Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Appeals Nos. KAR‑571 and KAR.572 of 1980, decided on 19th May, 1951.
‑‑ Domestic enquiry‑Copies of statements of witness‑Supply of copies to accused‑Not a requirement of law‑Witnesses examin ed in presence of accused with opportunity of cross‑examination No specific demand made for supply of such copies‑Only grievance to that effect made in reply to second show cause notice‑Copies of enquiry report supplied‑Entire enquiry proceedings record made available before Labour Court and opportunity of examination afforded to accused during Court proceedings‑Non‑supply of copies of statements of witness, in circumstances, held, would not vitiate or invalidate proceedings and not violative of principles ,of natural justice.
Punjab Road Transport Corporation v. Punjab Labour Appel late fribunal 1973 S C M R 455; Associated Electrical Industries (Pak.) LM. Karachi v. Employees Union P L D 1973 Kar. 167 and Messrs Intivnational Laboratories Employees Union v. Sind Labour Appellate Tribunal 1976 P L C 38 distinguished.
Ahmed Investments Ltd. v. Sind Labour Court No. IV. 1.978 P L C 567 and Muhammad Qasim v. Sandaz (Pak.) Ltd. 1980 P L C 997 rel.
(b) West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance (VI of 1968)‑
‑‑ S. O. 15 (3)‑Misconduct‑Senior Foreman under orders of Manager recording instructions in Instruction Book‑Accused Foreman despite direction refusing to sign Instruction Book and also refusing to receive letter containing advice for noting and signing Instruction Book‑Act o: accused, in circumstances, held, not merely disregard or simple disobedience of rules or orders but constituted misconduct of wilful disobedience of lawful and reasonable order of superior.
‑‑‑‑ S. 8‑A‑Disciplinary proceedings‑Initiation of, against office- bearer of‑trade union during pendency of application for registra tion of trade union‑Not barred‑Only infliction of punishment barred.
(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968).‑
‑‑‑ S. O. 15 (4)‑‑Charge‑sheet‑Service of‑Not a requirement of law‑Act of alleged misconduct must be brought to notice of accused‑Accused informed of allegation‑Disciplinary proceed ings initiated‑Charge‑sheet served thereafter but before enquiry proceedings‑Contention that domestic enquiry was vitiated for reasons that charge‑sheet was served after commencement of disciplinary proceedings, in circumstances, rejected.
‑‑ Disciplinary action for misconduct‑Mala fides‑‑Acceptance of aupology Right of management‑Mere fact that other person accused of same allegation let off on apology‑Not sufficient to establish mala fides.
‑‑ Disciplinary action for misconduct‑Punishment‑Quantum and nature‑Employer entitled to assess as to what punishment be awarded for misconduct under provisions of law‑Mention in charge‑sheet of ultimate punishment to be awarded‑Not essential Requirement of law only to apprise accused of alleged miscon duct‑Consequence of disciplinary proceedings and establishment of misconduct, held, can certainly include any punishment including dismissal specified in law‑West Pakistan Industrial and Commer cial Employment (Standing Orders) Ordinance (VI of 1968), S. 15 (2).
Pakistan Tobacco Company Ltd. v. Chunna Khan and others 1980 P L C 984 rel.
Syed Hamid Ali for Appellants.
Shaukat Ali A. Nanji.for Respondent.
Date of bearing: 19th May, 1981,
The 2 appellants, Asghar Ali and Fayyaz Taji, who were employed as Operators in the respondent company, were dismissed from service with effect from 31st May, 1974, vide the respondent company's letter dated 30th May, 1974, on the twin charges of refusing to sign the Instructions Book kept in the Engine Room under the specific instruc tions of the Manager, and further refusing to accept the letter of advice, dated 17th April, 1974. The appellants challenged their dismissal orders before the learned Junior Labour Court, which was then function ing. The Junior Labour Court, by its order, dated 7th May, 1975, allowed the grievance petitions of both the appellants and directed re‑instatement in service with full back benefits. The appeal of the response dent company against the said decision was dismissed by the learned Labour Court, vide its order, dated 7th May, 1975. The respondent company challenged the said decision and order by way of a Constitution Petition to the High Court. The petition was heard by a learned single Judge of the High Court, who by his order, dated‑24th March, 1979, remanded the case to the learned Labour Court for decision on merits as the learned Judge was of the view, firstly, that the evidence led by the appellants herein had not been taken into consideration by either of the 2 Labour Courts, and secondly, though the learned Labour Courts had held that there was a proper enquiry against the appellants yet they had proceeded to direct the respondent company to re‑instate the appellants on the basis of the view that they have taken of the provisions of Standing Order 15 (2), (3). On remand, the matter came to be beard by the learned Vth Labour Court, as in the meanwhile the Junior Labour Courts had been abolished and pending proceedings were to be continued before the appropriate Labour Court as provided by Ordinance XXV1 of 1975 The learned Labour Court, by its order, dated 8th July, 1980, had held that the charge of wilful insubordination and disobedience of lawful orders has been fairly established against the appellants in a properly and fairly conducted domestic enquiry. It has repelled the contention of the appellants that the action taken against them was mala fide. On these findings, the learned Labour Court dismissed the grievance petition of the appellants who have now come, up in appeal to this Tribunal.
