf Aircraft left GUP unattended, which was driven by Sardar Ahmed driver.

2. Respondent has contended that he had left for prayers at 1‑30 p.m. It was, therefore, not a misconduct. He has also taken an exception to the remarks of Mr. Peter which caused him prejudice.

3. Section 4' has created a bar, that no employer will discharge, punish or dismiss the employee during the pendency of an dispute, unless the misconduct is such which is not connected with dispute. Subsection (2) provides notwithstanding the general provision, no officer of the trade union shall be punished, discharged or dismissed except with the permission of the Labour Court.

4. This section is in two parts, one is that if there is an industrial dispute, no employee will be punished unless the misconduct is such which can not connected with industrial dispute. Second part reads that no office‑bearer will be dismissed, discharged or punished unless there is permission of the Labour Court.

5. In this case, admittedly respondent is the office‑bearer of the union, who has placed charter of demands. Secondly the misconduct which is charged is not connected with industrial dispute. The misconduct which is alleged against him is the independent allegation, regarding the negligence of the respondent, when he left GUP unattended which could cause loss to the Aircraft. On the other hand section 47 has provided safe guard in the case of employees and the office‑bearers, if there is industrial dispute, and there is general safe guard, if there is office‑bearer of the union involved. Standing Order 15 also gives jurisdiction to the employer to proceed against any employee who is charged with misconduct and any misconduct if results in punishment is again subject to the judicial review in the Ordinary grievance before the Labour Court under section 25‑A.

6. In other words section 47, as this Court, finds, is of limited nature where the permission is sought from the Court to complete the disciplinary proceedings which otherwise the employer had the jurisdic tion, but for the safe guard provided in the ordinance, the employer was controlled by certain provisions to seek such permission from the Labour Court to complete the disciplinary proceedings as provided under Standing Order 15.

7. Section 47 as pointed by the counsel from the judicial decision has referred to certain judicial requirements .for the Court guidance namely, (1) Whether there is a prima facie case. (2) Whether proper opportunity was given to the employee. (3) Whether there was victimization. (4) Whether there was contravention of law or the rules of natural justice.

8. If this section 47 is of summary nature and the Court has not to go into the merits of misconduct except to find whether the enquiry was properly conducted following all the requirements of law and the rules of natural justice. The Labour Court after examining the enquiry finding, is of the view that the allegation being in the nature, independent, not connected with industrial dispute, which is raised by the union completely placing different cause of action, the question of victimization, mala fide intention, is to be judged from the record of the enquiry, where the respondent has participated, cross‑examined the witnesses, as to make out his part of evidence to the question of victimization and also to find out whether enquiry was conducted properly with all the opportunity afforded to the respondent to put up his case. It follows from the record of the enquiry, that no opportunity is given of defense to the respondent when he has not acknowledged the closing of his side after the prosecution evidence was concluded and his statement recorded. Such being the contravention of the requirement of natural justice despite the impression gained that it was an admission of guilt after the respondents' statement. The right of the defense is still the basic right of the respondent to put up his side of version, to have the idea of victimization and mala fide intention. Permission presently is premature, to complete the proceedings after the finding. Application is dismissed to that extent. Reference is made to 1978 PLC 523,

9. Mr. Mirza Kazim has also referred to two legal aspects that it is not a misconduct in view of the decision referred in 1978 P L D 239 and also contended that Mr. Abrar had no jurisdiction to file application for seeking permission. The Court is of this view that the scope of section 47 is limited to grant permission only to the extent of, completing disciplinary proceedings, to whatever punishment of discharge, dismissal, or any other punishment is again subject to the judicial review under F section 25‑A in respect of the individual grievance. Similarly the question of competency of Mr. Abrar is not upheld when reference is made to section 8(b) of the Industrial Relations Ordinance, as referred by the counsel Mr. Samiullah Khan. The Court has also further referred to 1971 P L C 255, 1978 P L C 521, on the scope of section 47. Application is dismissed as observed above.

A.E.

Application dismissed.

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