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Messrs FIRDOUS SPINNING & WEAVING MILLS Ltd.
Application No. 39 of 1984, decided on 20th July, 1985.
‑‑‑S. 25‑A(10)‑‑Grievance petition‑‑Grievance common‑‑Joint petition by several workers, held, was maintainable.
‑‑‑S. 25‑A‑‑Grievance notice‑‑Workers apprehending giving of Mills by management to contractor and fearing termination of service‑ ‑Complaints to Material Law Authorities and Labour Department‑‑‑ Management informed of such complaints but sending no reply to workers and instead service charge‑sheets for absence from duty and subsequently dismissing them after ex parte proceedings‑‑Non sending: of reply to workers for resumption of duty, held, gave assumption to workers that they were removed and gate stopped‑‑‑Contention that grievance notice had to be given after dismissal order, repelled and complaint by workers, held, served purpose of grievance notice.
Ibne Ayub for Applicants.
Farooq A. Ghani and Mehboob Rizvi for Respondent.
Muhammad Yous4 and others have filed application under section 25‑A, Industrial Relations Ordinance, 1969 against Messrs Firdous Spinning and Weaving Mills Limited for reinstatement in employment against wrongful termination. '
2. Applicants claim that they were the permanent workmen of the respondents. They were working in the Weaving Department. Respondent had handed over Weaving Department to the contractor and compelled them to resign.
3. Applicants made complaint to the Authorities in this respect. Joint Director Labour directed the Assistant Director to call the meeting to decide this dispute. Before 21‑12‑1983 which was the date of meeting, respondents removed Muhammad Yousuf, Wasil Khan,' Naseem Khan and Johar Shah fry the; employment.
4. On 26‑12‑1983, the Labour Officer of the respondent Mr. Javed, gave the undertaking to take applicants again on duty due to intervention of the Labour Directorate but that undertaking was not implemented. Applicants again made complaint to the Assistant Director Labour Malir in this connection. But the undertaking again was not implemented.
5. In this process of compulsion resignation by the management, Mr. Sirajul Haq, Muhammad Qayum, Muhammad Ayub, Ali Bahadur were also refused duty on 8th January, or 12th January, 1984.
6. On 1‑12‑1983 applicant Ataullah was charge‑sheeted and received termination letter on 17th ‑of January.
7. The applicant claims that the factual background is that the respondent wanted to handover the Weaving Department on contract basis and the real idea was that after they have worked with the contractors they will be compelled to do 12 hours duty.
8. Applicant has also the grievance that due to this misconduct of the respondent, 300 workers have been rendered jobless and removed illegally.
9. Respondent has filed the written statement. It is contended that application is not maintainable. Grievance notice of different dates before their dismissal is also not maintainable. Joint applications have different grievance out of different cause of action is also not maintainable.
10. In addition to these legal objections they have explained the factual aspect that the respondent has never compelled any worker to resign from the job, but the true fact is that many weavers have resigned on their own accord and cleared their dues. They have also' admitted this fact that complaint was made before the Labour Director but the respondent had explained the position to the Labour Director that the plea of the workers was misleading. They were not removed from service. They were absent from duty without any leave. Respondent has also denied that on 21‑12‑1983 respondent removed Muhammad Yousuf, Wasil Khan, Naseem Khan and Johar Shah. According to them the fact was that they were charge‑sheeted on different dates for committing acts of misconduct. Regarding Muhammad Yousuf, it is explained that he was continuously absent from duty since 17‑12‑1983. His reply was not satisfactory. He was directed to participate in the enquiry with his witnesses and co‑workers before Mr. Masood Ali. Muhammad Yousuf did not participate on 12th of February, the proceedings ended in ex parte decision.
11. Regarding Naeem Gut it is explained that on 31‑12‑1983 he was issued charge‑sheet. His reply was not found satisfactory. He was asked to participate in the enquiry on 26‑i‑1984, but on 26‑1‑1984 he did not participate in the enquiry. The Enquiry Officer conducted the enquiry ex parte.
