1970 PLP 359 (PLC)

This action of yours tantamount to misconduct and insubordination. Hence you have committed offences of negligence and dereliction of duty, misconduct and insubordina tion. The petitioner gave his reply, which is Exh. R.

4. He tried to explain, that he was not at fault in the delayed submis sions of the "tyre mileage statement" for the month of March 1964, but with regard to the use of improper language, for which he had been charge‑sheeted, he said:‑ I never meant to injure the feelings of my officer and actually I wanted to express I my views that how far I was responsible for the delay in the submission of the statement I once again add here that during my long stay in this Department, I have never tried to disobey my seniors nor I had the slightest intention to give way to any doubt to my worthy A. S. O. in ibis case. However, I regret very much for this incidence and offer my apologies for the same. I assure that there will be no cause of complaint in further." Although the District Manager mentioned in the charge‑sheet, that enquiry would be held against the petitioner by'' Mr. Arif Sarwar, in fact no such enquiry was held. The District Manager after considering the reply of the petitioner passed the impugned order. The respondent, while opposing the application has raised a number of objections, some of these are:‑ (i) That the petitioner has came to this Court after the lapse of a period of four years and, therefore, is not entitled to any relief. (ii) The petitioner is not the office‑bearer of any Trade Union and the Misconduct committed by him is not connected with any of the disputes or even the dispute pending before the Industrial Court. (iii) The petitioner admitted his guilt and thus there was no necessity of conducting further enquiry. It was contended by the representative of the respondent at the time of arguments that the petitioner bad failed to establish the pendency of any dispute at the time, when the impugned order was passed. He had not proved that he was connected with any pending dispute. The first objection of the respondent that the petitioner having come to this Court after the lapse of a period of about four years and is thus not entitled to any relief must prevail. The impugned order was passed against the petitioner on 18‑10‑1964 and, he has come to this Court on the 13th of April 1968. No period of limitation is provided in the Ordinance for filling an application under section

31. However, the law assumes; that an aggrieved party would be prompt and diligent in the enforcement of his rights. Laches on its part would defeat the remedy, if any was available. The petitioner, therefore, should have come to this Court within a reasonable time. The petitioner's contention is, that most of the time was consumed in the disposal of his departmental appeal and revision. The right given to an aggrieved person by section 31 of the Industrial Disputes Ordinance, 1959 or section 38 of the West Pakistan Industrial Disputes Ordinance, 1918, is a right independent of any other remedy that might be available to him. However, assuming that the petitioner is entitled to deduct the period, during which he sought remedy from his Department, he has still to explain, as to why after the dismissal of his revision petition on the 5th of April 1967 by the Chairman, Road Transport Corporation which was communicated to him on the 11th of April 1967, he kept quiet for another eleven months, when he instituted the instant application. His explanation for the delay, which he gave as P. W. 1 in this Court is to the effect, that after the disposal of his revision petition, he took no further action, because he was not aware that he could approach the Industrial Court is of no avail to him. Ignorance of law cannot be pleaded as an excuse. He deposed that he learnt about eight months after the disposal of his revision, that he could file application in the Industrial Court. If that is so, he has given no reason whatsoever, why he kept silent and took no action for another eight months. However, as I have said above his ignorance, whether he could approach the Industrial Court or not cannot in any way help him. In the case of Muqeem Beg v. Road Transport Corporation, Lahore (1968 P L C 155) Mr. Fazli‑Khaliq Khan, Chairman of the Industrial Court, Karachi, while dealing with the question of delay in presenting an application under section 31 observed: "The petitioner has not given any reason for the inordinate delay in seeking his remedy within reasonable time. The law presumed that an aggrieved party should be prompt and diligent in the enforcement of his rights and any laches on his part will be taken to mean that he was not serious enough to seek his remedy but was prompted from outside quarter. It is true that there is no period of limitation fixed for an application under section 31 of the Ordinance but then such application must be brought within reasonable time. What is reasonable time will depend upon the facts and circumstances of each case. In the instant case, the petitioner has not shown any justification for the inordinate delay. The application calls for dismissal on this ground." In this case, shortly after his dismissal, Muqeem Beg filed an application under section 31 of the Ordinance for his re‑instatement. It was dismissed for default of his appearance on 26‑9‑1966. About six months thereafter, he brought another application seeking the same relief and on the same ground. He failed to explain the delay in presenting his subsequent application. The same was dismissed. Almost the same view was taken by Mr. Fazli Khaliq Khan, in the case of Malik Aman Ullah v. The District Manager, Government Transport Service, Hyderabad (1968 P L C 164), where there was a delay of about 71 months in filing the application under section

