P L D 1962 Supreme Court 60 (PLP)

S. A. RAHMAN, J,‑

This appeal, by special leave, calls in question the validity of an ,ward and certain decisions included therein, given by the Industrial Tribunal, Karachi, in a dispute referred by the Central Government, between Glaxo Laboratories (Pakistan) limited and' its Workers. Leave to appeal was granted originally to consider the following two questions " (1) Whether the second extension of time for the award made retrospectively was legally effective and had the effect of continuing the jurisdiction of the Tribunal ; and (2) Whether the award with regard to the dismissal of work man, Latafat was based on sound principle and legal reason ?" By a subsequent order the leave granted was extended to include the question of re‑instatement of 32 dismissed workmen on the grounds stated in the petition for special leave. The Glaxo Laboratories (Pakistan) Ltd., are the appellants before us and the principal respondent is the Glaxo Laboratories Workers' Union, Pakistan and the Industrial Tribunal being also impleaded as parties. The first point is not now pressed before us by Mr. Fazlur Rahman, on behalf of the appellants, in view of the decision of this Court in Pakistan Petrolium Workers' Federation v. Burmah Shell Oil Storage and Distributing Co. of Pakistan Ltd. (P L D 1961 S C (Pak.) 480). In that case, it was held that the time for the making of an award could be extended even ex post facto. The next point pertains to the dismissal of Latafat, a painter, by the Company. This workman was ordered by the Chief Engineer of the Company to work overtime each Saturday till 5 p,m. and to take his rest day each Friday, commencing from the 20th of December 1.957, instead of Sunday which would become a working day in his case. Latafat declined to obey these orders. He actually worked on Friday, the 20th of December 1957, and did not attend for work on Sunday. He was charge‑sheeted under rule 23 (a) of the Standing Orders of the Company for wilful disobedience of orders issued by his superior. An enquiry was held and as a consequence he was discharged from service on the 6th of January 1958. The matter was taken up by the Workers' Union who submitted a Charter of demands on the 19th of November 1957, which included the re‑instatement of Latafat. The demands were not accepted and the Union gave a notice of strike on the 8th of February !

958. The strike in fact commenced on the 6th of March 1958. It is alleged that on the next day, 14 female employees of the Company were molested by the strikers when they were coming in a bus to the Company's premises. The appellant‑Company filed a complaint against some of the workers under sections 147, 321 and 323 of the Pakistan Penal Code, but the Magistrate discharged them for want of satisfactory proof of identity of the accused persons. Three complaints were also filed by the workers against the Directors and Senior Officers of the Company under sections 341, 342, 352 and 506, Pakistan Penal Code, and they were allowed to be dismissed in default of prosecution. The dispute between the parties was then referred to the Industrial Tribunal for adjudication. The learned Tribunal held that Latafat was Illegally ordered to work on Sunday and to take Friday as his rest day, in contra vention of the provisions of section 35 of the Factories Act, 1934. This section is in the following terms :‑ " No adult worker shall be allowed to work in a factory on a Sunday unless‑ (a) be has bad for will have a holiday for a whole day on one of the three days immediately before or after that Sunday, and 141 (b) the Manager of the factory has, before that Sunday or the substituted day, whichever is earlier,‑ (i) delivered a notice to the office of the Inspector of his intention to require the worker on the Sunday and of the day which is to be substituted, and (ii) displayed a notice to that effect in the factory. Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day." As the Company had failed to comply with clause (b) of this section, it was found that the order was in violation of the statute and Latafat was under no legal obligation to obey. In conse quence, the learned Tribunal directed that Latafat should be reinstated with full benefits with effect from the date of his dis charge, and the period of his absence should hi, treated ac leave Without pay. Mr. Fazlur Rahman has conceded that one of the conditions laid down by section 35 of the Factories Act, namely, the delivery of notice to the Inspector, had not been complied with by the Company. He, however, contended that this was a case of urgent work, falling within the purview of rule 80 of the Rules framed under the Factories Act, and, therefore, the Company was entitled to call upon the workman to take Friday as his rest day instead of Sunday, without giving a notice to the Inspector. It is true that rule 80 dispenses with such a notice in the case of urgent work. There is, however, no indication in the material on the record that the painting work assigned to Latafat