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Case No. 18 (93) of 1980, decided on 30th March, 1981

‑‑‑ Ss. 5 (1) & 6‑Refusal to comply with order‑Misconduct ---Verbal order made by immediate superior to perform duties of higher post‑Workman refusing to obey unless written order made by competent authority‑Verbal order, in circumstances, held, illegal and unreasonable‑Refusal to obey same, held, further, did not amount to misconduct or offence‑Consequential dismissal order set aside with back benefits‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (V1 of 1968), S. O. 13 (3) (a).

Mirza Salim Baig for Applicant.

Saifullah Sidddqui for Respondents.

is This is an application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, inter alia for directions that the appli cant's removal from service by the respondent is illegal and for an order for his re‑instatement with back benefits.

2. The respondent Karachi Electric Supply Corporation maintains two medium pressure boilers at its Korangi Creek Thermal Power Station, each with a panel known as Boiler Panel Nos. 1 and 2, which are required to be attended during each shift by three Boiler Operators. The junior most of them is known as Boiler Operator Class II (Pay scale grade III‑A) the others being Boiler Operator Class I (Grade IV) and Chargeman (Boiler) (Class V). The reorganisation set up of the Thermal Power Station Operational staff manning the Boilers (vide Inter‑Department Memo reference No. Est. 14/78/3665, dated 23rd October, 1978) shows that there were 12 posts of Chargeman (Boiler) and 16 posts of Boiler opera tors Class I/Class 11. (Pay Scale IV and III‑A). The applicant S. Sibte Zabid Naqvi was appointed on 15th February, 1972 as Boiler Operator Class II (Grade III‑A) and was posted to attend on Boiler Panel No. 2. The respective duties of each of the three class of Boiler Operators does not appear to be clearly defined or demarcated anywhere. There is however a job definition "Boiler Operator" given in clause 2.2 of the Manual of Training Centre of the Karachi Electric Supply Corporation, but the duties mentioned therein do not specify the respective duties to be performed by each of three classes of Boiler Operators. Thus the said definition states that the duty of "Boiler Operator" is to operate automatically fired Boilers--------Observe temperature and draft meters on panel, verify specified operation of automatic combustion control system, feed water regulator, stoker pulverizer and burners, turn valves and adjust control to set specified fuel feed, water level and steam pressure on Boiler; observe Boiler and auxiliary units to detect malfunctions and make minor repairs etc."

3. It was admitted by Mr. Saifullah Siddiqui Labour Advisor of the KESC and, it is also confirmed by the witnesses examined before the Enquiry Officer, that in the absence of separate definition of the three classes of Boiler Operators above mentioned, the duties of each of them were considered practically of the same nature with the result that even a junior operator Class I or II could attend to the Boiler Panel without Chargeman (Boiler) being present. It is submitted that the Management was taking duties of Chargeman (Boiler) from the Junior Boiler Operators Class I and II and was compelling them to perform the higher duties of the Chargeman (Boiler) without issuing officiating letters to theta or paying them any officiating allowance. In this state of affairs, it is the case of the applicant that soon after his appointment as Boiler Operator Class II he was compelled to discharge the duties of Chargeman (Boiler) on Boiler Panel No. 2 i.e. two grades higher than his initial appointment. This fact according to him could be verified from the log‑sheet of Boiler Panel No. 2 of the Thermal Control room, for the months of January/February, 1976. The applicant therefore, felt that he was justly entitled to be promoted to the post of Chargeman Boiler Grade V. In spite of many repre sentations in this regard, he was denied promotion and instead, another person, one Kanwar Sarwar Gill, was brought from outside and posted as Chargeman (Boiler) Grade V on Panel No. 2. This caused great frustra tion and disappointment to the applicant, so much so that when he was promoted as Boiler Operator Class I on 31st May, 1976, he declined to accept the promotion. Therefore, the Management treating this as an act of indiscipline and issued charge‑sheet on 18th August, 1976 which ended in his being debarred from future promotion. Thereafter, the applicant adopted a hostile and non‑cooperative attitude and committed certain acts for which he was issued warning letters, show‑cause notices and charge- sheets from time to time. A few instances of which are mentioned in the next paragraphs.

