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Petitioner: MESSRS TEXTILE CORPORATION OF PAKISTAN; LTD, HYDERABAD VS Respondent: SHAUKAT ALI AND 9 OTHERS
Court Name: Appellate Tribunal Inland Revenue Judge(s): Inamullah Khan Title:MESSRS TEXTILE CORPORATION OF PAKISTAN; LTD, HYDERABAD vs SHAUKAT ALI
AND 9 OTHERS Case No.: Appeals Nos. HYD-213 to 222 of 1969 Date of Judgment:1970-01-24 Reported As: 1970 PLC 386 Result: appeal is dismissed Judgment ORDER These are 10 appeals against the orders passed by the learned Chairman of the Second West Pakistan Industrial Court, Karachi, on 30th September 1969. The learned Chairman gave a detailed order in Application No. 514/68, under section 37(2) pf the West Pakistan Industrial Disputes Ordinance, 1963 (herein--after called the repealed Ordinance), and short orders in the other 9 applications. The reasons for dismissing the 10 applica--tions are given in Application No. 514/68. I propose to dispose these 10 appeals by this order. 2. The facts necessary for the disposal of these appeals are very simple and briefly put are these. 3. The appellant, Textile Corporation of Pakistan Limited, made applications under section 37(2) of- the repealed Ordinance seeking permission to dismiss the respondents; who are their employees, on, the ground of misconduct within the meaning of Standing Order 15 of the Industrial and Commercial Employ--ment, (Standing Orders), Ordinance, 1968. The respondents were alleged to have committed different acts of misconduct. They' were, according to the appellant, charge- sheeted, tried and found guilty by the Enquiry Officer for the various acts of misconduct. The necessity for obtaining permission of the Court case as the respondents were office-bearers of the Union. 4. The respondents denied to have committed any act of misconduct. They alleged that the Workers' Union raised an industrial dispute on 3rd June 1968, and the conciliation proceedings failed on 17th June 1968, and there after false allega--tions were made against the office-bearers of the Union to victimize them. They also alleged; in substance, that the enquiry was not fail.
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5. On behalf of the appellant, Mr. Naeem Shaikh who is the Manager of the appellant-Company, gave an affidavit on 21st October 1968, whereby he submitted the documents relating to the respondents. These documents are charge-sheets, Enquiry Reports and explanations of 'the respondents. Mr. Naeem Shaikh was not cross-examined by the respondents, as they were absent on the date fixed for his cross-examination. On behalf of the respondents, they filed their affidavits denying the allegations of the Management. They were also cross-examined by the Management. 6. It would be useful to reproduce the finding of the learned Chairman of the Court. It runs as under:- "Weighing the evidence of the parties, we come to an irresistible conclusion that the charges against Shaukat Ali and the, other aforesaid persons- are not based on facts. No impartial enquiry was held against any one of them. All of them are office-bearers of the registered Trade Union which raised Industrial, Dispute No. 20/68, against the Management. The Management being too eager to get rid of the office-bearers of the Union did not wait even for a few days- before laying their hands on those office-bearers. They were simultaneously suspended and there is nothing on record to show if their suspension was in accordance with the Labour Laws. They had already been suspended before these applications were submitted in Court and on that score alone, the approach of the Employer being not in accordance with Law is liable to be rejected. Conduct of the applicant in dealing with the said parsons smells of victimization and betrays a glaring example of resort to unfair labour practice." 7. Before I consider these appeals on merit, I would like to dispose of the preliminary objection of Mr. A. Majeed the learned Representative for the respondents; that no appeals lie. 8. These appeals were filed under section 16 of the repealed Ordinance. Admittedly, the appeals were maintainable under section 16(1)(c) of the repealed Ordinance against- decisions under section 37 of the said Ordinance: The Ordinance of 1968 was repealed on 13th 'November 1969. Under section .37(4) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance). "All decisions of a Labour Court, other than awards referred to in subsection (3) -of this section, and sentences referred to in subsection (3) of section' 36, shall be final and shall not be called in question in any manner by or before any Court or other authority". Mr. Majeed, the learned Representa--tive for the respondents, contended that an order on an application under section 37(2) of the repealed Ordinance being a decision became final under the present Ordinance, i.e. the Industrial Relations Ordinance, 1969, and therefore, the appeals are not maintainable. 