12. Regarding Johar Shah it is said that he was charge‑sheeted on 31‑12‑1983. On 29‑1‑1984 he did not attend the enquiry, and proceeded ex parte. In this respect they have also explained that joint meeting was held in the presence of Assistant Director. Respondent explained the position to them regarding their complaint. The applicants were not dismissed by that time. They were advised by the Assistant Director to resume their duty. They failed to resume. They were issued charge‑sheet for unauthorised absence.
13. Regarding' Sirajul Haq it is explained that he was also charge‑sheeted and asked to proceed in the enquiry. On 22‑‑‑1984 he did not attend the enquiry and proceeded ex parte.
14. Regarding Muhammad Qayum it is explained that he was charge‑sheeted on 14‑1‑1984 due to his absence from duty since 10‑1‑1984, he did not participate in the enquiry on 25‑1‑1984 and proceeded ex parte. Regarding Muhammad Ayub it is explained that he was charge‑sheeted for misconduct. He did not appear on 22‑3‑1984 and proceeded ex parte. Regarding Ali Bahadur it is explained that on 21‑1‑1984 he was issued charge‑sheet. He did not appear on 18‑2‑1984. Again matter was put up to 21‑‑3‑1984,he did not appear in the enquiry and proceeded ex parte.
Respondent has denied that there was any‑such intention that they wanted to get rid of the applicants or any worker of the Weaving Department. They have also denied that they have removed 300 permanent workers from the Weaving Department.
1. There are 2 legal objections raised by the respondent Firstly there is no common cause of action to file application under section 25‑A by all the concerned workmen namely Muhammad Yousuf and others. Secondly the grievance notice given by individual worker prior to the issuance of dismissal order on the basis of charge‑sheet of desertion from duty is also premature, in other words the respondent s contention is that the grievance notice as required by section 25‑A should have been sent after the dismissal order was issued by each worker in respect of the cause of action from the date of the dismissal order.
2. It is next contended by the respondent that applicant Muhammad Yousuf and others were charge‑sheeted, on the ground of the desertion of duty and Muhammad Yousuf was issued charge‑sheet that he was transferred to Ring Department, as the fitter without any change in his conditions of service. He refused to accept the transfer order and abused Mr. Javed Iqbal during working hours on 15‑12‑1983. Respondent, therefore, contends that this dismissal order was issued on the ground of the absence from duty in case of other Applicants/ Muhammad Yousuf, and if contended by the applicants that their termination was affected or 'removal it is claimed by‑ them that respondent wanted to hand over Weaving Department to the contractor is the baseless ground taken by the applicant to present a defence against the absence of their duty and to defeat the purpose of charge‑sheet.
3. On the other hand the applicants' contention is that they were working permanently in the department of weaving. Respondent decided .to hand over Weaving Department to contractor. They made complaint to the Labour Directorate who also advised the respondent to take them on duty but there was no‑ implementation and instead asking the workers to tender resignation and take the legal dues. .
4. They have disclosed the date of 21‑12‑1983, on which the applicants have shown that Muhammad Yousuf, Wasil Khan, Naseem Khan and Johar Shah were removed. Regarding removal of Sirajul Hag, Muhammad Qayum and Muhammad Ayub and Ali Bahadur they have disclosed the date 8th January, or 12th January, 1984 but they have not been sure what was the exact date on which these workers were removed.
5. From the pleadings of both the parties, this fact has become prominent that applicants on one hand claimed that it was in the year 1983, respondent handed over the Weaving Department and the respondents have stated in the written statement, nothing beyond the simple denial, in paragraph 5 of their pleadings, as answer to the pleadings in paragraph 2 of the applicants regarding contract, in these words:‑‑‑
"It is denied that the respondent management compelled any worker to resign. Para. 2 is open to challenge."
From this context, it appears that the respondents have not come out with the clear statement that the Weaving Department was handed over in 1983 or 1985, after December, 1984. It also further appears from the pleadings and the evidence that throughout the case, the case of the applicants is that their removal was on this ground alone that the respondent was handing over Weaving Department to the contractor and the respondent case is that, it is not so that they have deserted from duty and were charge‑sheeted.
