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Petitioner: GRINDLAY's BANK LTD., KARACHI VS Respondent: Rat ABDUR RAZZAQUB KHAN AND 2 Other
Court Name: Lahore High Court Judge(s): Ghulam Mujaddid Mirza Title: GRINDLAY's BANK LTD., KARACHI vs Rat ABDUR RAZZAQUB KHAN AND 2 Other Case No.: Writ Petition No. 2463 of 1976 Date of Judgment:1978-11-20 Reported As: PLD 1979 Lahore 192 Result: Petition dismissed
JUDGMENT
JUDGMENT The Grindlays Bank Limited (hereinafter referred to as the Bank) is a limited Banking Company ; its Head Office in Pakistan is at Karachi and Branches all over the country, Lahore, Rawalpindi, Islamabad, Peshawar and Quetta. Respondent No. 3 is an employee of the Bank. He is also the President of the Bank Employees' Union. There are five such Unions of the Bank. All are members of a Federation known as Grindlays Bank Employees' Federation of West Pakistan. On 29-10-1975, a settlement was arrived at between the Employees' Union, which was represented collectively by the Grindlays Bank Federation of West Pakistan and the petitioner Bank. This settlement was to remain in force for a period of 18 months commencing from 1-10-1975. Its clause 30 is important which is to the following effect : "It is agreed that this Settlement shall be binding on the Bank on the one hand and the Federation as well as the respective Collective Bargaining Agents of the Bank's workmen concerned on the other for a period of 18 months commencing from 1st October, 1975 and thereafter shall continue to remain effective and binding upon the parties after the expiry of aforesaid period of 18 months until the expiry of 2 months from the date on which either party hereto namely the Federation or the Bank informs the other in writing of its intention no longer to be bound by this Settlement ; and the Federation hereby agrees and undertakes on its behalf as well as on behalf of the Collective Bargaining Agents of the workmen concerned at upcountry branches that no demand having any financial implications for the Bank or any of the demands contained in Annexures B' and' 'C' thereto shall be raised directly or indirectly by or through the Federation or any of the Collective Bargaining Agents concerned during the currency of this Settlement."
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According to the aforesaid Clause, it was agreed upon between the parties that no demand having any financial implications or any of the demands contained in the documents attached with the Settlement shall be raised directly or indirectly by or through the Federation or any of the Bargaining Agents during the currency of the settlement. On 2-4-1976, the Bank Employees' Union raised a fresh charter of demands ; reply to that was submitted by the petitioner Bank and the stand taken in that was that the new charter of demands was misconceived. On 26-4-1976, respondent No. 3 served a notice on the petitioner under section 26(3) and section 28 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the "Ordinance"). This was a threat for strike. On 27-4-1976, the petitioner Bank submitted reply to the notice and told the respondent that the threat was illegal. Thereafter, conciliation proceedings started as envisaged by section 26(3) of the aforesaid Ordinance, but unfortunately the proceedings failed. On 15-6-1976, respondent No. 2 filed a petition before the Punjab Labour Court. On 27-7-1976, the petitioner Bank submitted its reply. A preliminary objection was taken which was to the effect that no fresh dispute could be raised during the operation of the Settlement. 2. Pending these proceedings, another incident took place which led to the filing of this constitutional petition. There is a Staff Canteen within the Bank premises, the president of which is the Bank Manager. The canteen is for recreation purposes and it used to close down at 7-30 p.m. It was brought to the notice of the Bank Manager that the Canteen used to remain open till late night and some of the employees indulged in gambling. On 17-3-1976, the Branch Manager ordered that the Canteen should close every evening at 7-30 p.m. Sharp. . Ghulam Sarwar Qureshi, respondent No. 3, who is General Secretary of the Bank Employees' Union, issued a notice which was to the effect that the Canteen shall open at 7-30 p.m. But the notice did not say as to at what time the Canteen would close. This notice was pasted on the Notice-board. When this fact came to the notice of the Branch Manager, he sent for respondent No. 3 and reprimanded him.. This happened on 18-3-1976, but respondent No. 3's attitude was "could not careless". On 25-3-1976, respondent No. 3 was called up by the Branch Manager to remove the unauthorized notice and to give explanation in writing about his conduct within four days. Respondent No. 3 declined to receive the aforesaid intimation as a result of which it was despatched under Registered Post and was delivered to the respondent on 27-3-1976, but yet he did not bother and the notice issued by the respondent continued to remain on the Board. On 31-3- 1976, the Branch Manager deputed a photographer to take a photo of the said notice and on 6-4- 1976 another letter was sent to the respondent giving him another chance to explain his position. It is alleged by the petitioner Bank that even this letter was not acknowledged by the respondent. As the behaviour of respondent No. 3 was obnoxious and against the institutional discipline, the matter was reported to the Chief Area Manager. On 14-4-1976, a charge-sheet was served on respondent No. 3. On 18-4-1976, respondent submitted his reply. The entire record was placed before the General Manager, who ordered an enquiry and Mr. S. U. Sakrani was appointed as Enquiry Officer. Respondent No. 3 participated in the proceedings and led evidence. On conclusion, the Enquiry Officer found respondent No. 3 "guilty on two counts". (1) Willful interference in the lawful function of management ; and (2) Willful insubordination and wilful disobedience to the lawful orders of superior officer. The Enquiry Officer then submitted his report. The Industrial Relations Advisor of the Bank issued a second show-cause notice, which was as to why the respondent be not dismissed from service. On 21-6-1976, respondent No. 3 submitted reply to the said notice and requested to be heard in person. The request was allowed.