9. As the question raised was of some importance, issued notices to a number of person practising before me to express their views either for or against the proposition of maintainability, of appeal, in the circumstances I have mentioned above. 10, Chaudhry Altaf Hussain and Mr. Mahmood Zaman, the learned Advocates at Lahore, contended that no appeal lay. Messrs M. A. Khan, Mahmood A. Ghani, Fakhruddin Farooqi and Wasiullah Qureshi, at Karachi, and Mirza Nazir Ahmad at Lahore, submitted that the appeals were maintainable. 11. It is a fundamental rule that enactments are generally --to be construed as prospective. There is a presumption that., it speaks only as to the future. Messrs Altaf Hussain and Mahmood Zaman, while conceding the above rule, contended that the Legislature has expressed contrary intention in section 67 of the Industrial Relations Ordinance, 1969, so as to deprive a person- from filing appeal against a decision given under section 37 of the repealed Ordinance. In order to appreciate the contention of the learned Advocates, it would be necessary to reproduce the relevant provision of section 67 of the Ordinance. The relevant provision of section 67(2)(b) reads as under:- "(a) --- --- --- --- --- --- --- --- --- (b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced, or other actions taken under any law shall be deemed to
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have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may, under the corresponding provisions of this Ordinance, to the extent of consistency therewith." 12. It was submitted by the learned Advocates in short that the proceedings commenced shall be deemed to have been taken under the corresponding provisions of this Ordinance to the extent of consistency therewith. In other words, it was contended that as no appeal is now maintainable under section 37 of the present Ordinance against a decision given under the repealed Ordinance, the appeals are not maintainable. The pending proceedings are saved; it was urged, only to the extent that they can be pursued under the present Ordinance. 13. Whether an Act is retrospective in its operation must be determined by the provisions of the Act itself. There is-nothing specific in the Act-so as to give it retrospective effect. Section 1(4) of the Ordinance reads as under :- "It shall come into force at once.'' If the intention of the framers of the Ordinance was to give it retrospective effect, it would have been so mentioned in section 1(4) of the Ordinance. Instead of stating that it shall come into force at once, it would hark been stated therein that it would be deemed to have always existed. It was conceded that the Ordinance does not specifically make it retrospective. It was contended, however that it is by necessary intendment, which is clear from section 67(2)(b) of the Ordinance that the Court should construe that pending proceedings have not, been saved I cannot read any sue intention in section 7(2)(b) of the Ordinance. It visualise that at the time when the Industrial Relations Ordinance, 1969, will come into operation there will be a number, of matter pending before the Labour Courts and the Tribunal.There will be some matters under the repealed provision of law, which can correspond with the present Ordinance, while the others may not correspond with the provisions of the present Ordinance. In order to avoid confusion, the framers of the Ordinance made it clear that so far as proceedings which commenced under certain provisions of the repealed Ordinance can correspond with the present Ordinance, they should be deemed to continue under the provisions of the present Ordinance. The framers of the Ordinance have purposely avoided to say anything as to what is to happen about matters which commenced much before the present Ordinance. If the, intention was that the proceedings which cannot be pursued under the present Ordinance would abate the same would have been mentioned in section 67(2)(b) of the Ordinance by adding a few words that and the "rest shall abate". 15. All decisions under section 37(2) of the repealed Ordinance were subject to appeal. If a litigant is deprived of his right to appeal, it would mean that the decision under section 37(2) of the repealed Ordinance became final. In my view, if the right of appeal is taken away against an order which is appealable, the order should be deemed to be Eton-existent. 16. It would be worthwhile to reproduce a passage from the Interpretation of Indian Statutes by Swarup; p. 389, which runs as under:- "Retrospective laws are no doubt prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried upon the faith of the then existing law. The general rule is that any new law that is made should ordinarily affect future transactions, not past ones, because, as Earle, C.J. pointed out in Midland Railway Co. v. Pye. 