P L D 1976 Karachi 292 (PLP)

MUHAMMAD HALEEM, J.

‑In this petition, the order dated 7th February 1974 passed by the Sind Labour Appellate Tribunal, Karachi, is assailed. The facts, which have given rise to this petition, are that three workers, namely Faras Khan, Talib Hussain and Ibrahim Haji, who were employed as workmen by the second respondent were dismissed from service on 3rd May, 1973, after being charge‑sheeted for misconduct and insubordination. Upon their dismissal persuant to the enquiries held against them, the petitioner who was the Collective Bargaining Agent, raised an industrial dispute in regard to their dismissal from service vide notice dated 9‑5‑73 issued under section 26(1) of the Industrial Relations Ordinance, 1969. This was followed by another notice of strike under section 26(3) of the I. R. O. in case the workmen were not re‑instated which not having been done, the workers went on strike on 12th June, 1973. The Government of Sind, however, intervened and vide order dated 4‑h‑73, issued under section 32(2) of the I. R. O., 1969, prohibing strike and at the same time referred the industrial dispute for decision to the Vth Sind Labour Court, Karachi. The strike was called‑off on 6‑8‑

73. Upon the reference made, the Vth Sind Labour Court gave its award on 13th November, 1973 by ‑which it ordered the re‑instatement of the workers with back benefits. The second respondent appealed against the award to the Sind Labour Appellate Tribunal, which by its order dated 7‑2‑74 set aside the award. Being thus aggrieved the petitioner has invoked the constitutional jurisdiction to seek redress.

2. It is not necessary to go into the facts in detail, for it is an admitted position that the enquiry reports in each case was not supplied to the worker before ordering his dismissal. The question which poses for decision is whether a second show‑cause notice is necessary if the enquiry report is taken as a circumstance against the worker while dismissing him. The orders of the dismissal are alike and for brevity sake, it would suffice if one such order is reproduced:‑ "SERV/RECORD/(1017) 3rd May 1973. Mr. Faras Khan, Karachi. Sir, We have received the inquiry reports in respect of charges of misconduct levelled against you and committed by you on 3‑4‑73 and on 20‑4‑

73. You have been found guilty of misconduct as alleged in the Charge Sheet. On the consideration of the gravity of your misconduct, we are con strained to dismiss you from service with immediate effect. Kindly collect all your legal dues from the office on any working day. Yours faithfully, INTERNATIONAL LABORATORIES LIMITED ' (Sd.) (TABER A. VASI) ADMINISTRATIVE OFFICER." This contention rests on the language of section 15(4) of the West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which is as under:‑

"No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall, institute independent inquiries before dealing with charges against a workmen." Since the expression namely "no order of dismissal shall be made is expressed in the negative, it must be construed as absolute and the dismissal cannot take place unless the further requirement is complied with namely, that the workman is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances appearing against him. In the instant case, as is clear from the order of dismissal, the enquiry report and the charge‑sheet were taken into consideration. There is no dispute about the charge‑sheets which were admittedly served on the workmen. As for the enquiry reports, it is also not disputed that the workers were not supplied with copies of the enquiry reports, which was a circumstance against the workmen which persuaded the second respondent to dismiss him. There was therefore, no compliance of the absolute right of the workers of being heard to explain anything adverse against him in the enquiry reports. In similar circumstances the Supreme Court m Punjab Road Transport Corporation v. Punjab Labour Court Appellate Tribunal (1973 S C M R 455), held that there was no compliance of the mandatory requirement. In this connection, it would be relevant to reproduce the following observations:‑

