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Petitioner: Messrs GEARS HOBBING LTD. through Factory Manager and others VS Respondent: ABDUL JUDGMENT
Court Name: Balochistan High Court Judge(s): Muhammad Nadir Khan Title:Messrs GEARS HOBBING LTD. through Factory Manager and others vs ABDUL
JUDGMENT
Reported As: 2007 PLC 435 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD NADIR KHAN, J.---This common judgment shall dispose of Review Applications Nos.1 of 2005, 2 of 2005, 3 of 2005 and 4 of 2005 filed in Labour Appeals Nos.14 of 2005, 15 of 2005, 16 of 2005, 17 of 2005 respectively along with Labour Appeals Nos.2 of 2006, 3 of 2006, 4 of 2006, 5 of 2006, 6 of 2006, 7 of 2006, 8 of 2006 and 9 of 2006 involving similar facts, common law points' and are outcome of the show-cause notice, dated 8-4-2000 issued by the Branch Manager Plant of the appellant (hereinafter referred to as the company) to the respondents (hereinafter referred to as the workers) which reads as under:-- "It has been noticed that you are indulging in the affairs of the management and are acting in disorderly manner while leaving the place of duty during working hours, opening the office of Plant Manager and sitting therein, jointly and collectively without observing office discipline and also misusing the official Telephone for private purposes and taking away Official Files and important official papers from the Plant Manager's Office and also taking tea, smoking cigarettes while sitting in the Plant Manager's office during working hour. You have indulged in the affairs of the management, while removing the following workers from their duty places as managed by the production department. {{TABLE}} Name Code No, (1) Sheikh Jaweed Elahi 37
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(2) Syed Mansor Ali 59 (3) Mushtaq Ahmed 29 (4) Badar Zaman 15 {{TABLE}} ' Without permission of the Manager and forcing them to appoint and carry work in Quality Control Department against the wishes of the management which is a gross misconduct. You are disrespectfully ignoring the warning, whereas you are extending threats to the factory management, thus your actions are subversive of discipline, therefore, you are jointly and severally called upon to submit explanation to the above charges with 72 hours thereof failing which disciplinary action will be taken against you according to law." ' The workers submitted their reply, denying the allegations. Simultaneously they asked for the supply of copy of report on the basis of which show cause notices were issued and reserved their right to submit their detailed reply. The company thereafter issued termination letter, dated 31-8- 2000. The workers being aggrieved by their termination, served the company with grievance notices issued by each of them individually but on failure of the company to redress their grievance by reinstating them, filed grievance applications under section 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the IRO, 1969) before Presiding Officer Third Labour Court Balochistan at Hub (hereinafter referred to as the Labour Court). Their applications were dismissed by means of order, dated 30-3-2002 with following observations:-- "The applicant miserably failed to prove that the strength of workers at the time of termination of his service was more than 50 in number. The provision of S.0.15 (4) of Standing Orders Ordinance, 1968 are therefore not applicable and the respondent is not legally bound to hold enquiry etc. Before terminating the applicant from service." ' The workers being aggrieved by the dismissal of their grievance application filed appeals under section 37(3) of IRO, 1969 which were disposed of by means of order, dated 9-12-2003 as the counsel for the parties conceded that the evidence available on the record reflects that when aggrieved workers were removed from service the number of workers of the establishment was more than 50, therefore, the impugned order was not supported by the company. Accordingly, the order, dated 31-8-2000 was set aside. The workers were ordered to be reinstated with effect from 31-8-2000. However, the company was allowed to hold fresh enquiry in the matter, if so desired. ' Record reflects that the workers in pursuance of the order, dated 9-12-2003 of this Court approached the company by means of application, dated 13-12-2003 for their reinstatement in terms of order, dated 9-12-2003 passed by this Court. The company thereafter issued reinstatement order, dated 6-2-2004 which reads as under:- "Reinstatement order ' We refer to the order of the Honourable High Court of Balochistan Quetta, in the Labour Appeal No,11 of 2002, dated 9-12-2003, whereby it was directed to reinstate you in the service of Company. ' We hereby take you in the employment of the Company from the date of your reporting for employment and hereby posted at our transit Ware House, SF Unit No,87 SITE Karachi from the date of your joining, in accordance with Clause No, 6 of your appointment letter, dated 1-12-1992, and on the same terms and conditions . ' You are further directed to report to Mr. M. Farooq Kalia. Assistant Manager Dowood Yamaha Transit Ware House, SF Unit No,87 SITE Karachi with immediate effect. Please note that if you failed to report to Mr. M. Farooq Kalia, Assistant Manager Dawood Yamaha Transit Ware House, SF Unit No,87 SITE Karachi for duty within one week time, we will not be obliged to 'take you in the employment of the Company." ' The workers did not accept their reinstatement in the above terms and served the company with grievance notice, dated 16-2-2004 issued by them individually wherein they prayed as under:--