'It manifestly shocks one's sense of justice that an act legal at the time of doing it should be made unlawful by some new enactment'." 17. These appeals were filed much before the present Ordinance came into force. If they had been disposed of before 13th November 1969; it could not have been contended that no appeal lay. A vested right cannot betaken away without there being a specific provision to that effect or by necessary intend meat. The framers of the Ordinance cannot be deemed have intended to deprive a number of persons to enforce' certain vested rights without so mentioning it. The object of the
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present Ordinance is the avoidance and settlement of as differences or disputes arising between the workmen and their employers". A number of appeals are pending where the employers have been grated permission to dismiss the workmen. If the appeals fail on the ground that a vested right has been taken away by the present Ordinance, it cannot fulfil the object for which it has been promulgated. 18. I would only now reproduce the principle laid down by the Privy Council in the Colonial Sugar Refining Co. Ltd. v. Irving, which has been approved of by their Lordships of the: Supreme Court of Pakistan, in the case of Sudej Cotton Mills Limited, Okara (PLD 1966 SC 475). The relevant portion of the observation of the Privy Council in the case of Sutlej Cotton Mills Limited, Okara, runs as under:- ---As regards the general principles applicable to the: case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it he more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellant would be entitled to succeed. -The Judicial Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a, very different thing from regulating procedure?--- 19. I would hold, upon the principles laid down in the Privy Council and approved of by the, Supreme Court of Pakistan, that the appeals are maintainable. 20. I now proceed to dispose of the appeals on merit. 21. It was contended by Mr. Mahmood A. Ghani that the conclusion of the learned Industrial Court that the cases were consolidated is not supported by the order-sheet. The learned Court has come to the conclusion that "In the absence of specific order to that effect, it is doubtful if evidence recorded in one file or an affidavit fled in one case can be legally used as evidence or affidavit in other cases which are neither consolidated with that case nor they are between the same parties nor those cases have arisen out of the same cause of action". The question is as to whether the order-sheet supports the conclusion that the cases were not consolidated so that the evidence in the one case may not be read in the other. In this connection, reference may be made to the order-sheet in Application No. 515/68. The order-sheet of 14th October 1968, reads as under Messrs Masood Mirza for the applicants and Shamim Wasti for the respondents are present. Mr.Naeem Shaikh undertakes t6 file his affidavit covering all the II applications, within 2 days. The case is fixed for cross-examination of the deponent by Mr. Wasti on 26-10-1968, at Hyderabad." 22. It is clear from the above order-sheet that Mr. Naeem Shaikh was filing only one affidavit covering all the applications tinder section 37(2) of the repealed Ordinance, which were filed by the appellant. The affidavit of Mr. Naeem Shaikh was to be read an all the applications. The contention of Mr. Ghan.i that the cases were consolidated is further supported by the order of the learned Curt itself, in the application of Abdul Ghafoor, respondent. It reads as under:- "Statementof Shamim Wasti, Representative of the respondent. The evidence of Abbul Ghafoor, respondent, is closed. This case is similar in nature to some of the connected cases awaiting decision before this Court in which Written Arguments have already been filed. I, therefore, do not wish to address any argument in this case. The arguments filed in the other connected cases may also be read in this case." 23. Down below this statement dated 18th September 1969, the learned Court has written as under:-