was of an urgent character. Indeed the opposite conclusion would seem to follow from the fact that he was required to do the painting work on days and at times when no work was going on In the factory and it had to be carried on till the work was completed. The inference is obvious that the work had no urgency about it. Consequently, rule 80 could not be attracted to the case and as admittedly the Company did not follow the strict provisions of section 35 of the Factories Act, the impugned order could not be sustained in law and its disobedience could not be held to be misconduct on the part of the workman who had a right to insist on his usual rest‑day being Sunday in the normal course. An alternative suggestion was then made by Mr. Fazlur Rahman that Latafat was paid a month's salary in lieu of notice and, therefore, his discharge should not be regarded as one by way of punishment but referable to the contract of service between the parties which provided for termination of service by one month's notice on either side. The action taken, it was argued, fell within the purview of rule 21 of the Standing Orders instead of rule 23 and no reinstatement could be ordered in the circumstances. The order by which his services were dispensed with, is typed on page 74 of the Record Vol. I. It expressly mentions that Latafat had been found guilty of contravening rule 23 (a) of the Standing Orders and was, therefore, discharged from the Company's service. During the proceedings before the Tribunal and even in this Court, in the grounds of appeal and in the Concise Statement put in on behalf of the Company, Its case has consistently been that Latafat's services had been terminated for wilful disobedience of a lawful order under rule 23 of the Standing Orders. This relates to " Disciplinary Action for Misconduct " as appears from page 230 of the Record, Vol. II. The rule lays down that " an employee may be suspended for a period not exceeding four days at a time or may be dismissed without notice or compensation in lieu, if he is found guilty of misconduct. Wilful disobedience of any lawful or reasonable order of a superior is inter alia specified as one of the grounds for holding the charge of misconduct proved against a workman. It is true that Latafat was given one month's salary also in lieu of notice, which would not normally be the case if the services of the workman are terminated under rule 23 of the Standing Orders. That rule, however, provides that in the case of an ordinary termination of employment by a discharge notice under rule 21, any pay earned by him and any other does, if any, shall be paid before the expiry of the second working day from the date on which his employment is terminated. It appears that Latafat was paid one month's salary In lieu of notice along with his pay and overtime allowance for the relevant period but there is no indication that he was paid anything else by way of Pro vident Fund or any salary for earned leave standing to his credit. In the case of other employees whose services were terminated under rule 21, we find from the record a detailed statement, showing the amount of Provident Fund due and sum payable In lieu of earned leave to the credit of the employee, was drawn up and payment was made accordingly. In the case of Latafat, however, such a detailed statement does not exist and apparently only a receipt was taken from him for the payment of wages for work done and a month's salary in lieu of notice. It may be that he was not a contributor to Provident Fund at all and that may explain the absence of the mention of Provident Fund in this context. But there is nothing to show on the record that he was at all treated as having been discharged under rule 21 and that rule, therefore, cannot be pressed into service by the Company for pleading that the termination of service had no connection with the alleged misconduct of Latafat. Although rule 23 provides that an employee found guilty of misconduct may be dismissed without notice or without salary in lieu of notice, yet it was open to the Company not to enforce any such penal provision and this is what the Company seems to have done though it specifically resorted to rule

23. No exception can, therefore, be taken to the order of reinstatement passed by the Tribunal in the case of Latafat. The Company seems to have misconceived the legal position in his case and he must, therefore, be restored to his rights under the contract. We now come to the case of 32 employees whose services were terminated by the Company. They fall into two groups. The first group consists of 23 employees whose services were terminated by the Company, purporting to act under rule 21 of the Standing Orders, without a charge‑sheet. The proceedings, though pending at the time before the Tribunal, had been ordered to be stayed by the High Court of West Pakistan on a writ petition filed by the Company to challenge the validity of the reference to the Tribunal. The second group consisted of 9 employees who were on probation and whose