6. With this background, all the legal objections on the factual aspect of the case, have inter relations, for the Court to examine whether the charge‑sheet given by the respondent was the subsequent thought' after they had made petitions to the Martial Law Authorities. dated 14‑12‑1983 Annexure‑A or they had deserted from duty or their case is correct, that it was due to the fact that contract was given to the contractor of Weaving Department.
7. In this connection I have to refer the evidence, the documents the applications, complaints made to the Labour Director as to the clear picture of the case. Each applicant has examined himself. From the side of the respondent, Respondent has examined Mr. Shamsul Hassan Jafri, Assistant Director Labour, Mr. Javed Labour Officer of the company. They have cross‑examined on the respective points.
8. This is also an accepted fact that even if this Court is to take this view that they were charge‑sheeted on the ground of absence from duty, which is not the case of the applicants, the charge‑sheet have resulted in ex parte decision. In other words it is not a decision on the merits. The case of the respondent is that in spite of the services they have failed to participate. They have no alternative but to proceed ex parte. Each one charge‑sheet has been placed on the record showing the date of absence from duty and so also in the case of Muhammad Yousuf who refused to obey the order.
9. First application which is made by the applicants to the Martial Law Authorities Annexure‑A gives the background. In the opening paragraph it is stated that the management has determined to hand over the Weaving Department to the contractor and to terminate services of permanent workers ‑from the industry. In the same paragraph it is stated .that the workers who have been working temporarily or have worked one year have already been removed. In the second paragraph they have also stated that the management of Firdous Weaving Mills like other mills have decided to give Weaving Department on contract and, therefore, their action is mala fide and based on dishonesty. This application is, dated 14‑12‑1983, the date of removal is shown 21‑12‑1983 and likewise in respect of other workers 8th January, 1984 or 12th January, 1984 and the application is filed in the Court on 6‑3‑1983 and the grievance notice which they have made is 19‑12‑1983, in case of Muhammad Yousuf, by Naseem Gul on 12‑12‑1983 by Ali Bahadur on 15‑1‑1984 by Sirajul Haq 15‑1‑1984 by Muhammad Qayum 15‑1‑1984, by Johar Shah on '1‑1‑1984. These are that dates, of the representation of the grievance, the date of removal, the date of petition in the Court. It is also the legal requirement that if applicant files application in the Court under section 25‑A he is to bring the notice of grievance within three months of the date on which cause of action arose. The cause of action arose on 21‑12‑1983 in respect of workers Muhammad Yousuf, Wasil Khan, Naseem Gul and Johar Shah. Within three months they had to give the notice. If no reply was received within 15 days they had 2 months from the date of the non‑reply, from the employer. They have filed application in Court on 6‑3‑1984, from this calculation, it appears that they were in time and also other workers whose services were terminated in January, 1984 or 12th January, 1984 they were also in time.
10. But this removal has not been accepted by the respondent. Their case is quite contrary.
11. Subsection 10 provides that for the purpose of this section 25‑A workers having common grievance can make joint application in the Court. If this proviso is resorted to and if the Court accepts their stand that they all have the same cause of action they were removed and this desertion of duty or the disobedience of the order is the subsequent thought, then their application is also maintainable.
11. Respondents have not accepted this position and have contended that they had different cause of action on the basis of charge‑sheet. There is no such matter like handing over of contract to contractor to the year 1983.
12. During the evidence, Ali Bahadur who is the applicant in this case was re‑examined in the interest of justice on the request of the party concerned and the respondents had the opportunity to confront him. In cross‑examination certain points are for the clarification.
