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Petitioner: Labour N.-W. F. P.L KHYBER TOBACCO Co. Ltd., MARDAN VS Respondent: LABOUR UNION
Court Name: Khyber Pakhtunkhwa Labour Appellate Tribunal Judge(s): Shah Zaman Babar Title: Labour N.-W. F. P.L KHYBER TOBACCO Co. Ltd., MARDAN vs LABOUR UNION Case No.: Appeals Nos. 3, 4 and 5 of 1974 Date of Judgment:1974-04-10 Reported As: 1975 PLC 282 Result: Petitions Nos. 46, 47 and 48 of 1972 Appeal No. 9 of 1974
JUDGMENT
JUDGMENT These Appeals Nos. L.A.T.A. 3/74, 4/74 and 5/74 are disposed of by this judgment. 2. The incident, out of which these three appeals arise, relates to a common occurrence. Although the Inquiry Officer held separate inquiries against the accused worker, but disposed them of by one inquiry report. The learned Labour Court has also consolidated the three applications before him, which has arisen out of the three inquiries against the accused-workers, and he even disposed of the three cases by a single decision. lt is alleged that it was complained by the workers that Mr. M. S. Naseem, the Supply and Purchasing Manager of the Khyber Tobacco Co. Ltd., Mardan, had supplied poor and rotten quality of dual to the Factory Canteen and that he had not provided transport facilities to a sick worker on 7-6-1972. The complaints aroused the workers to protest against Mr. M. S. Naseem and in doing so a crowd of workers including Abdul Jalil, Muhammad Aslam and Sherdad dragged Mr. M. S. Naseem out of his office, assaulted him, belaboured and manhandled him, during working hours on 8th of June 1972, at about 08-30 hours. It will not be out of place to mention here that in June 1972 there was only one Trade Union called Khyber Tobacco Co. Labour Union, Mardan. This Trade Union was also the collective bargaining agent. Abdul Jalil was the General Secretary, Muhammad Aslam was a Chairman, and Sherdad was the Assistant Organising Secretary of the Union. On the allegations that the three officers of the Union had assaulted, belaboured and manhandled Mr. M. S. Naseem on 8th June 1972, at about 08-30 a.m. each one of them viz. Abdul Jalil, Muhammad Aslam and Sherdad, was served with a show-cause notice dated 9th of June 1972. Each of them was also served with a charge-sheet respectively on 14-6-72, 15- 6-72 and 16-6-72. The inquiry against the three accused workers was entrusted to Col. (Retd.) Mian Fazal Wahid, Personnel Manager of the Company. The Inquiry Officer held inquiry against Abdul Jalil in Case No. 47/72, against Muhammad Aslam in Case No. 48/72 and against
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Sherdad in Case No. 46/72. Management witnesses were examined by the Inquiry Officer. In all seven management witnesses were examined. Out of these seven witnesses Mr. M. S. Nasetm (the victim), Muhammad Akram, Department Supervisor, S. M. Salim, Production Officer, Sultan Ahmed, Production Officer, although were common witnesses in all the three cases, were examined separately in each case. Mr. Fida Malik, Accounts Officer and Muhammad Aslam Khan, Assistant Factory Manager were examined in the cases of Abdul Jalil and Sherdad. Subedar Hakeem Khan, Department Supervisor Watch and Ward and Zainul Abidin Darwan were examined in the case of Abdul Jalil only. Each of the accused worker was examined as his own witness in the case, ln the case of Muhammad Aslam, D. W. 1, Ghani-ur-Rehman, D. W. 2, Mohayuddin, D. W. 3, Sardar Hussain and D. W. 4 Afzal Khan, were examined. Abdul Jalil produced D. W. 1 Khial Muhammad, D. W. 2, Hayat Muhammad D. W. 3 Fazal Ghani, and D. W. 4 Syed Mahmood. Sherdad accused worker did not produce any defence evidence. The Inquiry Officer submitted his "Appraisal of Evidence" (Inquiry Report) to the General Manager on 23-6-72. The General Manager served each of the accused- workers with a show-cause notice dated 24-6-72. It appears that the accused workers submitted their replies to the show- cause notice but the replies were rejected by the General Manager on 26-6-72. The General Manager by his order dated 26-6-72 gave a single decision in all the three cases and ordered that Abdul Jalil, Muhammad Aslam and Sherdad should stand dismissed from the Company's service with immediate effect. This decision was conveyed to the three accused workers individually by office order dated June 26, 1972. 