4. On 5th April, 1977 he was asked to explain why he had disobeyed the orders of the Shift Engineer by reporting for duty at his own will in the morning shift instead of the normal evening shift. His explanation was not found satisfactory and he was charge‑sheeted on 8th April, 1977 for which he tendered apology. He was refused festival holidays on 9th/ 10th Moharram corresponding to 21^st 22^nd December 1977 on ground of continuity of electric supply to the public. Despite it, he absented himself from duty and was marked absent without leave. So he lodged a repre sentation with Labour Director, Government of Sind, endorsing copies to the Federal Ministry and filed grievance petition before the 1st Labour Court, Karachi, claiming that he was entitled to festival holidays. Again, festival holidays were denied to him on 10th/11th December, 1979 corres ponding to 9^th l0th Moharram and, as he absented himself from duty, he was charge‑sheeted and enquiry was held. He was issued, the punish ment imposed was stoppage of his increment for one year.

5. The present petition relates to the alleged misconduct which occurred on 16th March, 1980 regarding wilfull disobedience to lawful orders. At 3‑15 p. m. on that day he was ordered by Senior Foreman (Boiler) Sadiq Ali to change over duty to Boiler Panel No. 1 from No. 2 was there was no operator on Panel No. 1 Applicant refused to go on Panel No. 1 until he was given an order in writing saying that the order of the foreman Boiler was both illegal and unreasonable. The Operation Engineer, Abdul Manan Khan offered to give the order in writing, but the applicant declined to accept it and wanted the written order of the Superintending Engineer (Operation). Therefore, the Management issued a charge‑sheet on 30th March, 1980 for wilful disobedience of lawful orders of his superiors which amounted to misconduct under Standing Order 13 (3)(a) of the West Pakistan Industrial and Commercial Establish ment (Standing Orders) Ordinance, 1968. He failed to submit reply and a domestic enquiry was instituted by Saeed Mahmood. M. E. (Mechani cal). The applicant appeared before the Inquiry Officer. Sadiq Ali. Senior Foreman (Boiler) and Abdul Marian, Operation Engineer, were examined as Management witnesses. The Foreman was cross‑examined at length by the applicant. The applicant then gave his own statement before the Inquiry Officer in which he admitted that he had refused to go the Boiler Panel No. 1 as ordered by the Senior Foreman (Boiler) and also by Abdul Manan the Operation Engineer. He stated that he had been working on Panel No. 2, since 1973 through a duty rota issued by Mr. Akhlaqullah, the former S. E. (Operation) and therefore, he required the written orders of the said S. E. Operations for going to Panel No. 1 which were not given to him. Further he stated that one Muhammad Maroof, Boiler Operator was working on Panel No. 1 at 3‑15 p. m. and that he could have been permitted to do overtime, as before and there fore, Senior Foreman had no justification to curtail his overtime. When cross‑examined by the inquiry Officer, why he did not accept the offer of written order of Abdul Marian, Operation Engineer, he replied that Operation Engineer was "powerless" and because the order was unreason able and not lawful, because as Junior Boiler Operator (Class I), he was not bound to perform the higher duties as Chargeman (Boiler) on Panel No. 1.

6. The Enquiry Officer submitted his report. He held that the appli cant had worked under direct administrative control of the Operation Engineer and therefore, need not have asked for written orders of the Superintending Engineer (Operation). Further, applicant had no justifi cation to refuse to perform duty on Panel No. 1 on the plea that overtime of Muhammad Maroof was being curtailed as he was not supposed to interfere in the arrangements made by his Superior with regard to detail ing staff on overtime. He therefore, found the charge of wilful disobe dience of the lawful order of Senior Foreman (Boiler) and Operation Engineer had been fully established against the applicant.

7. In view of the adverse report of the Inquiry Officer, the res pondent issued a second show‑cause notice on 1st June, 1980 as to why he should not be dismissed from service. The applicant submitted a reply on 4th June, 1980, in which be repeated his contentions that the order of Senior Foreman (Boiler) to shift to Boiler Panel No. 1 from Panel No. 2 was neither lawful nor reasonable. He admitted that there was no justi fication for Senior Foreman (Boiler) to stop the overtime of Muhammad Maroof, who had previously been doing overtime. Applicant further stated that the Senior Foreman (Boiler) could have ordered Kanwar Sarwar Gill who was at that time, on duty on Panel No. 2 as Chargeman (Boiler), to go to Panel No. 1 instead of the applicant. That in ordering the applicant to move over to Boiler Panel No. 1 the object was to finish his claim to be promoted as Chargeman (Boiler), on Panel No. 2 on which he had been performing duties since 1st March, 1973. The said order was further illegal because the applicant who was junior Boiler Operator, cannot be ordered to do higher duties of Senior Operator, Chargeman (Boiler).