"The impugned order of dismissal dated the 5th of June, 1969, shows that the following matters were taken into consideration while ordering dismissal of the respondent:‑-- (a) The charge‑sheet dated the 4th of January 1966, served on the respon dent; (b) The reply of the respondent ; and ' (c) The enquiry report dated the 31st of October, 1966, holding the respondent guilty of the charges framed against him. Admittedly the enquiry report dated the 31st of October 1966, which is indeed one of the circumstances alleged against the respondent was never supplied to him with the result that he had no opportunity to explain anything in the report that was adverse to him. In our opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the orders of dismissal should not be passed against him. Evidently such an opportunity must take the form of written show‑cause notice to the respondent. The mere fact that the respondent had a personal audience with his employer when he asserted he was not guilty cannot replace the aforesaid requirement of law." This view was followed by a D. B. of this Court of which I was a member in Constitution Petition No. 875/73 and the dismissal was held illegal. Another D. B. judgment of this Court published in P L D 1973 Kar. 314 (sic) is distinguished on the basis that the view of the Supreme Court was not placed before the Bench which gave that decision, and moreso it is the law laid down by the Supreme Court which has to be followed. The learned counsel for the second respondent relied on Muhammad Shamtm v. Messrs Pakistan Tobacco Co. Ltd., Karachi and another (1975 S C M R 46) and urged that the require ment .for the supply of a copy of the enquiry report was not essential as was held by their Lordships in this case. Nothing will turn on this distinction because in that case not only a second show‑cause notice was given but the result of the enquiry report was also furnished. Their Lordships of the Supreme Court in these circumstances themselves distinguished this case from that of the Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal on this short, ground. We therefore, do not see how the observations in the above case would apply to the instant case which is fully covered by this observations of their Lordships of the Supreme Court in the cages of Punjab Road Transport Corporation. The learned counsel for the second respondent, however, urged that in spite of the order of dismissal the second respondent had by reply dated 8‑5‑73, still kept the question of dismissal open subject to the workmen pointing out the non‑compliance of the rules of natural justice of which, a grievance was made by the letter dated 7‑5‑73, after the order of dismissal. In the other two cases such a letter was also sent. What is of importance is that the law requires the compliance of the requirement before the order of dismissal. What transpired after fait accompli cannot be taken into considera tion, for even apart from it the second respondent had contested the: proceedings on this basis before the Vth Sind Labour Court and the Sind Labour Appellate Tribunal. Mere keeping the matter open for consideration will, therefore, not turn the scale in favour of the second respondent. The contention of the learned counsel for the petitioner has, therefore, sub stance. The learned counsel for the second respondent next urged that the contention of re‑instatement was provided separately by subsection (6) of section 25‑A and could have been redressed as a grievance under that provision, but their re‑instatement as a consequence of dismissal cannot constitute an industrial dispute, and therefore, the Vth Sind Labour Court could not take cognizance of it. This argument also has no substance, for a in the definition of the words 'industrial dispute' wrongful dismissal and re‑instatement are included in the concept of the expression `employment' or `non employment' vide the case of Western India Automobile Association v. The Industrial Tribunal, Bombay and others (AIR 1949 Bom. 111). We have also found nothing in the language of section 25‑A and particularly subsection (6) of that section to hold that by implication the question of re‑instatement is impliedly taken away from the concept of the expression `employment or non‑employment'. Two remedies are provided by the statute for re‑instatement, one is by way of individual grievance under subsection (6) of section 25‑A and the other by way of industrial dispute under section

34. The former remedy was not available earlier as Standing Order No. 18 only provided for the re‑instatement of the office‑bearers of the Union unless the question was raised as an industrial dispute. It was therefore that the Legislature in its wisdom added subsection (6) and gave this remedy to the workers but this did not affect the remedy available earlier in case an industrial dispute was raised. In this view of the matter, we do not find any substance in this contention as well. Lastly, the learned counsel for the second respondent contended that in spite of the technical defect, no relief should be granted, for no prejudice has occasioned to the workers. In the instant case prejudice is not to be establish ed but presumed having regard to the language of the provision itself, for it is not possible to visualise as to what defence a worker would have taken on being supplied with a copy of the enquiry report. In this context, therefore, the contention has no substance. The Sind Labour Appellate Tribunal, while holding against the petitioner observed:‑

"My confirmed view is and for good reasons that Standing Order 15(4) does not require Second Show‑Cause Notice. It is only in case where Statute gives a right of appeal that Enquiry Officer's Report should be supplied to enable the appellant to know the reasons why the Enquiry Officer has given his findings against him so that he is able to challenge these grounds before the Appellate Authority. In other cases it is not necessary where the Enquiry Officer has held an impartial Enquiry." In the context of the observations of the Supreme Court, the view held by the Tribunal was erroneous in law and cannot be supported. As for bolding that no prejudice had been caused, we have already observed that an such a case prejudice is presumed. In the result, for the foregoing reasons, we declare the impugned order as without lawful authority and of no effect and accept the petition. The costs shall follow the event. S. Q. Petition accepted.