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- "Statement of Mr. Masood Mirza, Representative of the applicant concerned on S. A. No arguments are necessary to he addressed in this case because the facts of this case are similar to the other connected cases with which it has been consolidated and in which Written Arguments have already been filed." 24. It would appear that the learned Representatives of the parties took it for granted that the cases were consolidated. The learned Court also did not make any comment while taking down the statement of the Representatives of the parties that the cases were consolidated. In these circumstances, I would hold that the cases were consolidated and that the affidavit produced in one case was to be read as affidavits in the other cases. On the side of the Management there is the affidavit of Mr. Naeem Shaikh alone. This affidavit, I would hold, had to be read in all the cases before the learned Court. What is the evidentiary value of the affidavit of Mr. Naeem Shaikh is a different matter. This would be considered while I am dealing with the individual cases of the respondents. 25. There are one or two points, which I would like to clarify before I proceed to discuss the merit of individual cases. It was contended by Mr. Ghani, the learned Representative for the appellant, that it was beyond the province of the Industrial Court to sit as a Court of Appeal over the decision given by the Domestic Enquiry Officer. It has been observed in a number of cases by the Supreme Court of Pakistan that it is not the province of the Industrial Court to go into the merits of the allegations before the domestic enquiry, but that its jurisdiction was only to see if there was a fair enquiry and the employee was given an opportunity to explain the charge levelled against him. In this connection, reference may be made to:--- (1) Sui Gas Transmission Company Limited 1960 PLC 80. (2) Karnaphully Paper Mills Limited 1961 PLC 991 and (3) Dalmia dement Limited PLD 1958 SC (Pak.) 153. 26. In all these cases it had been held that the jurisdiction of the Industrial Court was confined to see if there was a fair enquiry and the employee concerned was given an opportunity to explain the charges. The principle laid down by the Supreme Court of Pakistan does not, however, mean that in no case can Industrial Court go, into the merit of the enquiry held by the domestic Tribunal. The exception to this rule is pointed out by their Lordships of the Supreme Court in the case of Dalmia Cement Limited. It was observed in that case that if the employee alleged malice against the Management, the Tribunal could go into the merit of the allegations made before the domestic Tribunal. Their Lordships observed, at page 166 of the case referred to above, as under:- ---In doing so it dealt with the case as if it had to decide on the merits of the charges and the explanation when in fact its jurisdiction was only to see if there was a fair enquiry and the employee concerned was given an opportunity to explain the charges, as there was no specific allegation of malice. If malice had been alleged specifically the 'Tribunal could have gone into the merits of the allegation, but as it is, it went beyond its jurisdiction.--- 27. It was next contended by Mr. Ghani that the principles of the Evidence Act do not in term apply to the proceedings before the Industrial Court. There is force in, this contention, but it does not mean that the Court in the discharge of its 0duty should act on material which has not been properly brought before it. It would be against the principle of natural justice, for instance, to act on hearsay evidence. In this connection, reference may be made to the case of Messrs Dalmia Cement Limited. It was observed at page 166, as under:-- "As pointed out by my Lord the Chief Justice is the Remington Rand's case an Industrial Tribunal adjudicates on Fights and liabilities has most of the indicia of a Court and exercises judicial powers of the State. It is no doubt not strictly bound by the rules of-evidence but that does not mean that it could act' on mere conjecture and its own ideas of social justice. In the discharge of its duty of
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adjudication it should act on material properly brought on record and law applicable to the matters in dispute." 28.Similar observation was made by the Supreme Court of Pakistan in the case of Bannu Woollen Mills(1966 PLC 306). 29. It was contended by Mr: A. Majeed, the learned Repre--sentative for the respondents, that the documents produced through the affidavit of Mr. Naeem Shaikh did not conform to the provisions of the Evidence Act and in the absence of formal proof these should be rejected. I have already held that the Rules of Evidence Act do not apply specifically to the proceedings before the Industrial Court. This, however, does not mean that principles which are in conformity with fairplay, equity and good conscience, should not be enforced. Under the Evidence Act, for instance, secondary evidence is admissible only if it is established that primary evidence is not available. This is a principle, which a Court administering justice, cannot ignore. In this connection, reference may be made to the observation made by the Supreme Court of Pakistan in the case of the Province of East Pakistan (PLD 1964 SC 636). The