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"I, pray to your goodself to send me the payees account cheque or pay order in the sum of Rs,3,14,878 for the wages etc., till 9-12-2003 and Rs,19,800 towards the monthly wages till 28-2-2004. ' I further pray that I be reinstated on the machine job on which I was employed at G.H. Ltd. HUB plot No,C-300 to C-294, in compliance of the Order, dated 9-12-2003 passed by Honourable High Court, Quetta ()." ' The company refused to redress the grieBalochistan vance of the workers which led the workers to file Grievance Applications Nos.33, 34, 35 and 147 under section 46 of IRO, 2002 with following prayer:- "It is, therefore, prayed that this Honourable Court may be pleased to set aside ANN.C/3 and restore the status quo ante termination and be further pleased to direct the respondent to put the applicant back in the same job and under the same terms and conditions of work and employment with payment of all rights, privileges, wages and benefits from the date of illegal removal i,e, 31-8-2000 in the interest of justice. ' Any other relief/benefits deemed fit and proper in the circumstances of the case be also allowed with cost throughout. ' Ad interim orders for payment of current wages, wages and benefits, all rights and privileges from the date of removal, i,e, 3.1-8-2000 be granted in the interest of justice." ' The company resisted the application by filing of reply. The workers filed their affidavits, they were cross-examined by the company and no evidence was produced in rebuttal. The applications were disposed of by means of judgment dated 21-5-2005 with following observations:-- "In view of above discussion I am of the considered opinion that the applicant is entitled to receive the wages, benefits as provided under the Law as ordered by the Honourable High Court of Balochistan, dated 9-12-2003, from the date of his reinstatement with effect from 31-8-2000 till the order, dated 9-12-2003, passed by the Honourable High Court of Balochistan as after rejoining his service and conducting a fresh enquiry, once again the applicant was removed from his service on 30-6-2004 and that matter is also pending before this Court. ' Needless to add here that the observations made herein above, qua the other matters pending before this Court are purely tentative in nature which shall not affect the matters pending before this Court which shall be decided on their own merits. ' In view of above mentioned facts and circumstances of the case application filed by the applicant is partly accepted and respondent is hereby directed to pay him wages, benefits and privileges in accordance with law from the, date of his removal i,e, 31-8-2000, to the date of order on 9-12-2003, passed by the Honourable High Court Balochistan. ' Application filed by the applicant is disposed of accordingly, the parties are left to bear their own costs." ' The company challenged the above judgment by filing of Labour Appeals Nos.14 of 2005., 15 of 2005, 16 of 2005 and 17 of 2005 which were disposed of with the consent of the parties vide order dated 18-10-2005 which reads as under:-- "Mr. Abdul Samad Advocate. Mr. Shafiq Qureshi Advocate. ' This appeal under Section 47(3) of I.R.O. Is directed against the order, dated 21-5-2005 passed by 3rd Labour Court Balochistan at Hub, whereby the appellant/company has been directed to pay the wages of the respondent/worker w,e,f, 31-8-2000 till 9-12-2003. ' The relevant facts for disposal of this appeal are that during earlier round of litigation the worker filed appeal before this Court against the dismissal of his grievance application filed before the 3rd Labour Court Balochistan at Hub, against the order of termination of his service. The appeal filed by the respondent/worker was allowed by this Court vide order, dated 9-12-2003 with following observation:---
