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Constitutional Petition No. D‑1709 of 1978, decided on 26th January, 1382 .

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) ‑

‑‑‑ S. 1(4) (c) and S. O. 15(3) read with Sind People's Local Council Servants (Efficiency and Discipline) Rules. 1974, rr. 2(g) and 5(3)‑Karachi Metropolitan Corporation‑‑Statutory Corpo ration being run under Provincial Government and having statu tory rules relating to its employees West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 not applicable to its employees ‑Employee of. Metropolitan Corporation convicted by criminal Court under S. 4/5 of Gambling Ordinance‑Dismissed from service on basis of such conviction after show‑cause notice and considering his explana tion‑Contention that dismissal order was invalid having been passed without charge‑sheet and enquiry required under S. O. 15(3) of West Pakistan Industrial and Commercial Employment (Stand ing Orders) Ordinance, 1968 rejected in view of provisions of r. 5(3) of Sind People's Local Council Servants (Efficiency and Dis cipline) Rules, 1973 ‑‑Remedy of writ before High Curt, further held, discretionary‑High Court may in a fit case decline to exer cise writ jurisdiction when it will not foster justice but will encourage anti‑Social acts‑Petitioner admittedly gambling at place of duty‑Exercise of jurisdiction, in circumstances, held, would‑have been refused‑Writ jurisdiction‑Constitution of Pakistan (1973), Art. 199.

K. D. A. v. Presiding Officer, Sind Labour Court, Karachi and 2 others P L D 1976 Kar. 514 rel.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑ S. O. 15(3)‑Misconduct‑Conviction by criminal Court for gambling‑‑Not covered by definition of misconduct.

Muhammad Ali Shaikh for Petitioners.

S. M. Muslim Nayvi for Respondents.

Date of hearing: 26th January, 1982.

.‑This petition is directed against the order dated 6th December, 1978 passed by the learned Sind Labour Appellate Tribu nal allowing the respondent No. 2's appeal against the order dated Ist January, 1978 passed by the learned Ist Sind Labour Court at Karachi in the application Nos. 42 and 43 of 1977 under section 25‑A of the Industrial Relations Ordinance, 1969.

2. The brief facts leading to the filing of the above petition are that the petitioners alongwith one Abdul Wahid were charged under sec tion 4/5 of the Gambling Ordinance for gambling at the K. M. C. Fire Brigade Building on 16th November, 1975 at 14‑10 hours. The charge was framed by the A. C. and S. D. M., City Karachi on 10th April, 1976. The petitioners pleaded not guilty. However, on 28th June, 1976 advocate for the petitioners and also of said Abdul Wahid filed an appli cation pleading guilty. Thereupon all the 3 accused were convicted and were fined Rs.45 or in default to undergo R. I. for 10 days. It may be advantageous to reproduce hereinbelow the petitioner's above application and the order passed thereon:‑‑‑

"In the Court of A. C, and S. D. M. at Karachi

State ....... Vs . . 1. Abdul Waheed

2. Abdul Qayoom

3. Muhammad Nawaz

U/S 4/5 Gambling Ordinance

It is respectfully submitted that all the accused persons are K. M. C. servants and the above case is pending for the last about one year due to the fault of prosecution.

That all the accused persons are attached with Fire Brigade and they are supposed to be on duty for 24 hours.

That for the sake of Government duty we all the accused persons have decided to plead guilty to the charge.

It is, therefore, prayed that this Hon'ble Court may be pleased to decide the case on the plea of accused persons.

Karachi: Sd/‑

Advocate for Applicant

Dated: 28‑6‑1976

Sd/‑ ABDUL QAYOOM

Accused person

On their own admittance I convict A. Waheed, Muhammad Nawaz and Abdul Qayoom under section 4/5, Gambling Ordinance to pay a fine of Rs.45 (Rupees forty‑five) only or in default to undergo R. I. for 10 days.

Announced.