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The Industrial Relations Advisor submitted his report in which he mentioned certain extenuating circumstances in favour of the respondent. The case was submitted to the Chief Area Manager, Mr. K. H. Wilson. Mr. Wilson agreed with the opinion of the Industrial Relation Advisor and ordered that respondent No. 3 be demoted from the post of an Assistant to that of a Clerk. As by that time, Labour Court was seized of an industrial dispute, it was thought necessary to obtain prior approval of the Court before taking action against the respondent. Accordingly, on 8-7-1976, a petition was moved by the petitioner-Bank under section 47(2) of the Ordinance, praying thereby "that the permission may kindly be accorded to reduce the respondent from the clerical rank o1 Assistant to the clerical rank of Clerk for committing offences of misconduct which have been substantiated in the independent enquiry and he has beer held guilty of the same by the Enquiry Officer". On the aforesaid application the Labour Court/respondent No. 1 issue notice to respondent No. 3 for 26-7-1976. Respondent No. 3 appeared before the Labour Court, requested for adjournment and filed his reply on 27-7-197f The case was fixed for evidence for 17-8-1976:, The petitioner Bank produce the necessary evidence and the case was then adjourned to 21-8-1976 for evidence of the respondent. In the industrial dispute, which was sub judice before respondent No. 2 arguments on a preliminary objection were heard on 16-8-1976, and the case was set down for orders, for 19-8-1976. Petitioner's counsel appeared or the said date but was informed that the orders would be; announced or 23- 8-1976. In the other petition seeking permission, the respondent's evidence was recorded on 2I-8-1976, arguments were heard and the order was announced on the same day. It is the aforesaid order which the petitioner-Bank ha; impugned by means of this constitutional petition. 3. Before discussing the contentions raised by the learned counsel for the petitioner, I think it is necessary to refer to the case of respondent No. 2, because his version regarding the Staff Canteen incident is different, Respondent No. 2's stand is that in view of the direction issued by the Manager to close down the canteen at 7-30 p.m. Opening hours of the canteen were curtailed as a result of which the Staff was deprived of normal recreation facilities. The respondent, as such, in his capacity, as representative of the Canteen/Club put up a notice that the canteen "shall open every morning at 7-30 a.m.". Learned counsel for the respondent submitted that it was typographical mistake that the time wag mentioned as 7-30 p: m. Ha submitted that originally the canteen used to open at 9-00 a.m. This was the time when the Bank would open for public dealings. The decision to open the canteen from 7-30 a.m. Was taken by the Management of the canteen, the President of which was the Branch Manager. The Manager was invited to attend the meeting but he did not turn up. It was, therefore, unanimously resolved by the Managing Committee that in view of the Branch Manager's directive to close down the canteen at 7-30 p.m., additional ninety minutes were to be given to the staff for the use of the canteen for indoor activities and that could only be done if the canteen was to open from 7-30 a.m. Learned counsel submitted that it was under these circumstances that a notice was displayed which was that the canteen would open at 7-30 a.m. 4. . I would now deal with the contentions raised by the learned counsel for the petitioner. It was submitted that respondent No. 1 was bound by the finding of the Enquiry Officer. He was to only make sure that the inquiry was conducted in accordance with law, rules of natural justice had been complied with and the respondent was provided full opportunity to plead his case. It was next contended that respondent No. 1 was not empowered to substitute his own finding in place of the Enquiry Officer. This is what respondent No. I did in the instant case and by doing so he acted beyond his jurisdiction, which rendered his order to be without lawful authority. It was argued that even the substituted findings were not based on any evidence but were mere conjectures and
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surmises. It was next submitted that keeping in view the legal and factual position, respondent Nos. 1 had no option in law but to grant the necessary permission because the enquiry conducted by the Enquiry Officer did not suffer from any legal defect. Last of all, learned counsel took up the plea of mala fide and accused respondent No. 1 of interpolation because of the overwriting of the date '19-8-1976' which was later on changed to 23- 8-1976. Though, this was done in the main industrial dispute, nevertheless according to the learned counsel, it adversely affected the order passed vis-a-vis the petitioner. 5. I would first of all like to dispose of the last contention. Before admitting this petition to regular hearing, I had called for report and comments from respondent No. 1, which he duly submitted. I have gone through those comments. Respondent No. 1 admitted the overwriting but for that he gave an explanation as to why it was so done. It was submitted that he had no stenographer of his own. He usually borrowed one from some; other department to whom he used to dictate orders after the Court-hours. Orders were used to be announced after the presiding officer had gone through them and made the necessary corrections. In the instant case, the Industrial Dispute case was fixed for announcement for 19-8-1976, but as the stenographer was late on that date, hence the case was adjourned to 23-8-1976. This date was suggested by the learned counsel for the respondent and agreed by the learned counsel for the petitioner ; it was on account of this that 'J9-E-1976' was changed to that of '23-8-1976'. This is an honest explanation and I have no reason to disbelieve respondent No. 1. Petitioner has not brought anything on the record to show that respondent No. 1 was favourably inclined towards respondent No. 3, therefore, he wanted to go out of the way to help him. I, therefore, find no force in the contention of mala fide and interpolation, the same is hereby rejected. 