13. Mr. Ali Bahadur states that he is employee of the contractor. The name of contractor is Mr. Mannan The first contractor was Taj Muhammad. This contract was given in November, 1983. In cross‑examination he had disclosed that he has not made any mention in the application and affidavit that contract was given November, 1983. He has no documentary evidence to show that contra was given in 1983. The Court has also referred the evidence of Labour Officer of the Mill. Labour Officer has denied completely that weaving Department was given on contract from December, 1983 to contractor. He has also denied that charge‑sheet was first time given after the grievance notice given by 'the applicants. He has also denied that they came to resume duty but they were not allowed. He has referred the letters of the Labour Department and also the reply R‑1 and R‑2. He has also seen the cards which contractor had issued. According to him these cards are not issued by the contractor Annexure R‑3. He has denied that he has never seen any such kind of card in the mill.
14. This is also important to note here, that the question put by the applicants counsel to the Labour Officer is definite that contract was given on 17‑12‑1983.
15. R‑3 is the card which was shown to the Labour Officer of the mill. This card is known as Firdous Textile Contractor daily wages card. Unfortunately this‑has been denied by the Labour Officer himself, but there is a clear print on the card that it is the Firdous Textile contractor's card.
16. The Court has also referred further evidence of Mohib Habib. He is the Factory Inspector of the Director Labour Malir Karachi. He has stated that Meeting was called on 21‑12‑1983 in connection with the complaint of the workers. Meeting could not be held and was postponed on the request of the management. He advised the management vide his letter, dated 1‑1‑1984 to take the workers on duty but there was no compliance. It was first time, by the letter of the 5th January it was known that the management gave the impression that Muhammad Yousuf, Wasil Khan, Naseem Gul and Johar Shah are not coming to their duty. In cross‑examination the witness disclosed that the management informed in the meeting that complainant party is not coming on duty and thereafter on 4‑1‑1984, the management intimated about the charge‑sheet of these persons. The specific question was put to the Department's witness whether the charge‑sheet file is with them to show to the Court for the Court satisfaction. There was no satisfactory reply. When the witness was again recalled to produce the concerned file, witness had stated that the copies of charge‑sheet have already been produced which are AW/4 to AW/10. In other words, there was no compliance of the Court's directives and the Court wanted to see the file concerned, of the department for the Court's satisfaction, whether the copies of the charge‑sheet were sent by the management to the Labour Directorate at the time when the complainant party had made application to the Martial Law Authorities or even to the Directorate Labour a complaint about their removal.
17. With this background of the evidence and the evidence of the Factory Inspector it appears to the Court that neither the Factory Inspector took any efforts to examine this position in the Textile Mill at the time of complaint whether the management had given the contract to the contractor or the contract was first time reduced in writing from January, 1985 of which they have produced the printed document. The Court also further refers the evidence of Masood Ahmad, who is Personnel Officer of Firdous Textile Mills". He has stated that there are two different establishments namely Firdous Textile Mills and Firdous Spinning Mills. Both factories are registered under the Factories Act. There is another Mill known as Firdous Textile Mills Faisalabad. The same witness has disclosed in cross‑examination that the name of this Mill is Firdous Textile Mills Limited. Firdous Textile Contractor's Mill as shown in card No. R‑3 is not the name of Factory. Card is neither, issued by the management, nor by the contractor of the mill." Respondent has made no attempt to examine the contractor to prove the bon fide of the evidence of Masood Ahmed to show that the card produced by Ali Bahadur is not the same card issued by the contractor.
