1981 PLP 829 (PLC)

The main argument of the representatives of workers was that up to 1969 there was a provision for suspending the Union officials during the pendency of dispute on account of misconduct pending the consideration of application for permission of his removal before the Industrial Court or Labour Court, but after the promulgation of Industrial Relations Ordi nance of 1969 there was no such provision under section 47 of the Indus trial Relations Ordinance of 1969, and therefore, suspension being a punishment could not be inflicted upon the worker. The learned Labour Court traced the history of the Labour legisla tion in the country, and thereafter, had agreed with the submission of the representative of the workers.

4. Mr. Shibli learned counsel for the appellants has taken me through the labour legislation and also shown me A I R 1957 S C 33, A I R 1959 S C 923 and 1342 there, while interpreting section 33 of the Industrial Disputes Act, 1947 (XIV of 1947), it was held that suspension of a worker pending enquiry or proceedings of permission for dismissal before the Tribunal was not a punishment. Reason ing of Indian Supreme Court was that such a suspension of a worker temporarily terminated the relationship of master and servant and if the Tribunal grants permission to the employer to dismiss the worker then the suspended contract of employment would come to an end and there would be no obligation to pay wages otherwise if permission was refused to the Management then all wages shall have to be paid to the worker by the Management from the date of suspension. Section 37 of the Industrial Disputes Act, 1947, ‑is reproduced below:- "No employer shall, during the‑pendency of any conciliation proceed ings 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 during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such work men, except for misconduct not connected with the dispute." The relevant words in this section for the purposes of the present con troversy were "or otherwise punish any such workmen". Indian Supreme Court had interpreted these words to mean that suspension during the pendency of an application for permission to dismiss a workman pending before the Board or Tribunal did not amount to punishment. The above quoted section 33 of the Industrial Disputes Act continued to remain in force in Pakistan till 1959 and thereafter, the Industrial Disputes Act was repealed and re‑enacted as Industrial Disputes Ordinance, 1959 and section 33 was changed to section 30 with the only difference that the words "Board or Tribunal" were changed into `Court' and last 8 words of the section 33 of Industrial Disputes Act of 1947 were omitted in 1959, but they are not relevant for our purpose and therefore, legislation in India and Pakistan in this respect continued to be almost the same till 1961 and hence, the view of the Indian Supreme Court in respect of the phrase "or otherwise punish" would be quite relevant for the purpose of interpretation of that phrase. In 1961 by Ordinance XVI of 1961, called Industrial Disputes (Amendment Ordinance, 1961) Section 30 of the Industrial Disputes Act of 1959 was reconstituted and the same reads as under ;‑ "(1) No employer shall, during the pendency of conciliation proceed ings or proceedings before a Court in respect of an Industrial dis pute or during the period between the conclusion of the conciliation proceedings and commencement of the proceedings before the Court, alter, to the prejudice of the workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of conciliation proceedings, nor shall he‑ (a) save with the permission of the Conciliation Officer, during the pendency of conciliation proceedings and the period there after preceding the commencement of the proceedings before the Court, and (b) save with the permission of the Court, during the pendency of the proceedings before the Court discharge, dismiss or otherwise punish any such workmen except for misconduct not con nected with such dispute. (2) Notwithstanding anything contained in subsection (1) an officer of a Trade Union shall not, during the pendency of any proceedings or period specified in that subsection, be discharged or dismissed for misconduct not connected with the industrial dispute referred to therein except with the previous permission of the Court, but may, pending the disposal of an application to the Court for much per mission, be placed under suspension. (3) The Court shall deal with an application under subsection (2) in such summary way as it may think fit. Explanation.‑In this section "an officer of a Trade Union", has the same meaning as in the Trade Unions Act, 1926 (XVI of 1926)." This special provision for the first time provided an embargo against discharge or dismissal of official of a Union, but the suspension during the pendency of an application for permission to discharge or dismiss a Trade Union official for misconduct was also specifically provided for and there fore, the right of the Management to suspend a worker as interpreted by the Indian Supreme Court was expressly recognised by the reconstituted section

30. This section 30 received an interpretation from a learned Judge of Lahore High Court in P L D 1972 Lah. 864, who held that Industrial Disputes Ordinance of 1959 as amended in 1961 made pro vision for suspension of a worker, who was a union official during pen dency of an application for permission to dismiss him on account of misconduct and he, therefore, held that such suspension was not regarded as a punishment.