observation rues as under ---The rules of evidence whether in a suit or a writ proceeding are the same. Ordinarily evidence has to be adduced viva voce but where, as in a writ proceeding, a summary procedure is adopted parties are permitted to give evidence by affidavit. Similarly where documentary evidence is required the document must be proved in one of the ways mentioned in the Evidence Act, unless the document is admitted by the adversary. The documents produced in Court could thus have been looked into by the High Court only if they had been admitted by the respondents in the writ petition. Not only did they not do so but they failed to put the, petitioner therein to strict proof of even the documents filed along with his affidavits. Strictly speaking in the absence of such formal- proof even those documents were not admissible in evidence--- 29. In the instant case, Mr. Naeem Shakih stated in Para , 4 of his affidavit that he was submitting the necessary documents to substantiate the contents of his application. The documents he submitted before the Court related to the respondents in the shape of charge-sheet, explanation and enquiry report. The respondents against whom an enquiry was held do not deny the charge- sheet, the enquiry and the enquiry report. These documents therefore, cannot be rejected on the, ground that they have not been properly brought on-the record. The evidentiary value of these documents is, a different matter. 30. The respondent, Shaukat Ali was charge-sheeted on 20th June 1968, under Standing Order 15(4), to the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), for having given a beating and abused Zahoor Ahmad, Ring Jobber, along with Rafiuddin and Muhammad Zaman. The appeal against Shaukat Ali, respondent, must fail on the ground that the enquiry against him was not fair. Shauk;tt Ali in his reply before the Court in para. 8, stated that the enquiry proceeding held on 17th July 1968, was illegal and partial, as the Assistant Manager Mr. Naeem Shaikh, now the Manager, was present in the room of the Enquiry Officer and that he bad been interfering effectively against him throughout the enquiry proceedings. Shaukat Ali further stated that Mr. Hasan Zaheer, the Enquiry Officer had promised to fix a date to enable him to produce his witnesses, but he did not do so. It is noteworthy that Mr. Naeem Shaikh did not challenge the statement of Shaukat Ali in his affidavit dated 21st October All 1968. Moreover, there is no evidence on the record to rebut the allegation of Shaukat Ali that the Enquiry Officer had not promised to give him a date to produce his defence witnesses. Mr. Ghani, the learned Representative for the appellant, however contended that it was the duty of the respondent to be ready with his witnesses. It is true that the respondent should have brought his defence witnesses on the date fixed for enquiry. It was however, open to the Enquiry Officer to fix another date for the production of defence witnesses. Shaukat Ali stated that the Enquiry Officer had so promised. In the absence of any rebuttal of the allegation made by Shaukat
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Ali, I would take it that the Enquiry Officer had' promised to give a date for production of defence witnesses to the respondent, but he closed the case without affording him an opportunity to do so. I would, therefore, maintain the order passed by the learned Chairman of the Industrial Court. 31. In the present case, all the respondents have alleged vindictiveness on the part of the Management. Mere allegation is not sufficient to hold that the Management started proceedings for misconduct against the office-bearers, of the Union, because it wanted to punish them for their Union activities. In the present case, however, there are circumstan6es which, though not sufficient to hold that the proceedings against the respondents were the result of vindictiveness on the part of the Management, but they are sufficient to raise suspicion to scrutinize the proceedings before the domestic enquiry. One of the circum--stances is that the proceedings were started against most of the office-bearers of the Union immediately after the conciliation proceedings failed. In the second place, the respondents were suspended for more than 4 days. There is nothing on the record to show in the case of many of the respondents that the suspension order did not continue for more than 4 days at a time. These circumstances have raised suspicion in my mind, with the result that I have looked into the proceedings before the domestic enquiry. One thing is very noticeable that Zahoor Ahmad, Jobber, made 'different statements to suit the occasion. I have, therefore, considered his that statement which was more favourable to the…
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