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Writ Petition No. 232 of 1961, decided on 7th May 1962.
Ss. 2 (h) & 5 Industrial dispute‑Connotes "collective bargaining"‑Grievance of individual worker not "industrial dispute" unless made into common cause by all or by effective number of colleagues.
Asrarul Hussain with Abdul Haque for Petitioner.
Md. Fazlul Karim for Respondents.
SIKANDAR ALI, J.‑
This application by one Ataullah is for a writ of mandamus directing the respondents, i.e., the Pakistan Industrial Development Corporation and the Manager Zeal Pak Sugar Milis. Dewanganj, Mymensingh, to cancel, withdraw and rescind the order dated the 25th July 1960, passed by the latter purporting thereby to terminate the services of the petitioner as a Mechanic in the said Sugar Mills.
2. The short and simple case of the petitioner is that while employed as a permanent Mechanic in the aforesaid Mills, governed as per terms and conditions of appointment, by the appropriate rules and regulations of the Corporation enforced from time to time, the respondent No. 2 illegally terminated his (petitioner's) service by his aforementioned order running as follows: --‑
"Ref; 4207/PF‑75 25th July 1959.
Mr. Ataullah,
Mechanic
2 P/M.
Sub: --‑Termination of service.
Your services are no longer required with effect from 26‑7‑60, as per clause "H" and "I" of section 13(6) of the Standing Orders Ordinance, 1960.
You are therefore, advised to submit clearance certificate to the Accountant In charge, 2 PSM and collect all your dues against the project.
This has got approval of the Chairman, P. I. D. C.
(Sd.) M. K. Siddique,
Manager.
25‑7‑60."
The petitioner thereafter submitted representations and appeals before the higher authorities but to no purpose whereon he filed the present application for writ.
4. Under the Industrial and Commercial Establishments (Standing Orders) Ordinance, 1960, the date and commissions coming within the purview of the provisions referred to in the above Order shall be treated as misconduct and section 13, subsection (4), thereof provides that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged mis conduct and is given an opportunity to explain the circumstances alleged against him. Relying upon these provisions the petitioner claims that the above quoted order purporting to terminate his services is illegal inasmuch as he was not apprised of the charges against him nor given any opportunity to offer his explanation.
5. An affidavit‑in‑opposition sworn to by Mr. Abul Qasim, Co‑ordination Officer (Sugar) Pakistan Industrial Development Corporation, Regional Officer, Dacca, has been filed on behalf of both the respondents. There is no dispute regarding the material facts averred by the petitioner. The main point sought to be made in the said affidavit is that the impugned action was really taken under section 12 of the Ordinance and not under clauses (h) and (i) of section 13 (3) as inadvertently mentioned by the Manager, i.e., respondent No. 2, in his order in question. It has further been ascerted (1) that the petitioner having been an employee of, and also having been dismissed by, the Pakistan Industrial Development Corporation, this Court has no jurisdic tion to entertain the present application for writ and (2) that the petitioner not having availed himself of the remedy provided under the special statute, to wit, the Industrial Disputes Ordin ance 1959, is not entitled to invoke the writ jurisdiction of this Court.
6. It is not in dispute that the petitioner was a permanent employee under the respondents at the relevant time. The employment of an employee can be terminated summarily under section 12, subsection (1), which provides: --‑
"For terminating employment of a permanent workman, notice in writing shall be given either by the employer or the workman‑one month's notice in the case of monthly rated workmen and two weeks notice in the case of other workmen. One month's or two weeks' pay, as the case may be, may be paid in lieu of notice."
7. He may also be dismissed for misconduct constitute by any of the acts or omissions enumerated in section 13 sub section (3) which includes: --‑
(h) riotous or disorderly behaviour during working hours at the establishments or any act subversive of discipline,
(i) habitual negligence or neglect of work.
8. This is however subject to the provision of subsection (4), which lays down
"No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the Manager of the establishment or where there is no manager, of the employer is required in every case of dismissal and, when circumstances appear to warrant it the manager or the employer may institute independ ent enquiries before dealing with charges against a workman."