5. Therefore, the interpretation of the Law as prevailing in India and Pakistan till 1961 was that mere suspension of a worker' during pendency of an application for permission to dismiss him was not regarded as a punishment. Even in 1961 this right of suspension was recognised by the legislation and this position continued till 1968 when the Industrial Dis putes Ordinance of 1959 was repealed by West Pakistan Industrial Dis putes Ordinance, 1968, where section 30 of Industrial Disputes Ordinance of 1959 was replaced by section 37 of West Pakistan Industrial Disputes Act, 1968 where a further security to the Union official was provided that the suspended Union official was to be paid 50% of his wages as subsis tence allowance during the suspension, therefore, the right of the emp loyer to suspend an employee was continued even by this section

37. However, the West Pakistan Industrial Disputes Ordinance was repealed by the Industrial Relations Ordinance, 1969 and in place of old section 37, a new section 47 made some substantial changes in subsection (2) of the previous relevant section 37 of West Pakistan Industrial Disputes Ordi nance, 1968 or section 30 of the Industrial Disputes Ordinance, 1959 as reconstituted in 1961, and therefore, I will reproduce only subsection (2) of section 47 of I. R. O. which is relevant for our purposes and which has received the interpretation from the Presiding Officer of the Labour Court. Section 47.‑‑‑(1)............ (2) Notwithstanding anything contained in subsection (1) an officer of a registered Trade Union shall not, during the pendency of any proceedings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous per mission of the Labour Court."

6. It is, thus, quite apparent that the power of suspending a union official pending the consideration of an application for his dismissal which was available to the Management from 1947 till 1961 on account of the interpretation put by the Indian Supreme Court and on account of specific legislation made in Pakistan in 1961 and enforced till 1969 was not specifically continued by the legislation as made in 1969. This omissions of the power of suspension from section 47, I. R. O. of 1969 has greatly influenced the Labour Court to come to the conclusion that since this power of suspension had not been continued in 1969, therefore, the Management could not exercise such power and if they did so then it amounted to otherwise punishing the worker and changing his terms and conditions. I must say that the interpretation put by the Labour Court on sec tion 47 of I. R. O. is not completely without force and it could be asserted that since the Legislature in its wisdom had not cared to continue to allow the power of suspension to the Management till pendency of an applica tion for dismissal, therefore, suspension would, thereafter be regarded as punishment. However the learned Judge has ignored another principle of interpretation which is that the legislation which is penal in its nature should be strictly constructed, and therefore, section 60 of Industrial Relations Ordinance which provided for punishment in respect of contravention of the provision of section 47 of I. R. O. should have been considered in such a matter that what has been specifically prohibited in section 47 should alone have been regarded as punishable, and therefore, section 47 itself should have been considered in a limited and strict sense. The learned Judge had to labour a great deal to come to the conclusion that after 1969 the suspension of union official during pendency of an application for his dismissal amounted to punishment. This legislation .was a special type and it had simply not made a special provision for suspension as provided from 1961 till 1969 but otherwise it had not stated clearly that the suspension of a Trade Union official during pendency of an application for dismissal would be regarded as punishment. It was, therefore, only implied and inferred, because of the Mission that the suspension would be regarded as a punishment. I can only say that views could reasonably be possible and it could be legitimately argued even suspension could not be made without the permission of Court while some other person could argue that since the suspension never been interpreted as a punishment, therefore, the Legislature made specific mention of the same powers of suspension in 1969. The gonists of the latter view in favour of the power of suspension could upon an amendment effected in December, 1975 in clause (5) of Order 15 of West Pakistan Standing Orders Ordinance, 1968 power of suspension was conferred upon an employer in respect of union official pending an Industrial Dispute and pending the grant of permission to dismiss the employee under section 47 of I. R. O. It can be legitimately argued that it was only an omission which had been sup plied in 1975 by amending the West Pakistan Standing Orders Ordinance, 1968, and therefore, [the Legislature had all along been of the view that such a suspension could be available to the employer.

7. Since, both views could be canvassed with some force, therefore, the situation was not free from difficulty and in these circumstances the benefit of doubt in respect of the interpretation of section 47 or Standing Order 15 of West Pakistan Standing Orders Ordinance, 1968 should have been allowed to the appellants. It could be bona fide impression on their part that they had the right of suspending a Union official who had been found guilty of misconduct in domestic enquiry, and therefore, it was ne cessary to continue the suspension as the Management had already made an application for permission to dismiss him before the Labour Court and the same was pending. Even otherwise it appeared to be rather severe upon a Management to continue employing a worker who had been found guilty of misconduct. If the said worker could be sus pended during the pendency of a domestic enquiry it was all the more equitable that he should remain suspend after the domestic enquiry had found his guilty of misconduct till such time that the application by the Management for his dismissal was disposed of by the Labour Court. If the Labour Court allowed the application then there was no further obligations upon the employer but in case the Labour Court declined the request of the employer for dismissal, then of course there would have been more than ample justification to take back the suspended official and pay his wages.

8. In these circumstances, I am of the view that the appellants were entitled to benefit of doubt in respect of the interpretation put by them upon section 47 of I. R. O., 1969 and therefore, they were not correctly convicted, and hence, their conviction is set aside and the fines if paid by them should be refunded. Conviction set aside.