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"During the course of arguments after going through the evidence/statements of the parties the learned counsel for the respondent fairly conceded that from the evidence available on the record it transpires that when the appellant was terminated the number of workers of the Establishment was more than fifty, therefore, he does not support the impugned order. Hence he expressed his no objection on setting aside of the impugned order as well as the termination order. However, request is made for remand of the matter for fresh inquiry by the respondent. ' Mr. Shafiq Qureshi, the counsel for the appellant expressed his no objection for remand of the matter to the respondent for fresh inquiry subject to setting aside of the termination order and reinstatement of the appellant. ' Talking into consideration the above submissions made by the learned counsel for the parties, the termination order, dated 31-8-2000 is set aside with the consent of the parties. Resultantly the appellant is reinstated w,e,f, 31-8-2000; however, the respondent shall be at liberty to hold fresh inquiry in the matter if so desired. The impugned order dated, 30-3-2002, accordingly is set aside and the appeal is allowed, with no order as to cost." ' After passing of the above order the company held fresh inquiry and the services of respondent/worker has again been terminated w,e,f, 30-6-2004, however before passing of the order of termination, the respondent/worker filed application for compliance of order of this Court with prayer for payment of his wages for the period from 30-8-2000 till passing of the order, dated 9-12-2003 and also future salaries. ' The said application was resisted by the company, however Labour Court allowed the application partially as the company has been directed to pay the wages of the respondent/worker from 31-8- 2000 to 9-12-2003 and further wages after passing of the order of this Court has been made subject to the disposal of the grievance petition filed against the termination of the applicant in result of fresh inquiry. ' The counsel for the appellant who made an attempt to make out a case for refusal of wages for the period which has been allowed by Labour Court but on facing difficulty in said regard came up with plea that company may be allowed 15 days time to pay the wages of the respondent/worker, for the period from 31-8-2000 to 9-12-2003 and the appeal is not pressed on merits. ' Counsel for the respondent expressed his no objection on the above plea. ' Accordingly with the consent of the parties the order, dated 21-5-2005 passed by 3rd Labour Court Balochistan at Hub is upheld and the company is allowed to pay the wages to the respondent/worker within 15 days by depositing pay order in the Labour Court for the amount payable to respondent/worker for the period from 31-8-2000:to 9-12-2003. ' Appeal accordingly stands disposed of with no order as to cost." ' The Company thereafter filed Applications Nos.1 of 2005, 2 of 2005, 3 of 2005 and 4 of 2005 for review of above order. ' The company during pendency of above proceedings served the workers with show-cause notice dated 10-11-2004 which reads as under:--- "SHOW CAUSE ' You were posted at our transit warehouse S.F. Unit 87 SITE Karachi and was directed to report to Mr. Farooq Kalia Assistant Manager vide our letter, dated 6-2-2004, but as per information from Mr. Farooq Kalia you have not reported for duty and remaining absent without intimation or information, which is a gross misconduct. ' Your absence from the .Duty is more than ten days. You are advised to submit you explanation to this show-cause notice within three days from the date of the receipt of this letter, failing which the proper legal action will be followed in accordance with law. ' Since you have not reported for duty as directed, therefore, no enquiry can be held against you in terms of the order, dated 9-12-2003. Unless you submit to the power/authority and jurisdiction of
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the employer, we cannot hold the enquiry as directed by the Honourable High Court, Quetta. The question of back benefits cannot be ascertained and determined as claimed by you. The back benefits are subject to the result of the enquiry, please note." ' The workers submitted their reply, dated 24-4-2004 claiming that in terms of the order passed by this Court the workers were to be posted/reinstated at the place where they were employed at the time of removal from service. The company considering the reply of the workers dissatisfactory, issued enquiry notices, dated 18-5-2004, which were duly replied by the workers on 21-5-2004. The workers resisted the enquiry proceedings and they allegedly did not participate in the enquiry proceedings which were conducted ex parte, whereafter enquiry report, dated 2-6-2004 was submitted wherein the enquiry officer held that the workers remained absent for more than ten days, the charges levelled against them under the Standing Order, 15(3)(e) have been proved and action as per law was recommended against the workers. On the basis of enquiry report workers were dismissed from service by means of dismissal order, dated 30-6-2004. The workers thereafter served the company with grievance notices dated 17-7-2004 issued by them individually and thereafter filed Grievance Applications Nos.165 of 2004, 166 of 2004, 168 of 2004 and 171 of 2004 before the Labour Court. The company resisted the application whereupon the parties were called to lead evidence in support of their respective pleas. The workers filed their affidavits