8. The reply of the applicant was not found satisfactory and after granting him an interview the applicant was dismissed from service on 28th June, 1980. Incidentally, it may also be mentioned that during the pendency of the enquiry it was alleged that the applicant did not attend duties on Boiler No. 2 from 4th May, 1980 onwards, although he was seen present in the premises. He was therefore, charge sheeted on 19th May, 1980, to which he submitted a reply that Kanwar Sarwar Gill was sitting constantly on his seat on Boiler Panel No. 2 and refusing to allow him to work and that he was told that he was being transferred to some other Boiler. His reply was not found satisfactory and another enquiry was instituted by Mazhar Hussain, Superintending Engineer (E)/Incharge, KESC who after examining witnesses for the Management including Kanwar Sarwar Gill and recording the statement of the applicant, found the charge established against the petitioner. However, since the petitioner had already been dismissed from service on 28th June, 1980, after the conclusion of the earlier enquiry conducted by Saeed Mahmood, the pro ceedings on this enquiry had become infructuous and were dropped.

9. The present application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 was filed on 26th May, 1980. It con tained several prayers including prosecution for unfair labour practice, setting aside the order of dismissal and for his reinstatement and finally order of being fresh enquiry.

10. The respondent filed written statement denying the allegations made by the applicant and referred to several acts of insubordination and non‑co‑operation and enquiry proceedings conducted against the applicant. It was pleaded that the applicant was afforded full opportunity to defend himself and that pleas and justifications raised by him for disobeying the lawful orders of his superiors were invalid and without any foundation.

11. I have heard the applicant in person and Mr. Safiullah Siddiqui, learned Representative for the respondent. The applicant made the following submissions :‑

(a) The organization chart showed that every boiler was required to be attended and manned by Chargeman (Boiler).

(b) Although there were 12 sanctioned posts of Chargeman (Boiler) only one has so far been appointed and the junior Boiler Opera tors were being compelled to do higher duties of Chargeman (Boiler) without officiating allowance or officiating orders.

(c) The order of Senior Foreman (Boiler) Mr. Sadiq Ali directing the applicant to do duties of Boiler Panel No. 1 was illegal and un justified because Boiler Panel No. I was not unattended at that time, since Muhammad Maroof was already doing overtime duty at 3‑15 p. m. when the Foreman issued the order to the applicant.

(d) In the past, not only Muhammad Maroof, but other Boiler Opera tors were doing overtime duty on Panel No. 1 even when he was present on Boiler Panel No. 2.

(e) On 16th March, 1980 Mr. Kanwar Sarwar Gill was attending as Chargeman Boiler Panel No. 2 in addition to the applicant. Therefore, he could also have been ordered to go on Boiler Panel No. 2 to stop the overtime.

(f) The object of the order was mala fide and intended to shift him from his old place of Boiler Panel No. 2 and finish his claim for promotion to Chargeman (Boiler) which he was performing since 1st March, 1973 on Boiler Panel No. 2.

(g) It is illegal for Junior Operator to do duties of Senior Operator namely Chargeman (Boiler).

(h) Only enquiry report was supplied, but copy of proceedings were not supplied although demanded by him and that it was falsely stated in the enquiry report that the applicant had not cross‑examined the Management witnesses when, infact, he had cross‑examined both the witnesses Sadiq Ali Foreman and Mr. Abdul Manan, Operation Engineer, at Great length who had signed these statements.

12. I have considered these submissions in the light of the facts and circumstances above mentioned, and I am inclined to agree with the main submission that the order issued to the applicant by the Senior Foreman was not legal in the absence of written officiating order. It was illegal and unreasonable for the Management to compel the applicant to do duties of Chargeman (Boiler) on Panel No. I without issuing him written officiating order. Panel No. 1 had to be attended by a Chargeman (Boiler) in accordance with the organization set up for the operation of the two Boilers.

13. Mr. Saifullah Siddiqui has not explained to my satisfaction why such officiating order could not have been issued and why it could not have been procured at that time. It was not difficult for Mr. Abdul Manan Khan, Operation ,Engineer, to have obtained a short order from the competent authority who must have been present at the Power Station before 3‑15 p. m. on that day. All that Mr. Siddiqui stated was that even if no written order was forthcoming, yet it was the duty of the applicant to have performed the duties of Chargeman (Boiler) because Boiler could not be left unattended. It is true in fact, the applicant could have done the duties of Chargeman (Boiler) even without such an officiating order, as he had been doing in the past. But to put the blame on the applicant, is to put a premium on laxity and in consideration on the part of the Management who knew very well that the organization set‑up relating to the operation of the two Boilers, required that each Boiler shall be man ned by a Chargeman (Boiler) for every shift. If the Management chose to let the post of Chargeman (Boiler) remain unfilled for reasons not satisfactorily explained, they did so. at their own risk. It cannot be legal for the Management to take advantage of their laxity in this connection.

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