Sd/‑ A. C. and S. D. M., City Karachi

28‑6‑1976,"

3. It seems that after the above conviction the information was con veyed by the police to respondent No. 2 Corporation, whereupon a show cause notice was issued inter alia to the petitioners for their above mis conduct and to show cause as to why action should not be taken against them. They submitted their reply, which according to respondent No. 2 was found unsatisfactory. Consequently, they were dismissed from service by an order dated 16th September, 1976. The petitioners being aggrieved by the above dismissal order filed an appeal under the rules which appeal was dismissed by the Chief Officer K. M. C. by an order dated 29th January, 1977 (Annex. D/I to respondent No. 2's counter affi davit.) It further seems that thereafter the petitioners filed an application under section 25‑A of the I. R. O. before the Ist Labour Court at Karachi against the above dismissal order, which was allowed by the learned Labour Court by the aforesaid order dated 1st January, 1978 on the ground that there has been violation of the West Pakistan (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance) inasmuch as the petitioners were not charge‑sheeted and no inquiry was held. Respondent No. 2 being aggrieved by the above order filed appeal before the learned Sind Labour Appellate Tribunal (Appeal No. KAR‑35/78) which was allowed by the aforesaid order dated 6th December, 1978 on the ground that admittedly the petitioners were convicted for gambling and their dismissal was based on that account. The petitioners being aggriev ed by the above order have filed the present petition.

4. The above petition was admitted by an order dated 2nd January, 1979 on the ground that S. O. 15(3) of the Ordinance which defines mis conduct does not cover conviction of a workman for gambling.

5. Mr. Muhammad Ali Shaikh learned counsel for the petitioners in support of the above petition has made the following submissions:‑

(i) That since S. O. 15(3) of the Ordinance which defines misconduct does not cover the conviction for gambling, the order of the learned Ist Sind Labour Appellate Tribunal is not sustainable.

(ii) That admittedly the petitioners were not charge‑sheeted and no inquiry was held, and, therefore, the above order is also not sustainable on that account,

6. On the other hand Mr. S. M. Muslim Naqvi, learned counsel for the respondent No. 2 has made the following contentions:‑

(i) That in view of the proviso to sub‑clause (c) of section 1 of the Ordinance the said Ordinance is not applicable to respondent No. 2 Corporation for the reasons that it has its own statutory rules.

(ii) That in view of the definition of misconduct given under rule 2(g) of the Sind People's Local Council Servants (Efficiency and Discipline) Rules, 1974, hereinafter referred to as the Rules, the conviction for gambling is covered.

(iii) That under rule 5(3) of the Rules the inquiry could have been dispensed with.

7. Reverting to the first contention of Mr. Muhammad Ali Shaikh that S. O. 15(3) of the Ordinance which defines misconduct does no cover the conviction for gambling, it may be observed that this seems to be correct as S. O. 15 (3) of the Ordinance provides following acts and omissions as misconduct :‑

(a) Wilful insubordination or disobedience, whether alone or in com bination with others, to any lawful and reasonable order of a superior;

(b) theft, fraud, or dishonesty in connection "with the employer's business or property

(c) wilful damage to or loss of employer's goods or, property;

(d) taking or giving bribes or any illegal gratification;

(e) habitual absence without leave or absence without leave for more than ten days;

(f ) habitual late attendance;

(g) habitual breach of any law applicable to the establishment ;

(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline:

(i) habitual negligence or neglect of work ;

(j) frequent repetition of any act or omission referred to in clause (l) ;

(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force or law ;

(l) go‑slow."

If the matter would have rested only on the above provisions of the Ordi nance Mr. Muhammad Ali Shaikh's above contention might have some force. However, rule 2(g) of the Rules which defines misconduct as follows will cover the conviction of the petitioners for gambling at the place of duty:‑

"(g) "misconduct" means conduct prejudicial to good order of service discipline or contrary to West Pakistan Municipal Servants (Conduct) Rules, 1963 or unbecoming of an officer and a gentleman and includes any act on the part of a council servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the council or any Council Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions .of service of a council servant."