and they were cross-examined by the company. In rebuttal the company filed affidavits of Yousaf Memon Senior Manager Administration, Muhammad Anees and Irshad Ali Plant Managers. They were cross- examined by the workers. The learned Labour Court concluded the proceedings by means of order, dated 31-12-2005 whereby the applications filed by the workers for their reinstatement have been allowed and the company has been directed to reinstate them in service with full back benefits in accordance with law. The company being aggrieved by the order of reinstatement of the workers filed Labour Appeals Nos.3 of 2006, 6 of 2006, 7 of 2006 and 8 of 2006. ' The company simultaneously in continuation of show-cause notice, dated 8-4-2000 and the order of this Court, dated 9-12-2003 issued enquiry notices, dated 7-64004 which were replied by the workers on 14-6-2004. However, the enquiry was conducted during which Aamir Mirza was examined as complainant while Abdul Majeed, Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were examined as witnesses. The workers allegedly disappeared in the middle of the enquiry. The enquiry officer submitted his report and observed as under:- "I have gone through the statement of complainant and his witnesses. The following points are clearly established. ' Amir Mirza complainant gave his statement as stated into the charge sheet and Mr. Ahmed Mujeebuddin corroborated his statement about the misconduct of Abdul Hameed and others whilst the four workers who gave same statement that they were transferred illegally by Abdul Hameed and others by force and under threat. ' In the circumstances I have no hesitation to accept the statement of complainant and his witnesses and come to the conclusion that charges levelled against Mr. Abdul Hameed are proved and he is guilty of misconduct contained in the show-cause notice, dated 8-4-2002". ' In pursuance of the enquiry report dismissal orders, dated 30-6-2004 were issued. The workers served the company with grievance notices but the company did not withdraw the dismissal order whereupon Grievance Applications Nos.165 of 2004, 168 of 2004, 169 of 2004 and 171 of 2004 under section 46 of the IRO, 2002 were filed before the Labour Court which were contested by the company by filing of written reply. The workers thereafter filed their affidavits and were cross- examined by the company. In rebuttal the company examined Muhammad Anees Manager, Abdul Hameed Lasi Senior Manager Human Resources, Muhammad Yousaf Memon Senior 'Manager Administration, Shameel Javed Deputy Manager, and Irshad Ali Manager, who were cross- examined by the workers. The learned Labour Court concluded the proceedings by means of
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judgment, dated 31-12-2005 whereby the company has been directed to reinstate the workers in service with full back benefits in accordance with law. The company challenged the judgment, dated 31-12-2005 passed in Grievance Applications Nos.165 of 2004, 168 of 2004, 169 of 2004 and 171 of 2004 by filing Labour Appeals Nos.3 of 2006, 6 of 2006, 7 of 2006 and 8 of 2006. ' Mr. Abdul Ghani counsel for the company argued that the learned Labour Court not only misappreciated the evidence but ignoring the law passed orders for reinstatement of workers with back benefits. According to the learned counsel for the company the workers against whom the charge of misconduct was levelled were involved in unfair labour practices and they deliberately did not participate in the enquiry proceedings. The workers taking benefit of the said fact got themselves reinstated by this Court vide order, dated 9-12-2003 and thereafter again adopted delaying tactics and despite their reinstatement they did not join the duty and also refused to accept the order of reinstatement, they remained absent for more than 10 days, whereupon enquiry proceedings were conducted as per law which proved the charge of their wilful absence. The company in pursuance of the order of this Court, dated 9-12-2003 conducted separate inquiry about the allegations made against the workers in show-cause notices, dated 8-4-2000 and the said enquiry proceedings which too were in accordance with law and the workers having no defence left the enquiry proceedings in the half way and did not produce any defence while the charge of misconduct as alleged in the show-cause notice, dated 8-4-2000 was proved which resulted in their dismissal from service. The trial Court ignoring the enquiry proceedings without recording of any reason reinstated the workers while grant of back benefits to the workers is also illegal as the workers did not produce any evidence that they remained jobless after their removal from service till finalization of the proceedings before the Labour Court. ' Counsel for the company resisted the judgment, dated 21-5-2005 contending that the Labour Court erred in granting back benefits without examining the issue about workers' wilful refusal to join their duty despite their reinstatement. Learned counsel for the company further