services were terminated without any charge‑sheet, before the stay order had been issued by the High Court in writ proceedings. The learned Tribunal found that the termination of the service of these 32 employees was Illegal. He, therefore, ordered their reinstate ment with full benefits with effect from the date of termination of their services and with the additional direction that the period of their absence may be treated as leave without pay. The case of the 9 probationers may be taken up first. It was the case for the Company that out of these 9 workmen, one, viz. Miss Liza Massy, was discharged, as she had developed a skin disease and it was risky to employ her in the factory, two had been found to be unsatisfactory workers who had been given bad reports by their superiors and 6 were retrenched for want of available work. The learned Tribunal held that their services could not have been terminated pending the adjudication of the dispute, without the permission of the Tribunal, accorded under section 33 of the Industrial Disputes Act. He was of the view that even "probationers" were "workmen" within the meaning of that term, as defined in the Act. He thought that the discharge of a probationer was a punishment and, consequently, section 33‑A of the Act was attracted to the case. Section 33 places a pro hibition on varying conditions of service applicable to workmen or the termination of their services during the pendency of pro ceedings before a Tribunal, except in the case of misconduct not connected with the dispute. Section 33‑A authorises the Tribunal, on a complaint made, to adjudicate upon a dismissal or discharge from service in contravention of section 33, as if it were an "industrial dispute" under the Act. It seems to us that the learned Tribunal misdirected himself In law in not drawing a distinction between probationers and permanent workmen. The Standing Orders of the Company mention three categories of employees, namely, (a) permanent, (b) probationary, and (c) casual. A permanent employee is defined as one who has completed a probationary period of six months' service with the Company and has been confirmed in his post. E A probationer employee is described as one who is provisionally employed to fill a vacancy in a permanent post, but who has not completed six months' continuous service. A casual employee is one who has been engaged to carry out work which is likely to be of a limited duration. The three classes of workers are subject to different incidents in respect of termination of services under the Standing Orders. In rule 21 of the Standing Orders it is laid down that for every termination of employment of a permanent employee, one month's notice in writing should be given either by the Company or the employee, or one month's pay given in lieu of notice. In the case of casual or probationary employees, however, it is expressly provided that they shall not be entitled to any notice or pay in lieu thereof, on termination of service, nor would they be required to give notice to the Company if they desire to leave the Company's service. It is clear that the service of the probationers is of a tentative nature. During the period of probation both parties are at liberty to decide whether they would substitute the provisional agreement between them by a contract of permanent service or not. The very idea of pro bation is that it would be a trial period during which the employer might make up his mind whether he wishes to retain the services of the workmen or not. If, therefore, the Company forms an unfavourable impression about an employee during the period of probation, there would be nothing to prevent the Company from sending him away without notice. In the present case, the Company appears to have acted bona fide in discharging the 9 employees who were on probation with them. As has been mentioned above, one of them had developed a disease which was found to be incompatible with the type of work required in this factory, six had been retrenched because no work was available for them and two were found to be unsatisfactory workers. There is no material on the record to suggest that the reasons advanced by the Company for their action were not genuine. They were not charged with any misconduct and their discharge from service was a normal incident of their employment, having no relation to the dispute pending before the Tribunal. We can discover, therefore, no justification in this case for the order of reinstatement passed in favour of these 9 employees. The learned Tribunal did not find that the reasons given by the Company for the discharge of their services were tainted with mala fide. We, therefore, set acid,,, the order of the Tribunal q a these: 9 employees. The main controversy between the parties centres round the discharge of the remaining 23 workmen. Although no charge sheet was framed in their case, it is contended by Mr. Fazlur Rahman that these workmen were guilty of a criminal offence in the course of the strike called by the Union and that