Furthermore, we are inclined to hold that if there are statutory rule framed under law by a Statutory Corporation relating to its employee and if there is no inconsistency between the provisions of the Ordinance and the Rules, the Statutory Corporation can press into service its own statutory rules. Furthermore, the contention of Mr. Muslim Naqvi that first proviso to clause (c) of section 1 of the Ordinance itself provide that nothing in this Ordinance shall apply to industrial and commercial establishment carried on by or under the authority of the Federal are any B Provincial Government, where statutory rules of service, conduct or dis cipline are applicable to the workmen employed therein. However, it was contended by Mr. Muhammad Ali Shaikh that respondent No. 2 being a statutory corporation is not covered by the above proviso. In our view the above contention is devoid of any force inasmuch as the Ordinance is applicable to industrial and commercial establishmedts. I cannot be denied that respondent No. 2 can be termed as an establishment which is being run under the Provincial Government though it has a corporate status. In support of the above contention Mr. Muslim Naqvi has referred to the case of K. D. A. v. Presiding Officer Sind Labour Court Karachi and 2 others (P L D 1976 Kar. 514‑‑) wherein a learned Single Judge of the Erstwhile High Court of Sind and Baluchistan held that since the K. D. A. has its own statutory rules namely the K. D. A. Employees (Efficiency and Dis cipline) Regulation, 1970 the Ordinance was not applicable to it though a workman can approach a Labour Court under the 1. R. O. on the ground that the K. D. A. has not followed its own statutory rules which question can be inquired into by the Labour Court.

8. With reference to the second contention of Mr. Muhammad Ali Shaikh that since the petitioners were not charge‑sheeted and no inquiry was held as required under the provisions of the Ordinance, it may be pertinent to refer to rule 5(3) of the Rules which empowers the competent authority to dispense with the inquiry in a fit case. It was contended by Mr. Muhammad Ali Shaikh that no order was produced by respondent No. 2 before the Labour Court or before this Court to show that in fact the inquiry was dispensed with under the above rules. However, we find from the contents of the petition that no such averment has been made by the petitioners in the petition and, therefore, in our view we cannot take note of the above averment of% the learned counsel for the petitioners. In para. 6 of the counter affidavit respondent No. 2 has made following submissions :‑

"6. With regard to the contents of para. 2, 3, 4 and 5 it is stated that the respondent Corporation, received a report from Eidgah Police Station on 7th March, 19o that one Sheikh Abdul Wahid son of Abdul Karim was indulging in anti‑social activities and that on 16th November, 1975 he was arrested for keeping a gambling den under section 4J5 of the Gambling Ordinance and that he had been arrested alongwith the petitioners No. 1 and 2 and challenged in the Court of A. C. M. XIX, Karachi for trial. As petitioners Nos. 1 and 2 pleaded guilty, therefore, they were convicted and were fined Rs.45 each. Accordingly a show cause notice was served upon the petitioners for their misconduct and as their explanations were not found satisfactory, therefore, they were dismissed from KMC service on 16th September, 1976."

This para. has not been denied by the petitioners in their rejoinder. In this view of the matter, it is an admitted position that before the peti tioner's dismissal from the service, they were served with a show‑cause notice and they also submitted a reply to it, which was found unsatis factory as admittedly they were convicted for gambling. After that they availed the remedy of appeal provided under the Rules as mentioned hereinabove and the appeal was dismissed. In these circumstances the above contention of Mr. Muhammad Ali Shaikh has no force.

9. Even otherwise remedy of writ is a discretionary remedy pro vided by the law and the High Court in a fit case may decline to exercise; its writ jurisdiction when it will not foster justice but will not encourage anti‑social acts. It is an admitted position that the petitioners were gambling at the place of duty at the fire brigade station. In view of the above facts we would not have even otherwise exercised our writ jurisdic tion in order to encourage gambling by the employees of respondent No. 2 at the place of duty.

10. For the aforesaid reasons the petition is dismissed with no order as to cost .

Petition dismissed.

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