31. In the case of Manzur Hussain Shah v. Government Transport Board, Rawalpindi (1963 P L C 402) Mr. M. Khurshid Zaman, Chairman of the Industrial Court, West Pakistan (Retired Judge of the High Court), while dealing with the application of Altaf Hussain and Manzur Hussain filed by them under unction 31 of the Industrial Disputes Ordinance, 1959, after more than 7 1/2 mouths in the case of former and more than five, months in the case of the latter observed:‑ "No explanation has been offered by the applicants fore the inordinate delay in seeking their remedy. The law assumes that the aggrieved parties would seek their remedy with promptness and diligence. In the present case it is obvious that the applicants themselves were not keen in seeking the protection under section 30 of the Ordinance; but they were persuaded by others after the lapse of considerable time to submit the' applications." The Supreme Court‑ of Pakistan in the case of Karnaphully Paper Mills Limited v. Karnaphully Paper Mills Workers' Union and others (1961 P L C 991) while dealing with the case of re‑instatement of certain workers observed:-- "That re‑instatement of workers discharged for' misbehaviour two years before the dispute was referred to the Tribunal did not result in any 'non‑employment', so as to constitute an Industrial Dispute, as there was no nexus between discharge and the dispute referred to the Tribunal. The Tribunal's order re‑instating the workers was set aside." In the case of Road Transport Employees Union, Lahore v. Their Management (1965 P L C 319) Mr. A. R. Changez, Chairman of the Industrial Court (Retired Judge of the High Court), while dealing with the case of one Muhammad Sharif observed:‑ "Muhammad Sharif had been dismissed from service about a year before this occurrence. In the circumstances of the case, we think that his dismissal was not proximately connected with the main subject‑matter of the dispute, or by direct nexus, or by proximity of time. Consequently we hold that the non -employment of Muhammad Sharif in the circumstances, referred to above, does not constitute an industrial dispute. We accordingly, reject the demand for the re‑instatement of Muhammad Sharif." In this case Mr. A. R. Changez had followed the Supreme Court decision mentioned above. If we apply the decisions arrived at in the aforesaid cases, it becomes abundantly clear, that the petitioner has not been able to give any plausible explanation, as to why he was not prompt and diligent in coming to this Court after his revision petition had been dismissed. He has not explained the delay. His laches, therefore, cannot be condoned and application deserves to be dismissed on this ground alone. It was the duty of the petitioner to prove by positive evidence; that some industrial disputes between the workmen and the Management, with which he was connected, were pending in the Industrial Courts, at the ‑time, when the impugned order was passed much, more so, when an objection has been taken that he was not office‑bearer of any Trade Union and his misconduct was not connected with any dispute. It is significant that when he appeared as his own witness in this case, his representative questioned, .hum with respect to this aspect of the case. His reply may be usefully reproduced:‑ "Cases of individual workers, who were either discharged, dismissed or otherwise punished, were pending in this Court, when the impugned action was taken against me." If the individual workers who to this Court by way of applications either under section 31 of the Industrial Disputes Ordinance 19,59, or under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968, the petitioner would have no concern with diem, if their prayer was merely to get their discharge or dismissal or any other punishment set aside. He has not quoted any industrial dispute, which was pending in the industrial 'Court at this time, when the impugned drier alas paused, either in his application or statement made by him in Court. An application under section 31 of the old Ordnance or under section 38 of the ‑new Ordinance, by an achieved workmen is competent only, when the employer' contravenes the provisions of section 30‑ of the old or 37 of the new Ordinance during the pendency of proceedings before a Court. The sections are to the effect that if during the pendency of Conciliation proceedings of proceedings 'before a Court or Tribunal, in respect of an industrial dispute or during the period between the conclusion of the conciliation proceedings and the commencement of the proceedings before the Court, an employer altets to the prejudice of the workmen concerned in such dispute, the conditions of service application to him, he can move this Court. 'Even if condition's of service applicable to the petitioner have been changed, there is no evidence whatsoever, that the same were changed during the pendency of any dispute. The petitioner cannot derive the benefit of any dispute, which might have been filed in this Court, or any other Court after the impugned order had been passed. For this reason also, the application is not competent. The last question, which requires consideration, is as to whether in the circumstances of this case, it was necessary, after the petitioner had given his explanation, to hold further enquiry. The mere fact that the District Manager had mentioned in the charge‑sheet, that the enquiry would be held bar Mr. Arif Sarwar would not be enough as we find that the petitioner in the reply to the charge‑sheet Exh. R. 4) admitted his guilt. Me did not deny use of the language, which had been attributed to him in the charge‑sheet. On the other band he bald:‑ "I regret very much for this incidence and offer my apologies for the same. I assure that there will be no cause of complaint in future." Widen the reply to the charge‑sheet came to the notice of the Enquiry Officer Mr. Arif Sawar, R. W. 2, he sent it to the District Manager ride his endorsement on document Exh. R.8. the explanation was seen by the Deputy Traffic Manager. He took it to be an admission of guilt and recommended stoppage of increment of the petitioner for one year with cumulative effect. This was approved by the District Manager and the impugned order was passed. The petitioner had admitted is .it lead offered apology in the explanation to the charge‑sheet. I am therefore, of the view, that no further enquiry was call for. In view of my above findings, I need fait got into other facts of the case. Thus for the reasons stated above, I find no force in the application and the same is hereby dismissed. I must however add that the petitioner is lucky, inasmuch as the District Manager through fit only to withhold his increment for one year, whereas if so minted; he could dismiss him.