3, The Khyber Tobacco Co. Labour Union, Mardan, through Ajmeer Khan its President, in the capacity of collective bargaining agent for the establishment, filed three applications under section 25-A(4) of the Industrial Relations Ordinance, 1969 amended up-to-date, against the order of dismissal dated 26-6-72. The Khyber Tobacco Company, Mardan, through its General Manager, was made respondent. File No. 46/72 relates to the dismissal case of Sherdad file No. 47/72 relates to the dismissal of Abdul Jalil while file No. 48/72 relates to the dismissal of Muhammad Aslam. All the three applications were instituted in the Labour Court, N.-W. F. P. Peshawar on 15-7-72. The Labour Court consolidated the proceedings of the three applicants and witnesses were examined in Case No. 47/72 of Abdul Jalil. The respondents filed their written statement. Both the parties had also filed relevant documents. Abdul Jalil, Sherdad and Muhammad Aslam, accused-workers, were examined as their own witnesses in their respective cases. Col. (Retd.) Mian Fazal Wahid and Muhammad Aslam Khan, Factory Manager, were examined on behalf of the respondent in Case No. 47/72. The learned Labour Court decided the three cases by a single judgment. He accepted the applications on the solitary ground that the respondents had failed to supply copy of the inquiry report to each of the accused-worker, which resulted in grave irregularity and illegality, and as such the order of dismissal of the respective accused worker dated 26-6-72 could not be sustained. He, therefore, by his decision dated 2-1-74, accepted the three petitions with costs, ordered the re-instatement of Abdul Jalil, Muhammad Aslam and Sherdad and set aside the order of their dismissal dated 26-6-72. He further ordered that the respondents should pay them all the benefits of service with effect from 26-6-72. Pleader's fee was fixed at Rs. 25. 4. The Khyber Tobacco Co. Ltd. Mardan, through its General Manager* has come up on three separate appeals under section 37(3) of the Industrial Relations Ordinance, 1969. These appeals are L.A. T.A. Nos. 3/74* 4/74 and 5/74, arising out of Labour . 5. Mr. Peer Bakhsh Khan, counsel for the appellant, and Qazi Muhammad Anwar, counsel for the respondents were heard at length. In order to enable me to pronounce judgment and for other substantial reasons, I recorded the statement of Col. (Retd.) Mian Fazal Wahid, Personnel Manager, Khyber Tobacco Company Ltd., Mardan, as Tribunal witness with previous notice to the witness, to the parties and their counsel. The following points have arisen for determination and adjudication : (1) Whether the three petitions before the Labour Court are not maintainable for non-observance of the mandatory provisions of section 25-A (1) (2) and (3) of the Industrial Relations Ordinance
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(hereinafter to be referred to as I. R. O.)? (2) Whether the three appeals from the decision of the Labour Court are competent under section 37 (3) of the I. R. O. ? (3) Whether the inquiry is vitiable for non-observance of principles of natural justice ? (4) Whether the inquiry report is fair in equity and justice based on good faith, and hence sustainable in law and factual merits of the case? 6. With respect to the non-maintainability of the applications under section 25-A, Mr. Peer Bakhsh Khan, learned counsel for the appellant, urged that the petitions have been instituted on behalf of the Trade Union and bargaining agent and not by the accused worker himself and, therefore, each of the petitions