argued that as per order-sheets, dated 29-1-2005, 12-2-2005, 5-3-2005, 19-3-2005, 2-4-2005, 11-4-2005 the Applications Nos.33 of 2004, 34 of 2004, 35 of 2004 and 171 of 2004 were to be disposed off along with connected applications but abruptly on 21-5-2005 the applications were allowed and the company was directed to pay back benefits to the workers. According to the learned Counsel for the company the dismissal order of the workers could not be set aside merely on the ground that second show-cause notice was not issued to the workers as the same was not legally required. The learned counsel further argued that the workers failed to prove the allegations of mala fide on the part of the company for their removal from service. It was also argued by the counsel for the company that the affidavits in evidence filed by the workers do not meet the legal requirements. Besides, the applications of the workers before Labour Court were not maintainable as the workers claiming to be office-bearers were to approach NIRC in terms of section 49(4)(e) of IRO, 2002, learned counsel for the company supported his arguments by following case-law:- ' AIR 1986 SC 995, SBLR 2004 Balochistan 960, NLR 1996 Service 11, L.A. No,227 of 2004 Karachi High Court PLD 1967 SC 367-372, 2005 PLC 449, 1996 SCM R 201-213, 2001 SCM R 931, PLD 1987 SC 207, 1982 SCM R 651, 1992 PLC 415, 1992 SCMP 2169, 1982 PLC 365, 1990 PLC 643, 1987 PLC 23, 1962 PLC 528, 1993 PLC 304, 1972 PLC 83, 1986 PLC 1158, 2004 TD Lahore 180, PLD 1982 SC 460, PLD 1981 SC 225, 1981 SCM R 631, 1988 SCM R 1352, 1997 PLC 132, 1999 SCM R 734, PLD 2003 SC 952, NLR 2000 Labour 952, SBLR 2004 Sindh 1565, 1978 SCM R 212, 2004 PLC 293, 1995 PLC 675, PLD 1986 Kar. (sic), 1988 P.Cr.L.J. 2347, 2004 CLC 77, AIR 2004 Delhi 64, 2004 SCM R 1308, 2004 PLC 155 and PLD 1990 SC 1. ' Mr. Muhammad Shafiq Qureshi counsel for the workers supported the impugned judgments/orders and argued that the very basis for initiation of action, i,e, show-cause notice dated 8-4-2000 was mala fide. The charge was not specific. Company without adopting the proper course terminated the services of the workers the termination order being illegal were set
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aside by this Court vide order, dated 9-12-2003 and the company did not initiate any enquiry for more than six months, which could be initiated at the best within one month of passing of the order. According to the learned counsel the company tried to dispense with the services of the workers on fictitious ground that the workers did not join duty despite their reinstatement, but the reinstatement order was in fact an offer for fresh appointment which the workers did not accept and their such act could not be termed as refusal to join duty. The learned counsel for the workers argued that the order, dated 9-12-2003 passed by this Court was not complied by the company which by itself is enough to reflect on the mala fides. The company initiated the enquiry proceedings only after the workers pressed for their reinstatement in terms of order of this Court. The enquiry proceedings about their wilful absence as well as misconduct in terms of show-cause notice, dated 8-4-2000 were conducted in an illegal manner. The workers were not afforded proper opportunity to defend themselves. The conduct of enquiry officer was partial and he was favouring the company which is apparent from the enquiry proceedings itself. Learned counsel for the workers argued that when the workers were not reinstated as per order of this Court, they cannot be said to have absented themselves from duty. Similarly, the company failed to establish the charge levelled in the charge sheet, dated 8-4-2000 as the Company failed to bring. On record any material about workers being involved in tampering of the record or misuse of telephone as neither any record tampered by the workers nor telephone bills were produced before the enquiry officer. Similarly, no document was brought on record to show that the workers named in the show-cause notice were transferred from one section to the other section. Above all the record of production for the said period was also not produced to prove that the act of workers slowed the manufacturing process. Learned counsel for the workers while labelling both the dismissal orders as illegal contended that the services of the workers were terminated on 30-6-2004 while they have not been paid their dues after 8-4-2000 and for the intervening period they were entitled for their wages which the company has withheld illegally. The learned counsel finally came up with alternate plea that if the company is of the view that the services of the workers cannot be restored on account of differences between the parties then the option left to the company is to pay the workers their back-benefits with compensation in lieu of their reinstatement as provided by section 46(5) IRO. Counsel for the workers in support of his arguments placed reliance on the…
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