6. The main emphasis of. The learned counsel for the petitioner was on the fact that respondent No. 1 acted without lawful authority in refusing to grant permission. Learned counsel referred to section 33 of the Industrial Disputes Act, 1947, which is to the following effect : "No employer shall during the pendency of any conciliation proceedings or proceedings before a Tribunal, in respect of any industrial dispute, alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings, nor, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be, shall he during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute." and submitted that the aforesaid section was in para materia with section 47 of the Ordinance. Reference was also made to sections 30 and 31 of the Industrial Disputes Ordinance, 1959 and West Pakistan Industrial Disputes Ordinance, 1968, respectively, because according to the learned counsel even these sections were almost identical to section 47 of the Ordinance. While discussing the aforesaid sections, reference was also made to section 25-A of the Ordinance which was added in the year 1972. Dealing with the powers of the Labour Court, learned counsel referred to a few decisions of the Indian Courts which dealt with the question of interpretation and operation of section 33 of the Industrial Disputes Act, 1947, which, according to Mr. Zafar is in para materia with section 47 of Ordinance 1969. The first case relied by the - learned counsel was Express Newspapers (Private) Ltd., Madras v. Industrial Tribunal, Madras (1961 PLC 471), wherein it has been observed : "It is plain that the jurisdiction of the Industrial Tribunal in dealing with applications under section 33 of the Act is not the cloak of an appeal in disguise. It cannot function as an appellate authority sitting in judgment over the decision of the Management and review the facts and rehear the parties for that purpose. The Tribunal has not to decide whether on the facts that led to the
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decision of the Management another conclusion different from that reached by the Management is possible or not. As held by the Supreme Court in Lakshami Devi Sugar Mills v. Pt. Ram. Sarup (1956) 11 F J R 273, the duty of the Tribunal was to ascertain whether there was a prima facie case justifying the act of the Management for which approval was sought. The object and purpose of section 33 of the Act is to prevent victimization of any employee by the Management or the perpetration of any unfair labour practice during the pendency of other proceedings so as to keep the atmosphere calm and tranquil and the relationship between the parties equable and cordial. Prevention of victimization of the employee by the employer and prevention of unfair labour practice or methods is the limit of the jurisdiction of the industrial Tribunal in exercising its powers of approval under section 33(2) of the Act. The Management should not be deprived of its rights to administer its internal affairs and domestic management so long as they do not come into conflict with the statute." The amended section 33 of the aforesaid Act was to the following effect : "During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall-(a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings ; or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be." Reliance was also placed on the following observation : "I am of opinion that the impugned decision of the Tribunal is clearly in excess of its jurisdiction. The Tribunal has failed to approach the problem before it in the manner required by law as interpreted by the decisions referred to above. The relevant questions whether there was a prima-facie case justifying the Management in ordering dismissal of the second respondent and whether the Management was guilty of victimization of the second respondent or was chargeable with any act of unfair labour practice have not been considered. On the other band, the Tribunal has dealt with the matter as if it was deciding an industrial dispute and as if its powers are as large and wide as that of an Appellate Tribunal sitting in judgment over the decision of the Management. These defects constitute excess of jurisdiction and error of law apparent on the fact of the record so as to attract the exercise of the jurisdiction of this Court under Article 226 of the Constitution." Reference was also made to Swatantra Bharat Mills, New Delhi v. Rattan Lal (1961 PLC 714). In this case, the Court also dealt with the operation and interpretation of section 33(2)(b) of the Industrial Disputes Act and the question pertaining to the jurisdiction of Industrial Tribunal dealing with the application for approval of dismissal of a workman, in the following words : "The jurisdiction of an Industrial Tribunal dealing with an application for approval of the dismissal of a workman, made under section 33(i)(b) of the Industrial Disputes Act, 1947, is limited to an enquiry as to whether a prima facie case has been made out by the employer against the employee or not. The Tribunal cannot consider the merits of the contentions of the rival parties as if it was trying the case, itself or sit in appeal over the findings of the domestic enquiry." Learned counsel then cited the case of Lord Krishna Textile Mills v. Its Workmen (1961 PLC 737). In this case, the Court dealt with the scope and application of section 33(1) of the Industrial Disputes Act, 1947, as well as section 33(2)(b) of the Act. Section 33 (2) reads : "(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the Standing Orders applicable to a workman concerned in such dispute, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding ; or (b) for any misconduct not connected with the dispute ; discharge or
