1982 PLP 448 (PLC)

This appeal arises from the decision dated 24th October, 1979 passed by the learned Presiding Officer, Punjab Labour Court No. V, Faisalabad, whereby the Grievance Petition of the appellant made under section 34 of the Industrial Relations Ordinance, 1969 was dismissed.

2. The appellant was a Project Manager appointed on 22nd Septem ber, 1976. An enquiry was held against him conducted by Mr. Rashid Ali, which culminated in his termination from service on 18th December, 1978. The appellant first brought an application under section 25‑A of the Industrial Relations Ordinance, 1969 describing himself as a workman, but it was dismissed holding that he was not covered by the definition. He then brought the petition under section 34 claiming to be an employer. The petition was contested by the respondents. The learned lower Court held that the appellant was not covered by the definition of employer and further holding that there was no right guaranteed by any law, award or settlement to the employer for re‑instatement, dismissed his petition.

3. The appellant appeared as his own witness as P. W.

1. His state ment is that he was competent to recruit and dismiss his subordinates. In cross‑examination he said that he was the Head of two departments and used to manage both of them. On behalf of the respondents Mr. S. M. Akbar, Personnel Manager, was examined, who stated that the General Manager and the Factory Manager were responsible for the management of the Mills and that he was working as Factory Manager. Regarding the appellant he said that he was a Project Manager in the company and was not responsible for the overall management. He also stated that the appellant was not competent to recruit or transfer workers and he only used to supervise a special project of the Company. The appellant has admitted this fact in his cross‑examination, stating that he never dismissed any person, but accepted the resignation of one Shahab Din. He also said that he had never issued any letter of appointment o recruited any person. There is no evidence that the project of which the appellant was the Manager, was an independent establishment, rather b the evidence of P.W‑1 it appears that the appellant was not incharge of any separate unit which may be called an establishment. Section 2(viii)(b of the Industrial Relations Ordinance, 1969 states that any person responsible for the management, supervision and control of the establishment would be an employer. The word used `and' is used between the word "supervision' and `control', meaning that a person responsible for all the three things namely, management, supervision and control of an estab lishment, will be an employer. The project of which the appellant was the Manager may be under his supervision, but it cannot be said that it was under his exclusive control and management. The evidence in this respect is wanting. Since it has not been proved that the project was a independent establishment and further that it was in the management supervision and control of the appellant, he does not come under clause (b). Clause (e) reads as under :‑ "in relation to any other establishment, the proprietor of such establishment and every Director. Manager, Secretary, Agent or officer or person concerned with the management of the affairs thereof." Again it is necessary that there, would be an independent establishment. The other provision, according to this clause, is that the person who can be the employer, must be concerned with the management of the affairs of the establishment. I have observed above that there is no evidence that the project was under the exclusive Management of the appellant. So clause (e) also is not applicable.

4. The other thing to be seen is whether any law has guaranteed any right to the appellant, for the infringement of which, he may invoke the provision of section 34 of the Industrial Relations Ordinance, 1969. Obviously Standing Orders Ordinance, 1969 is not helpful to him, because it guarantees rights only to those persons who come within the definition of workman given in section 2(i) of the said Ordinance. The appellant is not claiming to be a workman therefore, this Ordinance is not helpful. Learned Counsel for the appellant has argued that according to the principles of natural justice, the appellant was entitled to be given opportunity of hearing, which was refused, therefore, he can take benefit of section 34 of the Industrial Relations Ordinance, 1969. Principles of natural justice cannot be regarded as law and as the Labour Courts have jurisdiction only in those cases where any law, settlement or award guarantees any right, in the cases where a person has not been dealt with according to the principles of natural justice, the Labour Courts have no jurisdiction. About statutory rules it may be said that they have the force of law, but the principles of natural justice, equity and good conscience cannot be said to be a law. Likewise doctrine of audi alteram partem also cannot be said to be a law. Learned counsel for the appellant has cited 1975 P L C

350. No doubt the argument of the learned counsel for the appellant is supported by the authority, but it cannot be said that the rule enunciated in it is a good law. It has been observed:‑ "The principles of natural justice is a right that is guaranteed or secured to the respondent. The services could not be terminated without calling upon the respondent to show cause why his services should not be terminated on account of absence without leave from 1st May, 1971 to 24th May, 1971." It is clear from the above quotation that it has not been said that the principles of natural justice can be said to be a law. No doubt the principles of natural justice guarantee a right to a person that he should not have been terminated without being given show‑cause notice stud being heard, but unless the principles of natural justice can be said to be a law as contemplated by section 34 of the Industrial Relations Ordinance, 1969, such principles would not be helpful to a person coming under section 34 or section 25‑A of the Industrial Relations Ordinance, 1969. I am, there fore, not inclined to follow the observations made in the authority. He has also cited P L D 1971 Lah.

360. The observations made in this authority are‑‑ "It is well established by authority that principles of natural justice should be read in all the statutes, unless the same are expressly excluded." 1t has been further observed:‑‑ "Law does not mean only statute law but also includes the principles which are laid down by the judicial pronouncement of the superior Courts." Learned counsel also relies, upon P L D 1971 Lah. 698 and P L D 1971 Lah.

829. The observations made in P L D 1971 Lahore 698 are:‑ "It is now well established that the observance of principles of natural justice has to be read in every statute, unless the statute itself provides to the contrary. In other words, if a person has been condemned unheard by any Court or authority whatsoever, then the order by which he was condemned would be a nullity in law and of no legal effect." The observations made in P L D 1971 Lahore 829 are somewhat the same.

5. If the intention of the Legislature had been that the principles of natural justice apply to the labour cases there was absolutely no necessity of promulgating the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, Standing Orders 12 and 15 of which make necessary provisions in respect of the termination and dismissal of workmen, the acts amounting to misconduct, penalties and procedure against the delinquents. So far as the observations that law does not mean only the statute law, but also includes principles which are laid down by the judicial pronouncement of the superior Courts, suffice it to say that the principles laid down by the judicial pronouncement of the superior Courts in labour cases no doubt can be treated to be a law, but the principles and rules enunciated by the superior Courts in other service cases cannot be applied to the labour cases, because they are governed by special statutes and/or to be decided by special tribunals and there is a conflict between the principles of natural justice and the provisions made in those laws on the subject. Clause (4) of Standing Order 15 says that only in cases of dismissal, charge sheet be given, and enquiry be held, whereas according to the principles of natural justice, in every case, the principles should be applied. Likewise under Standing Order 12, termination and removal can be made only by an order in writing giving reasons and charge sheet‑and making of enquiry are not necessary. Where a workman is permanent, his services can be to terminated by giving him one month's notice or one month's pay in lieu o0notice, and this is quite in flagratton of the principles of natural justice. All the provisions of Standing Orders Ordinance, 1968 are meant for the workman, but it cannot be said that there are no restrictions about the giving of show cause notice and making enquiries in the cases of employers. If the employers want to take benefit of the principles of natural justice, they may avail of them where there is ‑no restriction for their application. I, therefore, hold that the learned lower Court has rightly dismissed the Grievance Petition of the appellant. There is no force in the appeal, which is dismissed. Appeal dismissed.