1976 PLP 123 (PLC)

1. Eight workers whose names and particulars are given in the list marked 'A' attached with the under consideration application were placed under suspension on 21/22 August 1974 by the Management of the respondent Rafhan Maize Products Co. Ltd. Lyallpur under Standing Order 15(5) of tile Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for the purpose of conducting an enquiry into the alleged misconduct of these workmen.

2. Employees Union Rafhan Maize Products Co. Ltd., Lyallpur which is Collective Bargaining Agent in the said establishment brought an industrial dispute in this Court on 27th September 1974 seeking award in respect of 10 demands listed in the Schedule of demands of the industrial dispute. One of these demands is that charge-sheets, show-cause notices and suspension orders in respect of the aforesaid 8 workmen be withdrawn.

3. On 8th October 1974 the petitioner-Union brought the under con sideration application under sections 34 and 45 of the Industrial Relations Ordinance, 1969 and Order XXXIX, rule 2 of the Code of Civil Procedure wherein it is prayed that respondent be directed to treat the aforesaid 8 workers on duty and make payment of wages to them or in the alternative they be treated on duty after 23rd September 1974 the date on which the domestic enquiry concluded against them and since then they be paid their wages as their suspension amounted to illegal lock-out which is liable to be prohibited.

4. It is contended in the under consideration application that the Management could place the said workers under suspension for conducting enquiry into the charges of misconduct against them only for 4 days under Standing Order 15(5) and that thereafter the period of suspension could not be extended. It is further alleged that the enquiry into charge of misconduct against them has already been concluded on 23rd September 1974 and there after the workers could not be kept under suspension in any case. It is also alleged that actually the aforesaid workers who were office-bearers of the petitioner-Union and other Union were being victimized by the Management for their Trade Union activities.

5. This application has been resisted vehemently by the respondent who has inter alia pleaded that the petitioner-Union had no locus standi to bring the under consideration application under sections 34 and 45 of the I.R.O., 1969 as no right guaranteed or secured to the Collective Bargaining Agent by or under any law, award or settlement has been violated and in fact the petitioner through the instant application has sought to enforce the right of individual workman. On merits it has been pleaded seeking permission to dismiss the said workers and therefore, they could be legally kept under suspension till the decision of the respondent's application filed under section 47.

6. Parties have been heard at length for the disposal of the under consideration application.

7. As regards the question of maintainability of the instant application under section 34 of the I. R. O. it is observed that section 34 provides that any Collective Bargaining Agent or any employer may apply to the Labour Court for enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. This means that CBA can only seek redress for the enforcement of any right which is guaranteed or secured to the CBA by or under any law or any award or settlement. In the circumstances of the under consideration case 8 workers have beer, placed under suspension for the purpose of conducting enquiry into the charges of misconduct against them. This step by no stretch of imagination can be deemed to be affecting the CBA as a whole. It is also noteworthy that out of 8 workers only 4 are the office-bearers of the petitioner, one is merely member of the petitioner-Union and remaining 3 are office-bearers of an other Union in the same establishment. It has also been stated at the bar during the course of arguments that one worker has since been re-instated. The learned representative of the petitioner has placed reliance on 1971 P L C 443 a case decided by Sind Labour Court. In that case the Sind Labour Court found that in the circumstances of the case office-bearers and active members of Trade Union were locked-out illegally and therefore the application of the Trade Union under section 34 was allowed. The facts of the under consideration case are quite different. We cannot also lose sight of the fact that in November 1972 section 34 has been amended and after this amendment only C.B.A can enforce a right guaranteed to it under or by any law, award or settlement under this section. In National Bank of Pakistan Employees Front v. National Bank of Pakistan etc. (1975 P L C 188(2)) Sind Labour Appellate Tribunal has held that however liberal an interpretation may be given to section 34 of the Ordinance it does not confer any right on the A Collective Bargaining Agent to take up the cause of an individual workman so as to nullify the provision of section 25-A of the Ordinance. Similar view has been expressed in the case reported as 1975 P L C 105, and 1975 P L C 230.

8. In the light of what has been said above, it is concluded that the petitioner's application under sections 34 and 45 of the I. R. O. whereby cause of individual workman has been espoused is not maintainable.

9. It is however, noteworthy that in the heading of under consideration application the petitioner has also mentioned Order XXXIX, rule 2 of the Code of Civil Procedure. In paragraphs 1 and 2 of the under consideration application reference has also been made to the Industrial Dispute No. 119/74 which is pending in this Court with 4th November 1974 as the next date of hearing. It is clearly pleaded in paragraph 2 that the claim statement submitted in the Industrial Dispute might be read as a part of this application. In these circumstances this application can be treated as stay application under Order XXXIX, rule 2 of the C. P. C. arising out of the aforesaid dispute. It is also noteworthy that in the said Industrial Dispute, as already stated, one of the demands of the petitioner is that 8 workers who have been placed under suspension be re-instated and the enquiries initiated against them be withdrawn. It is clearly provided in section 36 of the I. R. O. that a Labour Court shall, for the purpose of adjudicating and determining any Industrial Dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure 1908. Needless to say that the Civil Court while exercising its jurisdiction under the Code of Civil Procedure can grant temporary relief by way of stay order, etc., pending adjudication of a cause.

10. In this view of the matter the petitioner's application for the grant if stay order under Order XXXIX, rules 1 and 2, C. P. C. is maintainable in view of the pendency of the Industrial Dispute instituted by the petitioner against the respondent involving inter alia demand concerning the relief claimed in the, under consideration stay application. As far the merits for the petitioner's prayer for the temporary stay, is observed that Standing Order 15(5) of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 empowers the employers to place a workman under suspension for a period of 4 days' at a time for the purpose of conducting enquiry against him into the charges of misconduct. In this case the respondent has already completed the enquiry into the charges of misconduct against the workers concerned in as much as after the service of charge-sheet on them Enquiry Officer completed the enquiry, submitted the report to the competent authority and thereupon the competent authority served final show-cause notice for dismissal on the workers. The respondent, however, could not dismiss the workers concerned because an Industrial Dispute was pending and therefore the respondent has moved the Court for grant of permission to dismiss the workers. According to the Industrial Disputes Ordinance, 1959 and the West Pakistan Industrial Disputes Ordinance, 1968 a worker could be placed under suspension during the pendency of the employer's application seeking permission of Labour Court for his dismissal. It has not been so provided in the Industrial Relations Ordinance, 1969. According to the well established principles of interpretation of statutes it is to be deemed that the Legislature intentionally took away this power.

12. Moreover even having regard to the principles of balance of convenience and irreparable loss, there would not appear to be any justifica tion for continuing the suspension of the workers concerned for indefinite period when the enquiry against them has already been completed by the employer.

13. In view of the above it is directed under Order XXXIX, rules 1 and 2, C. P. C. that 8 workers, whose particulars are given in the list marked A attached with the under consideration application, shall henceforth be re-instated against their jobs. This order shall, of course, have no effect, what so ever, on the application filed by the respondent under section 47 seeking permission for the dismissal of these workers.