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punish, whether by dismissal or otherwise, that workman Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." It was observed : "It is plain that whereas in cases falling under section 33(1) no action can be taken by the employer unless be has obtained previously the express permission of the appropriate authority in writing, in cases falling under subsection (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by section 33(2) is not as rigid or rigorous as that imposed by section 33(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval. In dealing with cases falling under section 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the Standing Orders, whether the employee concerned has been paid wages for one month, and whether an application has been made for approval as prescribed by the said subsection. It is obvious that in cases of alteration of conditions of service falling under section 33(2)(a) no such approval is required and the right of the employer remains unaffected by any ban. Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under section 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under section 33(1), and in exercising its powers under section 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two subsections, and in providing for express permission in one case and only approval in the other". Reference was then made to the case of Harinagar Sugar Mills Ltd. v. Siv Saran Sinha (1961 PLC 1556). Relying on this decision, learned counsel for the petitioner argued that the Labour Court would have no jurisdiction to determine whether the conclusion arrived at by the domestic enquiry was wrong or the punishment was severe. All that was expected from a Labour Court was to have come to the conclusion that there was a bona fide enquiry and its result bad not, in any way, been affected by victimization, unfair ,labour practice or violation of principles of natural justice ; then the authority was bound to give the approval. The purpose of citing this decision by the learned counsel was that the ratio in these cases was afplicable to the instant case because of the marked similarity of section 33(2) of the Industrial Disputes Act, 1947, with that of section 47 of the 1969 Ordinance. Learned counsel for the petitioner then cited the case of Pakistan Petroleum .Workers' Federation v. Burmah-Shell Oil Storage & Distributing Company of Pakistan Ltd. (PLD 1961 SC 479), wherein it has been observed that "the finding in the enquiry is enough to show that the dismissal was for misconduct not connected with the dispute, and therefore there was no violation of section 33 of the Act. The principle followed by the Tribunal of not sitting in appeal over the proceedings in the enquiry is perfectly correct." The aforesaid observation was made while examining section 33 of the Industrial Disputes Act.(XIV of 1947). 7. Learned counsel for the respondent raised two preliminary objections First pertained to the remedy of appeal available to the petitionerit was submitted that without availing the same, the petitioner was debarred from coming to this Court in its constitutional jurisdiction. The next objection was to the effect that some of the reliefs claimed by the petitioner were against a private body. This Court was not competent in law to give am direction or grant any relief in its constitutional jurisdiction against a private body.
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While dealing with the industrial dispute, learned counsel submitted that the new charter of demands was justified. It was not hit by the previous Settlement because of the changed circumstances as well of the fact that in the new charter of demands, no demand touching the financial question had been raised. It was next contended that the discretion vested in the Labour Court had been. Rightly exercised by respondent No. 1, his findings were based or evidence and were not conjectures, therefore, this petition was not maintain. Able. Last of all, learned counsel submitted that as a disputed question of fact had been raised in the petition, the petition, as such, was not competent. Learned counsel then addressed me with regard to scope, and application of section 47 of the Ordinance. It is, therefore, necessary to reproduce the aforesaid section in extenso "(1) No employer shall, while any conciliation proceedings or proceedings before an arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the arbitrator, the Labour Court or Tribunal, as the case may be, nor shall he- (a) save with the permission of the conciliator, while any conciliation proceedings are pending, or (b) save with the permission of the arbitrator, the Labour Court or Tribunal, while any proceedings before the arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute. (2)…
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