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Appeal No. HYD‑137 of 1968, decided on 17th January 1969.

(a) Industrial and Commercial Employment (Standing Orders), Ordinance (III of 1960),

----S. O. 13(3)(1)‑Misconduct‑Negli--gence, unless habitual, not sufficient for charge of misconduct.

Mere negligence would not amount to misconduct within the meaning of Standing Order 13(3)(1) to the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. In order that a workman may be guilty of misconduct, it is not sufficient that the workman was once guilty of negligence. He should be guilty of habitual negligence.

---S. O. 13 ‑Neglect of work Non‑performance of work not assigned‑=No neglect.

(c) Industrial Disputes Ordinance (LVI of 1959 read with Industrial and Commercial Employment (Standing Orders) Ordinance (III of 1960),

----S. O. 13(3)(1)‑Industrial Court competent to refuse permission for dismissal on merits of case‑Accused worker charged of misconduct due to neglect of work‑‑Records indicating worker not guilty of habitual neglect of work‑Industrial Court, in circumstances, held, competent to refuse permission for dismissal.

It was contended that the Industrial Court, under section 30(2), industrial Disputes Ordinance, 1959, while considering an application for permission for dismissal was only to see as to whether the domestic enquiry was fair and in keeping with the principles of natural justice; and if the domestic enquiry, was fair and impartial the Industrial Court had to grant such permission. Findings of the domestic enquiry revealed that the worker was not found guilty of habitual neglect of work in terms of Standing Order 13(1)(3), Industrial and Commercial Employment (Standing Orders) Ordinance, 1960

Held, section 30(2) of the Industrial Disputes Ordinance, 1959, does not lay down the grounds on which the industrial Court would refuse to grant the requisite permis sion. Where a Court has a right to grant permission, it has also a right to refuse the same. In the absence of anything in section 30(2) of the Ordinance limiting the discretion of the Court in refusing to grant permission, the Court will be governed by the general principle of equity and good conscience. Where the law does not lay down that mere negligence is misconduct and is punishable with dismissal from service, the Industrial Court would be quite justified in refusing to grant permission td terminate the services of an employee.

Sirajul Huq Qureshi for Appellant.

Ale Ahmad for Respondent No. 1.

Date of hearing: 17th January 1969.

This is an appeal against an order, of the learned Chair man of the 1st West Pakistan Industrial Curt, Karachi, dated 7th October 1968. The impugned order was passed on an application under section 30(2) of the Industrial Disputes Ordinance, 1959 (hereinafter called the repealed Ordinance), for permission to dismiss the respondent from service on the ground that he had been found guilty of misconduct as defined in clauses (c) and (c) of Standing Order 13(3) of the Schedule attached to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. It is not necessary for the disposal of this appeal to give the facts leading to the charge --sheet in detail. It would be sufficient to state that the respondent was charge‑sheeted‑ for not having realised rent from certain licensees of the canteens and for failure to bring ft to the notice of the authorities that the licensees had defaulted in payment‑of their dues.

2. The respondent was charge‑sheeted and Mr. Naseerul Hasan, Assistant Labour Officer, was appointed the Enquiry Officer. The Enquiry Officer came to the following conclusion :‑

"There is no evidence to prove that Mr. Saiful Kabeer was disloyal and dishonest in providing opportunities to the licenser s to hold back payment of the licence‑fee and cash securities thereby giving undue advantage to the licensees at the cost of Road Transport Corporation. In fact all this happened due to sheer neglect on the part of Mr. Saiful Kabeer which warrant severe punishment but the charges of disloyalty and dishonesty are not proved. The prosecution side has also failed to substantiate the charges of disloyalty and dishonesty."

3. The learned Chairman of the 1st West Pakistan Industrial Court rightly held, in view of the conclusion of the Enquiry Officer reproduced above, that mefe negligence would not amount to misconduct within the meaning of Standing Order 13(3) (i) to the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. A In order that a workman may be guilty of misconduct, it t not sufficient that the workman was once guilty of negligence. He should be guilty of habitual negligence. The responden therefore, could not be dismissed in the absence of any, findin of misconduct. The learned Chairman, therefore, dismissed the application for permission to dismiss the respondent. .

4. Mr. Sirajul Haq Qureshi, the learned Representative for the appellant, contended in the first place, that the finding of the Enquiry Officer would come to this that the respondent was guilty of neglect of work. Under Standing Order 13(3)(i), a workman would be guilty of misconduct if he is found to be guilty of habitual negligence or neglect of work. 1 he finding of the Enquiry Officer reproduced already, does not hold that the respondent was guilty of neglect of work. A person can be said to neglect his work 'f he does not perform any work that is assigned to him. If the Bus Driver has t take the bus on some route and he does not take it, he would be guilty of neglect of work. The failure on the part of the licensees to make payment cannot be attributed to the res pondent's duty. The respondent, admittedly, after he came back from leave, informed the authorities concerned about the default committed by the licensees.

5. In the second place, it was contended by Mr. Sirajul Haq Qureshi that under section 30(2) of the repealed Ordinance all that the Industrial Court, while considering the application to grant permission to dismiss an employee, had to see was as to whether the domestic enquiry was fair and in keeping with the principles of natural justice. If the domestic enquiry was fair and impartial, the Court had to grant permission to the Management to dismiss the employee. There is not much force in this contention. Section 30(2) of the repealed Ordinance do not lay down the grounds on which the Industrial Court would refuse to grant the requisite permission. Where a Court has a right to grant permission, it has also a right to refuse the same. In the absence of anything in section 30(2) of the repealed Ordinance limiting the discretion of the Court in refusing to grant permission, the Court will be governed by the general principle of equity and good conscience. Where the law does not lay down that mere negligence is misconduct and is payable with dismissal from service, the Industrial Court would be quite justified in refusing to grant permission to terminate the services of an employee. The circumstances of this case are covered by this observation. No other point was urged. The appeal is dismissed.

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