is not maintainable. Section 25*A was introduced in the I. R. O. by Ordinance IX of 1972, gazetted on 13th of April 1972. Reading section 25-A (1) and (4) together a worker can bring his grievance in respect of any right guaranteed or secured to him by or under any law........................ with previous notice in writing to the employer either himself or through his Trade Union within three months of the day on which the cause of such grievance arises and in case of failure to communicate the decision by the employer the worker may take the matter to the Labour Court. Seo- tion 22 (l2) provides that "the collective bargaining agent in relation to an establishment or group of establishments shall be entitled to : (d) ....... (b) represent all or any of the workmen in any proceedings, (c) ......................... (d) ........................................................... Keeping in view these provisions of the I. R. O., I am of the view that the bargaining agent could institute the application and represent the accused- worker before the Labour Court in the proceedings before it. 7. After the addition of section 25-A in the I. R. O. by Ordinance IX of 1972, sections 37 and 38 were also amended as under : -- "I6. In section 37,-- (a) In subsection (3), after the brackets and figure (1) 'the words* brackets, figures and letter or a decision of the Labour Court under subsection (5) of section 25-A* shall be inserted : and (b) in subsection (4), after the word 'awards* the words *and decision' shall be inserted. 17. In section 38, in subsection (3), after the word 'award*, the words 'or decision' shall be inserted.** Later on by Act XXIX of 1973, called Industrial Relations (Amendment) Act, 1973, gazetted on 9th February 1973, by virtue of its sections 27 and 28, the following amendments were brought in sections 37 and 38 of the I. R. O. "Amendment of section 37, Ordinance XXIlI of 1969.--In the said Ordinance,-- (a) in section 37, in subsection (3), the words, brackets, figures and letter 'or a decision of the Labour Court under subsection (4) of section 25-A* shall be omitted ; and (b) in subsection (4), the words *and decisions' shall be omitted. "28. Amendment of section 38, Ordinance XXXIII of 1969.--In the said Ordinance, section 38, in subsection (3), the words *or decision' shall be omitted.*' As said above, the applications before the Labour Court were instituted on 15-7-72, when a decision of a Labour Court was appealable to the Appellate Tribunal under section 37 (3) and the Tribunal had the jurisdiction to hear such appeals under section 38 (3) of the I. R. O. The Labour Court announced its decision on 2-1-74 when by virtue of Amendment Act XXtX of 1973 the jurisdiction of the Appellate Tribunal to hear appeals, from the decisions of the Labour Court was taken away. It is settled' law that an appeal is a continuation of a cause or a Us. The institution of theU cause or Us carries with it the implication of all rights of appeals which! were enforced or preserved to the parties till the rest of the career of the suit.) In Juma Khan v. Mst. Gul Ferosha (1), it was held : "In the Oxford English Dictionary, Vol. 1, "appeal" has been indicated to mean, 'to remove a case formally from an inferior to a higher Court'. The right of appeal is a matter of procedure. It is a substantive right created by a statute. An appeal is said to be a continuation of suit or is included within the word 'suit*. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the Us commences and although it may be actually exercised when the adverse judgment is pronounced.** A similar question arose in Gammon (Pakistan) Ltd.t Rawalpindi v. Muzaffar Khan and 7 others (2). The leamed Labour Appellate Tribunal, Punjab observed that "a right of appeal is a substantive right and accrues when the Us
