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Appeal No. 464 of 1975, decided on 18th March 1976.

- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15(s)(h) - Misconduct - Domestic enquiry-Scope of S. 25-A, Industrial Relations Ordinance, 1969 Court, to see not only volume of enquiry proceedings but also to see substance of charge levelled and that workman was not prejudiced in his defence-Workman not basically charged of any serious misconduct but for minor act of undesirable behaviour which could be termed at most as improper presentation of his misgivings -Workman, in circumstances, held, could hardly be charged of serious misconduct entailing penalty of dismissal-Dismissal order, in circumstances, set aside and intervening period of non-employment treated as leave without pay being sufficient punishment for alleged misbehaviour.

A. D. Baluch for Appellant.

Malik Mumtaz Akhtar for Respondent.

An appeal has been filed by Faqir Muhammad ex-workman of Bure wallah Textile Mills. Burewalla hereinafter mentioned as the respondent Management against the order of the learned Junior Labour Court, Multan dated 11-12-75 whereby his petition for re-instatement under section 25-A of the Industrial Relations Ordinance, 1969, hereinafter mentioned as the Ordinance, was dismissed. He was alleged to have talked rudely and insolently to the Incharge, Canteen of the appellant-Management on 28-7-15 upon which he was charge-sheeted on the same date and the domestic enquiry taken up against him resulted in the order of his dismissal on 12th August 1975.

In the learned lower Court, the appellant examined himself and Mukhtar Ali, Canteen Incharge in support of his petition while Captain Abdul Hakim Security Officer, B. T. M., Burewalla and Saeed-ud-Din Hyder, Labour Officer, B. T. M, Burewalla were examined on behalf of the respondent-Management in rebuttal. The appellant gave a statement to the effect that on 28-7-75 the Canteen Incharge became angry with him on some minor negligence of duty and started abusing him and as the appellant asked him to take up legal action instead of abusing him he got flared up and by catching hold of him by his shirt started beating him. He further stated that two Canteen employees present there rescued him from the Canteen Incharge, that this incident led to the charge-sheet of the appellant and his ultimate dismissal, in regard to which he was not supplied with the copies of the enquiry proceedings nor was he given the second show-cause notice and that the witnesses examined against him in the domestic enquiry were threatened by the Management that they would be dealt with in the manner of the appellant if they did not give evidence against him,. In the cross-examination he stated that he had thumb-marked Exh. R-2 and Exh. R-3 at the request of the Management while he did not know if be also thumb-marked Exh. R-4. The first two documents are the charge-sheet and the second show-cause notice respectively while Exh. R-4 is the report of the Canteen Incharge to the Labour Officer. Mukhtar Ali, Canteen Incharge, gave an adverse statement to the appellant defence and supported the case of the Management. The other witnesses examined on behalf of the Management also gave similar statements.

The learned lower Court being impressed by the fact that elaborate enquiry proceedings were taken up and concluded by the Management dismissed the petition of the appellant. The important point to be seen in the enquiry proceedings of an industrial worker is not only the volume of enquiry proceedings but the substance of the charge made against the worker and to see that he has not been prejudiced in his defence in the domestic enquiry. In the present case it is pertinent to note that the appellant was not basically B charged with any serious kind of misconduct entailing penalty of dismissal The contents of the charge-sheet Exh. R-2 are reproduced hereunder :-

Obviously the allegations made against the appellant through the' charge-sheet do not amount to any of the misconducts defined in Standing Order 15(3) of the Standing Orders Ordinance. At the most the allegations might be termed as undesirable behaviour or at the most improper presentation of the appellants' misgivings, which could hardly be made a subject of enquiry against him for the penalty of dismissal from service. The learned counsel for the respondent-Management refers me to clause (h) of Standing Order 15(3) in regard to acts and omissions amounting to misconduct thereunder which runs as follows:-

"Riotous or disorderly behaviour during working hours at the establish ment or any act subversive of discipline."

The wording of the relevant clause given above cannot at all stand in line with the allegations made in the charge-sheet which cannot by any stretch of imagination amounts to riotous or disorderly behaviour nor to any act serious to such an extent to be dubbed as subversive of discipline. Conse quently the appellant cannot be said to have been rightly charge-sheeted for any serious misconduct calling for the penalty of dismissal. On the contrary the situation called for the shaking up of the appellant with some minor punishment of warning or censure at the first chance of his unwarranted behaviour during duty hours. This being so the impugned order upholding the dismissal of the appellant cannot be sustained and is therefore set aside. The appeal being accepted the appellant is directed to be re-instated within a period of 15 days, the period of his non-employment being treated as 'Leave D without pay , which would suffice to punish him for the misbehaviour, levelled against him. The file may be consigned.

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