1982 PLP 709 (PLC)

Muhammad Ikram for Respondents. The above-captioned six appeals arise froth the decisions dated 23rd November, 1978, passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore in the six grievance petitions brought by the above-mentioned six respondents separately. The grievance petitions were accepted by the above-mentioned decision and the respondents directed to be reinstated in service with back benefits. As the facts involved in the six appeals are the same, they are being disposed of through this single judgment.

2. The workers of the appellant mills demanded reduction of one hour from their working hours. When the management refused their demand, they, including the above-mentioned six respondents, are alleged to have started one hour strike daily. The management got a case registered against them in which they were arrested and detained in the jail. While they were in the jail, charge-sheets were sent to them through jail, which they refused to receive. In their absence enquiry was held without sending the enquiry notices to them. The enquiry entailed in the dismissal of the respondents. When the respondents came out of the jail, they challenged the orders of their dismissal separately before the then Junior Labour Court. The petitions were made on 23rd January 1973, which were dismissed by the Junior Labour Court, Ferozewala on 5th February 1973. Some of the petitions were dismissed on 3rd February 1973. The grounds of dismissal were that the order of dismissal had been passed under the Economic Reforms Orders, which barred the jurisdiction of the Labour Court and that since the allegation of unfair labour practice had been made against the respondents, the National Indus trial Relations Commission and not the Labour Court had jurisdiction. On 5th February 1973 all the respondents made fresh petitions under section 25-A of the Industrial Relations Ordinance, 1969 which were dismissed by the same Court on. 12th February 1973 on the ground that the order of dismissal of the previous petitions had not been got set aside. Against the dismissal of the previous petitions, appeals were prefer red on 16th February 1973. Appeals were also preferred against the dis missal of the second petitions given on 23rd February 1973. On 30th June 1973 on the statement of the counsel for the respondents, appeals Nos. 268 of 1973 and 269 of 1973 were withdrawn, but appeal No. 289 preferred against the dismissal of the second petitions remained pending. That appeal was transferred to Labour Court, Northern Zone, where it was numbered as 395 of 1974 In that appeal notices were issued to the parties for 21st January, 1975, None appeared on behalf of the res pondents, therefore, they were dismissed in default and were not restored. On 28th July, 1975 fresh appeals were brought, one against the order dated 3rd February, 1973 with an application for condonation of delay and the other against the order dated 5th February, 1973 with an application for condonation of delay. Three appeals were decided an 5th September 1973. Their numbers were 395 of 1974, 394 of 1975 and 350 of 1975. By the decision of those appeals orders impugned in those appeals were set aside and the cases remanded. In the remand order instead of the word `case' the word 'appeal' is mentioned. After the remand order, the petition, were accepted and the respondents were directed to be re-instated in service with back benefits.

3. Learned counsel for the appellant has argued that since the case was not remanded and the appeals were remanded, the Labour Court had no jurisdiction to decided the petitions. This argument is without force. In reality the cases were remanded and by mistake the word 'appeal' was mentioned The Labour Court had no jurisdiction to hear appeals and thus it is apparent that in reality the cases were remanded. The second argument of the learned counsel is that since the orders passed on the first petitions were not set aside and are in the field, second petitions could not be made. This point is sub judice before the High Court in writ petition, therefore, I cannot express any opinion on it. I have to see whether the impugned orders are maintainable or not. However, if the High Court decides that the second petitions were not maintainable since the order of dismissal of the previous petitions were not got set aside, the matter would end and all the remaining proceedings would be redundant. The dismissal orders of the respondents were passed on different dates.

4. Learned counsel for the appellant has argued that Standing Order 15(4) of the W.P. Industrial arid Commercial Employment (Standing Orders) Ordinance, 1968 was amended on 16th November 1972, whereas some of the respondents were dismissed on 25th October, 1972 some on 10th October, 1972 and the remaining on 28th October, 1972 and 14th November, 1972, i. e. before the law was amended, therefore, the impugned order is liable to be set aside. The difference in the amended and unamended law is that before- amendment it was not incumbent upon the employer to hold enquiry, but it was optional that if he considered that according to the circumstances, the enquiry may be held then he had the option to hold enquiry, other wise there was no need, whereas after the amendment this option was taken away from the employer and it became incumbent upon him to hold enquiry before passing the dismissal order. This is true that the employer was not bound to make enquiry under the unamended law, but since the employer deemed it proper and necessary to hold enquiry, the same could not be held on the back of the respondents. Their participation in the enquiry was necessary and since they were not made to participate, they were prejudiced and the orders of dismissal are vitiated. Learned counsel says that since the charge-sheets were refused by the respondents, it was not necessary to send enquiry notices. He further says that since the respondents were in jail, they could not have joined the enquiry and thus for this reason also sending of enquiry notices was futile. I do not find any force in these arguments of the learned counsel. Although the respondents had refused to receive the charge-sheets, yet still it was incumbent upon the management to serve upon them in the jail enquiry notices even if they were in hurry and could not wait till the respondents had come out of the jail on bait or otherwise. If the management had no knowledge regarding the whereabouts of the respondents, of course there could be some justification, but since they knew that the respondents were in the jail and they realised that they while in jail could not participate in the enquiry; the enquiry should have been deferred till they had cone out of the jail. There was absolutely no necessity of making haste. It appears that the intention was not to allow the respondents to join the enquiry. Learned counsel relies upon:1962 PLC 1509 (e), 1965 PLC 77, and 1969 PLC

489. There was no need to cite these authorities because i have already observed above that before the amendment of Standing Order 15 (4) making of enquiry was not obligatory.

5. The other argument of the learned counsel is that even if it be held that the order of re-instatement cannot be interfered with, the respondents were not entitled to back benefits at least for the period from 3rd June, 1972 to 8th July, 1975 the period for which their appeals remained withdrawn. He has also said that the respondents are getting wages from 2nd April, 1979 under the order of the High Court and they are not entitled to wages for this period, So far as this question is con cerned that the appeals of the respondents remained withdrawn from 3rd June, 1972 to 8th July, 1975, the question is sub judice before the High Court and it is not known what will be the decision. Therefore, I cannot say anything in this respect. However, since from 2nd April, 1979 the respondents are getting wages, the amounts received by them during this period would be deducted from back benefits, because double pay ment cannot be made. It has also been argued that the second appeals of the respondents remained dismissed in default from 21st January, 1975 to 20th April, 1975 and they are not entitled to the wages of that period also. In this respect also I cannot say anything, because the matter is sub judice before the High Court.

6. As a result of the observations made above, I do not find any force in the appeals and dismiss them. Appeals dismissed.