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commences, unless it is taken away expressly or by a necessary intendment by the subsequent enactment," and since at the time when the petitions were originally filed before the Labour Court there was a right of appeal B to the Labour Appellate Tribunal, an appeal against the decision of the Labour Court would still lie to this Tribunal even after the amendmaaf by the Amending Act of 1973. The three appeals 'are, therefore, competent. 8. The principles of natural justice have been crystallised into four principles of justice, namely, (1) opportunity for both the contesting parties tO( be heard, (2) hearing before an impartial Tribunal so that no man can be a judge of his own cause, (3) decisions made in good faith, and (4) an orderly course of procedure. Apart from this no other principle of natural justice is kaown to the modern jurisprudence. (See Saxby & Farmer (lndia) (Private) Ltd. v. Third Industrial Tribunal and others (1). Pakistan Law defines "Judicial Proceedings" nowhere except in section 4 (m) of the Criminal Procedure Code. The definition runs : "4(1) (m). Judicial proceeding.--'Judicial Proceeding* includes any proceeding in the course of which evidence is or may be legally taken on oath :*' "Evidence" according to section 3 of the Evidence Act, means and includes : "(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence ; (2) all documents produced for the inspection of the Court ; such documents are called documentary evidence." Proceedings before Domestic Tribunal are termed as guari-judicial proceedings. "Judicial", "^wasi-judicial" and "administrative** terms have been explained in Messrs Faridsons Ltd. Karachi and another v. Govemment of Pakistan and another (2), at pages 557 and 558, thus : "The criteria to ascertain whether a particular act is a judicial act or an administrative one has been laid down with clarity in Rex v. Electricity Commissioner (1924) 1 K B. 171, Rex v. London County Council Ex parte Entertainments Protection Association Ltd. (1931)2 K B 215 and authoritatively restated by this Court in the case of Tariq Transport Company v. Sargodha-Bhera Bus Service and others (1958) 2 P SCR 71. In the above case, this Court observed at page 95 :-- "A tribunal acts judicially in the full sense of the term if-- (1) it has to determine a dispute-- (2) the dispute relates to a right or liability which, whatever its immediate aspects, is ultimately referable to some right or liability, recognised by the Constitution or Statute or by custom or equity which by the domestic law is declared to be the rule of decision ; (3) since every right or liability depends upon facts, the Tribunal is under an obligation to discover relevant facts ; (4) the ascertainment of the facts in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent ; and (5) after an investigation of the facts and hearing legal arguments the Tribunal renders a judgment which so far as the Tribunal is concerned terminates the dispute.*' ln the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a Tribunal the approach in do termining the relevant facts is, therefore, often subjective and not objective, there being generally no Us before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. The word "quasi" as prefixed to the word 'judicial* may either indicate that the Tribunal is not acting purely administratively or that it is acting in a manner in which a judicial Tribunal is expected to act. Dealing with the same subject Halsbury in his Laws of England, Vol. II, 3rd Edition at pages 56 and 57 says:-- "Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision. Thus if in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, if at some stage of the proceedings leading up to the decision there was something in the nature of a Us before it, then in the course of such consideration and at that stage the body would be under a duty to act judicially. If, on the other hand, an administrative body in arriving at its decision had before it at no stage any form of Hs and throughout has to con-.