With these defects of the evidence of the respondent, the Court has reached this conclusion whether the version of the applicants is true that they were removed and the charge‑sheet was issued subsequently after the complaint made to the Martial Law Authorities and the Labour Directorate or they had deserted from duty, as they have claimed. The management has made of course an attempt to show to the Court that the card was not issued by the contractor. This was the main hurdle which they had to cross over but the evidence of Mr. Masood Ahmed is not reliable for the reason that if there was any bona fide in the evidence of this witness the present contractor should have been examined by the management to show bona fide. The burden of proof was heavy on them when card R‑3 was produced 'before the Court which shows the clear print, as Firdous Textile Contractor Mills. The month is shown November, 1984. The respondent also in the evidence has made an attempt to show that Mr. Ali Bahadur is not an employee. In the written statement they have shown that he was charge--sheeted for misconduct. This fact they have also brought to make improvement to destroy the evidence that he was not employed with the contractor and his evidence should not be accepted as true. The official witness of the Labour Department have also not come clear with the statement that there was no contractor in November, 1983. They have tried to show their nutality in the evidence on the reply of the management that the workers had deserted from. duty and at the same time they have also produced the complaint to show that meetings were called and the management was advised to take them on duty. They did not make any attempt to examine the mill and satisfy themselves about the accuracy of the allegation of the workers that no such contract was given to the contractor in 1983. The application made to the Martial Law Authorities by "tie workers also further confirms 'the fact that if the workers could not have the grievance of the Weaving Section to be given on contract which was contrary to their wishes, they would not have moved application to the Martial Law Authorities or complaint against the management. If the workers would have deserted from duty, they would have not made such application to the Material Law Authorities because obviously they might have accepted that the management may inform the authority concerned about their descertion from duty. So number of application made to the Martial Law Authorities with the signatures of the workers about their forcible termination and the failure of the management‑to reply to the Martial Law Authorities confirms the Court's belief that the workers had definitely the grievance that the management was removing them and, therefore, they made their grievances for redress. The grievance is not only made to the Martial Law Authorities but also to the Directorate of Labour for redress.
Further, the Court was not shown the concerned file to satisfy Whether the copies of the charge‑sheets were given to the Labour Directorate on the respective days of their absence from duty to show that what they had stated before the Matrial Law Authorities was not correct. It does not appeal also, to the reason as well that all should desert from duty and make complaint to the authorities. Further the Court has also referred their grievance notice given to the management. If the management's intention was bona fide the management would have replied to the grievance notice that they had deserted from duty. They should come and resume and face the charge‑sheet but this circumstance is also silent.
The Court, therefore, is of the view that the handing over of Weaving Department to the contractor may be based on oral contract and when the workers have made petitions to the Authorities they have been faced with the charge‑sheets and the new document has been prepared of the contract showing the date from January, 1985 and not earlier as stated by the workers in the month of November, 1983.
In the result the impugned orders of dismissal in the ex parte decision, firstly is not based on merits, secondly it provides no justification that they have deserted from duty. Accordingly the applicants are reinstated. Grievance Notice given by them was rightly given. If there was no reply from the employer for the resumption of their duty, it was assumed that they were removed and gate stopped and had justification to come in the Court for, redress of their grievance. However after the reinstatement if the management still desires to give them charge‑sheet the applicants should face the disciplinary proceedings, if their conscience is clear and put up the case in proper manner and justify that their version was correct and they were forcibly removed. The enquiry under Standing Order 15 pre‑supposes the hearing of any factual aspect on merits. The Court, thereafter will examine whether the finding of the Enquiry Officer was correct. Presently in the evidence the Court has examined the contentions of the applicants which has been found correct subject to further clarification by the enquiry proceedings. The official of the Directorate of Labour will be the important witness to give his evidence after the inspection that there was contract or there w4s no contract. The back benefits for the period from 21‑12‑1983 in respect of all the workers from 8th and 12th January, 1984 as they have claimed the date of removal which depend finally after the Enquiry Officer has decided the matter and the Court has re‑examined the matter on the merits. Any observation regarding versions of the applicants have been based on the evidence recorded in the Court. The Enquiry Officer shall be at liberty to give his fresh decision on the evidence and as desired by the Court on the merits. The Labour Directorate official as directed by the Court will be examined before the Enquiry Officer producing their inspection report for the Court to have an idea, as to the above issues involved .to do justice to both the sides in the interest of justice. The Court also further directs the parties that no Enquiry Officer will be changed, if there was any protest by the workers it shall be recorded in the diary sheet for the Court to have the full idea of the conduct of proceedings regarding back benefits that they have suffered litigation, the result of the enquiry is the decisive factor either to compensate them or to face the legal consequences.
A. E. Order accordingly.
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