1993 PLP 798 (PLC)

The brief facts of the case are that Muhammad Islam, respondent No. 3, while working as a Conductor of Bus No. 6706 on route No. 8 on 26‑5‑1968 charged fair from three passengers but did not issue them the tickets and as such pocketed the money. This matter was reported by the passengers to the checking party which called upon Muhammad Islam to give his explanation. Respondent No. 3 refused to offer any explanation. The proper charge‑sheet was served and disciplinary proceedings which were not later attended to by Muhammad Islam were held. He was served with a show‑cause notice and after affording opportunity of personal hearing the District Manager dismissed him from service vide order dated 20‑8‑1968. Muhammad Islam, respondent No. 3, challenged this dismissal by filing an application under section 38 of West Pakistan Industrial Disputes Ordinance, 1968 before the Labour Court which vide its award dated 16‑5‑1970 accepted the application and directed reinstatement of respondent. The Punjab Road Transport Corporation challenged the said order in appeal before the Appellate Tribunal but the said appeal was dismissed on 22‑3‑1971. These two orders were then challenged by filing this Constitution petition.

2. The West Pakistan Industrial Disputes Ordinance, 1968 (Ordinance IV of 1968) came into force with effect from 11‑6‑1968. The Industrial Disputes Ordinance, 1959 (LVI of 1959), in its application to the Province of West Pakistan stood repealed on the enforcement of Ordinance IV of 1968. Subsection (2) of section 46 of Ordinance IV of 1968 provided that notwithstanding the repeal of the said Ordinance, that is, Ordinance LVI of 1959, anything done, rules, notifications or orders issued, officers appointed, Courts constituted, notices given, references and applications to the Courts made, proceedings commenced or other action taken under the said Ordinance shall be continued and be deemed to have been respectively done, issued, appointed, constituted, given, made, commenced or taken under this Ordinance. Though the incident in respect of which Muhammad Islam, respondent No. 3, was charge‑sheeted occurred on 26‑5‑1968 but the charge sheet was served under the Ordinance of 1968 and the proceedings were also taken under the said Ordinance. So, the applicability of this Ordinance is not a point in issue. Even otherwise the relevant provisions of sections 30 and 31 of Ordinance LVI of 1959 and of sections 37 and 38 of Ordinance IV of 1968 are the same. The only question that has been agitated before me is that permission of the Conciliation Officer or of the Court was not required as the misconduct on account of which the respondent No. 3 was held guilty and dismissed had no connection with the pending industrial disputes. It is common ground that between the workers and Corporation four industrial disputes were pending. The question is whether the pending disputes had any concern with the misconduct on account of which respondent No. 3 was proceeded against. Learned counsel agree that resolution of jurisdictional fact was necessary for maintainability of the complaint/petition under section 38 of the Ordinance. In order to determine this question, relevant material available on record merits to be scrutinized. First comes the application filed by respondent No. 3 himself challenging the order of dismissal dated 20‑8‑1968. In para. 8 of the petition, averments contained read as under:‑‑ It is apparent from a perusal of the above that the assertion at best goes to the extent that four industrial disputes were pending between the workmen and the Corporation and also that the respondent has direct connection with the same as these pertain to increase in wages, doctor's certificate and other demands. It was not the case of Muhammad Islam, respondent No. 3 that his dismissal was subject‑matter of these industrial disputes. Then comes the award made by the Labour Court on 16‑5‑1977. The observations made therein read as under: "No facts or arguments have been brought to the notice of the Court on behalf of the respondent from which it could reasonably be inferred that the service of the complainant Muhammad Islam was terminated by the respondent for an act of misconduct not connected with any of the abovementioned industrial disputes, which were pending at the time of the termination of the petitioner's employment:"

4. It will, therefore, be seen that the Labour Court did not record the finding/pending disputes in any manner were connected with the misconduct under inquiry. The third in series is the order of the Appellate Tribunal dated 22‑3‑1971. The observations made in para. 7 of the order read as under: "From the evidence on the record, I find that Muhammad Islam stated that he was concerned with Industrial Disputes Nos. 9, 12, 14 and 37 of 1967, especially the Dispute No. 37 in which one of the demands related to his reinstatement. No evidence in rebuttal was produced. This shows that the disputes concerning the respondent were pending and, therefore, the application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 was maintainable." Firstly it was pointed out that no statement of Muhammad Islam, respondent No. 3 to the effect that Industrial Dispute No. 37 contained a demand of his reinstatement is available on record. Learned counsel for respondent No. 3 admitted that Industrial Dispute No. 37 of 1967 obviously cannot contain the demand of reinstatement, as the incident took place on 26‑5‑1968 and the ‑order of dismissal was passed on 20‑8‑1968. Again, the finding recorded is not that the pending disputes pertain to the question of misconduct under inquiry, rather the finding recorded by the Appellate Tribunal was that this shows that disputes concerning respondent were pending and as such the application under section 38 was maintainable. The mere finding that dispute concerning the respondent was pending is not sufficient as the jurisdictional fact required to be determined was that the misconduct or default or dereliction of duty for which dismissal took place was connected with the dispute that was pending. This was neither the case of the petitioner nor the Appellate Tribunal has recorded the necessary determination so as to hold that the complaint under section 38 of the Ordinance was maintainable. In support of the above‑noted view, reference may be made to the judgment of Shafiur Rahman, J. in Writ Petition No. 920/S of 1971 which was accepted vide order dated 17‑12‑1971, observing that such jurisdictional fact required for maintaining the proceedings under section 31 of Ordinance LVI of 1959 was not established. The impugned orders were declared to be without lawful authority and of no legal effect. For the reasons given above the impugned order of the Labour Court dated 10‑5‑1970 and the order dated 22‑3‑1971 are hereby declared to have been passed without lawful authority and hence of no legal effect. The writ petition succeeds and is allowed in the above terms. The parties are, however, left to bear their own costs. A.A./P‑64/L Petition accepted.