occasioned their discharge from service. Learned counsel attempted to argue that indulgence in activity of a criminal nature, effectively destroys any nexus between the conduct of a workman and an industrial dispute pending before the Tribunal. In the first place, no principle or authority has been cited by Mr. Fazlur Rahman in support of his proposition. If, prima facie, the action of the workmen is "lawful", it would not presumably fall within the definition of "misconduct" at all. So far as the Company is concerned, there may be certain types of misconduct which do not fall within the purview of criminal law. But there appears to be no warrant for the contention that if such misconduct also happens to be covered by the definition of an "offence", then it ceases to have any connection with the industrial dispute. It is clear that the allegations of the commission of an offence by the workmen, formed the subject of a trial before a Magistrate, which ended in the discharge of the accused by that Court. It is not for the Company to rake up that matter again and hold the workers guilty of a criminal offence. The question of the criminality of any of the workers, therefore, hardly arises for consideration. It is admitted that the termination of service of these workmen was by way of punishment for their alleged participation in unlawful activity during the strike and that no enquiry was held to bring any such charge home to them. Prima facie, the purported discharge of these workmen from service could not be sustained. Mr. Fazlur Rahman advanced the general argument that ft was beyond the competence of the Industrial Tribunal to order reinstatement of a discharged or dismissed employee even if the termination of his service was wrongful. He argues that this would amount to thrusting a worker on a Company unwilling to employ him and would alter the general law of master‑and‑servant to the prejudice of the company. The argument, however, is effectively answered by the language employed in sections 33 and 33‑A of the Industrial Disputes Act. There are no words of limitation suggesting that in an appropriate case the Tribunal cannot order reinstatement of a workman. The Act is designed to ensure Industrial peace and harmony between the employers and their workmen. With that object in view the legislature appears to have provided that In suitable cases the reinstatement of a victimised worker may be ordered. It is now well settled that a Tribunal, functioning under the Act, can alter the terms of contract between the employers and his workmen in order to resolve any industrial dispute and this Court has In several cases upheld orders of reinstatement of workmen whose services were terminated illegally. It is too late in the day to urge that such a power Is not vested in an Industrial Tribunal or fn a Court that entertains an appeal from an award of such a Tribunal. The definition of an "industrial dispute" given in the Act clearly includes the question of reinstatement of a dismissed employee within its scope. It would, however, depend upon the circumstances of each case whether the relief of reinstatement or compensation fore wrongful discharge from service would be the appropriate remedy No hard and fast rule can be laid down in this connection. In the case of reinstatement, however, it seems to be necessary to clarify that an order passed in favour of the workman does not have the effect of improving his contractual rights under the terms of his service. This principle was affirmed by this Court in the Mughal Tobacco Company Limited v. The Islamic Republic of Pakistan (P L D 1959 S C (Pak.) 31). The Company would be at liberty, after complying with the order of reinstatement, to resort to such action as may be open to it, in respect of such workmen under the terms of their service, provided that such action is taken bona fide and not merely as a clock for victimisation on account of Trade Union activities on the part of workmen. In the latter case, the Company would be creating trouble for itself as their action would provoke, in all probability, a strike or at least a further industrial dispute. The rights of a workman are, by no means, improved by "misconduct" of which he may be guilty and for which he may be liable to be dismissed by the Company after due enquiry. If a direction is given for reinstatement of such a workman on account of want of due enquiry preceding his dismissal, it does not destroy the right of the Company after reinstatement, to proceed against him, in accord ance with the mode permitted by law. In view of the above discussion, we allow the appeal of the Company in respect of the nine probationers but the appeal must fail in respect of the reinstatement of Latafat and with regard to the other 23 workmen whose services were dispensed with for alleged misconduct without a regular enquiry, as required by the Standing Orders of the Company. The award of the Tribunal would be varied accordingly. The parties are left to bear their own costs. A. H. Order accordingly.