9. In the present instance indisputably no charge was framed nor any opportunity given to the petitioner to explain the circumstances alleged against him. There has, therefore, been a clear contravention of the mandatory provision of the law, just quoted above. In order to get over this it has been argued that it was really a case of termination of service under section 12(1) and not of dismissal under sections 13(3) (h) and (i) as wrongly mentioned in the order. This argument, however, does not appear to us to be at all acceptable nor can we see our way to subscribe to the proposition that mention of sections 13(3) (h) and (i) instead of section 12 (1) was a mere procedural mistake, in spite of which termination of the petitioner's services as such shall stand good as being covered by the inherent right of employer statutorily recognized under section 12(1) and that the petitioner may at best claim c‑to month's pay in lieu of notice as prescribed therein. According %, us on the other hand, these contentions rather lend support to the petitioner's case that the impugned order is bad and as such liable to be recalled. The man has been condemned unheard in utter disregard of the law applicable to his case and thrown out handicapped with a stigma of misconduct which could be done only after he had been apprised of the allegations against him in writing and failed to explain away those allegations in spite of opportunity afforded to him to that end, and since that has not admittedly been done, it does not lie in the mouth of the respondents to contend that even then the termina tion shall take effect under section 12 (1) and that all that the petitioner may complain of is the denial of one month's pay in lieu of notice to which he was entitled under that provision and not the said stigma branded on him. In our opinion, therefore, the contentions urged on behalf of the respondents have no fore‑ or substance and that the impugned order terminating the service of the petitioner is bad in law.
10. It is contended on behalf of the respondents that as tile petitioner was an employee of, and has also been dismissed by, the Pakistan Industrial Development Corporation, which has its head office in Karachi, this Court has no jurisdiction to entertain the application for writ filed by him. It is not disputed that the petitioner was appointed by the respondent No. 2, i.e., the Manager of the Mills, and in spite of our query no rule or order could be placed before us to show that the latter in spite of his being the appointing authority was not competent to dismiss an incumbent of the post held by the petitioner. Moreover the impugned order, as has already been cited above, appears as a matter of fact to have been issued by respondent No. 2. The order no doubt contains a Dote that it had the approval of the Chairman, Pakistan Industrial Development Corporation, but from this it cannot be said to follow that it was not respondent No. 2 who was the dismissing authority or actually dismissed the petitioner. Moreover, even if it were assumed that the petitioner was dismissed by the Chairman, that also cannot oust the jurisdic tion of this Court inasmuch as the Pakistan Industrial Develop ment Corporation too has been made a party. It is true that it has been imp leaded at its Karachi address but in view of the fact that the Corporation has a Regional Office at Dacca and has actually entered appearance along with respondent No. 2, we are not prepared to regard the said misperception as to address only as a ground affecting or ousting the jurisdiction of this Court. Thus in any view of the matter the objection as to jurisdiction does not appear to have any substance.
11. It has next been contended that the petitioner, if he felt aggrieved at the action of his employers, ought to have approached the special forum set up under the Industrial Disputes Ordinance 1959, for redress, if any, and that not having availed himself of the remedies available to him under the said Ordinance, he is not entitled to maintain this application for a writ. Having examined the relevant provisions of the Ordinance we fail to see how an individual worker can initiate a proceeding there under or how the cause of an individual worker can be said to amount to an "industrial dispute" unless that is made an issue, i.e., ail common cause, by the entire body of workers or a group of them and thus threatens to affect the working of the establishment concerned. Such a contingency did not evidently develop in the present instance, and that is also shown by the very fact that the Conciliation Officer, who is charged with the duty of taking out on his own initiative appropriate proceedings, whenever an A industrial dispute exists or is apprehended, did not even take notice of this matter; presumably because there was no apprehen sion of any trouble amounting to an "industrial dispute". An industrial dispute connotes collective bargaining, which presupposes identification of at least a sizable number with the cause leading to the dispute and in that view of the matter, too, the grievance of an individual unless made a common cause by all or an effective number of his colleagues cannot be said to be an industrial dispute attracting the provisions of the aforesaid Ordin ance for its settlement. The Ordinance thus provided no remedy for the petitioner and cannot, therefore, stand in the way of his approaching this Court in its writ jurisdiction.
12. No other contention has been used and hence in view of our findings above, the application must‑ succeed.
13. The Rule is, therefore, made absolute with costs which we assess at three Gold Mohurs. Let a writ of mandamus issue upon the Pakistan Industrial Development Corporation, Regional Office, Dacca, and the Manager, Zeal Pak Sugar Mills, Dewanganj, Mymensingh, directing them to cancel, withdraw or rescind the impugned order dated the 25th July 1960, purporting to terminate the services of the petitioner.
‑---I agree.
S. B./A. H.
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