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sider the question from the point of view of policy and expediency it cannot be said that it is under a duty at any time to act judicially.** The principle of natural justice applies to judicial as well as administra-j-. tive bodies. In Chief Commissioner, Karachi and another v. Mrs. Dina Sohral\ Katrak (1), it has been held : "The rule of justice embodied in the maxim : audi alteram partem i 'No man shall be condemned unheard* is not confined to proceedings before Courts but extend to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which art in the nature of a judicial proceeding though administrative in form.** The scope and content of natural justice has been explained in Bharat Tegart v. Mr. N. Hossain, Special Magistrate, Dinajpur and others (2), in the following words : "Natural justice"--Scope and content The scope of the words 'failure of natural justice* is apt to be conceived. What exactly is natural justice has of course not been defined in any case. But it is certainly not justice jn the abstract or moral sense nor even justice according to natural law. It$ content has not yet been correctly determined nor is it capable of such precise definition. To constitute a denial of natural justice, there must be a violation of some fundamental principle of law or procedure of such importance that it would shock the conscience of the Court and it would consider it to be a case where the substance of a fair trial had been denied. The instances of such denial of natural justice appear to be in cases where a person sought to be condemned or to be adversely affected is not given any opportunity of being heard in his defence or where the Judge himself is interested in the matter by reason of some pecuniary or other interest or where there has been flagrant disregard of procedure.'* ln the case of the University of Dacca and another v. Zakir Ahmed (1), it was held : "In all proceedings by whomsoever held, whether judicial or adminis- trative, the principles of natural justice have to be observed if the proceeding might result in consequences affecting 'the person or property or other right of the parties concerned.* This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness." It was further held : 'The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.* Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the 'elementary and essential principles of fairness* as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegation against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and 'to correct or controvert any relevant statement brought forward to his prejudice.** "In other words, 'in order to act justly and to reach just ends by just means* the Courts insist that the person or authority should have adopted the above 'elementary and essential principles' unless the same had been expressly excluded by the enactment empowering him to so act.** In all the recognised elementary disciplinary rules applicable in departmental inquiries, the first requirement at the commencement of the inquiries it that in order to make aware the person affected a preliminary inquiry should be conducted through an inquiry officer and then a charge be framed against the accused officer. In the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as (Standing Orders) Standing Order No. 15 deals with punishments. Stand ing Order 15 (2), (3) and (4) runs as follows : "15 (2). A workman found guilty of misconduct shall be liable to any of the following punishments : (1) PLD 1965 SC 90 (). '.......................... (///) .... ......................................................... (/v) dismissal without payment of any compensation in lieu of notice. (3) The following acts and omissions shall be treated as misconduct:-- (a) . (b) . . . (c) . (d) . . . (e) . (0 (g) (h) riotous or disorderly
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behaviour during working hours at the establishment or any act subversive of discipline ; (4) 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 employer shall be required in every case of dismissal and, when circumstances appear to warrant it, the employer may institute independent inquiries before dealing with charges against a workman.'* Standing Order 15 (4) was amended by Amending Ordinance of 1972 on 15-11-72. For the word "may'* in between the words "the employer'* and "institute independent inquiries'*, the word "shall'' was substituted, and a Proviso was also added to it by the same Ordinance. Standing Order 15 (4) now reads : "(4) 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 explaia the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman : Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.** "Independent Inquiries'' provided in the amending para (4) is still not exhaustive so as to include some other essential steps in the inquiries on the grounds of principles of natural justice. However under the procedure of the original Standing Order 15 (4) it was apparently not obligatory on the employer to institute independent inquiries before dealing with charges against a workman. The word "may" according to its natural meaning is a permissive or enabling word and imports a discretion. But it is not always so where a statute directs the doing of a thing for the sake of justice or the public good, the word "may" is the same as the word "shall" See Tafazzal Hussain v. Province of East Pakistan (1). In the original para. 4 of Standiog Order 15 the word "may" in my view directed the holding of independent inquiries before the charge for the sake of justice to the workman charged and hence the word "may" under reference shall read as "shall" so as to make it mandatory for the employer to institute independent inquiries before dealing with charges against a workman. The Legislature also feeling the necessity in its wisdom substituted the word "may" by the word "shall" in the said para. 4 of the Ordinance. The Tribunal witness placed on file a document Exh. Tr. W. 1/1 dealing with "Disc plinary Procedure". This procedure lays down guidelines for disciplinary actions in the establishment. Reading paras. 1, 3 and Appendix *C mentioned in para. 3 together, I find that preliminary inquiry in writing by the Factory Manager is obligatory before a charge-sheet is served upon the accused worker. Appendix *C' requires a certificate of preliminary inquiry officer to the following effect : "I certify that a preliminary enquiry has been carried out by me and I am satisfied that a prima facie case has been established to proceed with the charge. Will you please carry out an investigation into this misconduct and report your findings to the General Manager?" Alongwith the preliminary inquiry report the Factory Managar has to enclose the statements of the management witnesses examined during the…
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