2. I have heard Mr. Hamid Ali, the learned counsel for the appel lants, and Mr. Shaukat Ali Nanji, who appeared for the respondent com pany. Mr. Hamid Ali assailed the impugned decision of the learned Labour Court on the following grounds :‑
(1) That the charges against the 2 appellants were unfounded or at any rate were not established;
(2) That the enquiry against the appellants was not held for the purposes of taking disciplinary proceedings but merely for ascertainment of facts, as admitted by the respondent company's witness, Syed Arif Raza;
(3) That no proper opportunity was given to the appellants in the domestic enquiry .proceedings to defend themselves ;
(4) That even if the charges levelled against the appellants are held to be established against them, then also their acts would not constitute misconduct entailing dismissal under clause (3) of Standing Order 15;
(5) That the proceedings against the appellants were taken when an application for registration of union of which the 2 appellants' ,fig, were office‑bearers, was pending with the Registrar; Trade Unions, and consequently, the proceedings against the appellants axe invalid ;
(6) That the enquiry proceedings against the appellants are further invalid as they were commenced on 17th April, 1974 as admitted by M4nager Arif Raza, though the charge against him was served on 24th April, 1974 ; and
(7) That in any case, the action taken against the appellants is mala fide and in consequence of their trade union activities.
3. On the other hand, Mr. Shaukat Ali Nanji strongly supported the decision of the learned Labour Court and submitted that the dismissal orders in respect of the two appellants were in accordance with law and were fully justified in view of the established misconduct in 1wilfully disobeying the lawful orders of their superiors.
4. I will proceed to deal with each of the above submissions of Mr. Hamid Ali seriatem keeping in view the observations of the High Court in Constitution Petition No. 458/75. As already indicated, the twin charges against the appellants, were, firstly that they refused to sign the Instructions Book kept in their department under the specific instructions of the Manager, and secondly, that they refused to accept the letters of advice issued to them on 17th April, 1974. In the separate domestic enquiries which were held against the two appellants in respect of the above charges and in which they admittedly participated fully and cross‑examined the witnesses, statements of 3 witnesses, namely, Abdul Aleem, who is stated to be the departmental head of the appellants, and Time‑keepers, Sardar Khan and Ghafoor, were recorded, witness, Abdul Aleem in his statement before the Enquiry Officer, testified that the Manager of the respondent company had issued clear and specific directions to the effect that all instructions by the departmental heads to the operators were to be given in writing in the Instructions Book and the Operators were to acknowledge them by signing them, which the appel lants refused to do. There was no serious cross‑examination of the witness on this issue. The second witness Time‑keeper, Ghafoor has stated that be had received a letter of advice from the administration department, on 18th April, 1974, to be given to Asghar Ali, but the latter refused to accept the letter in question, whereupon he wrote down his comments on the letter and sent it back to the administration department. According to time‑keeper, Sardar Khan, who was examined only in the enquiry against appellant Asghar Ali, he received instructions from the management on 26th April, 1974 to deliver the show‑cause notice, dated 24th April, 1974 to appellant Asghar Ali, and accordingly he attempted to deliver the said show‑cause notice to Asghar Ali, but the latter refused to accept the same saying that he wanted time one or two days to consider accepting the letter.
5. Appellant Asghar Ali, in his statement before the enquiry officer, admitted the fact that instructions were given to him by the departmental head, Mr. Aleem Khan, who had carried out the instructions received by him by the Manager, and further acknowledged the fact that he had refused to sign the instructions book as per Mr. Aleem's orders. Regard ing the second charge, he also admitted that he had refused to accept the advice, dated 17th April, 1974. His explanation for refusing to receive the letter in question was that it was in English, a language not under stood by him, and that there was no body available, whom be could trust, to translate and explain the letter to him.
6, As the record of the enquiry relating to appellant Fayyaz Taji Was not traceable in the record received from the learned Labour Court, although it is clear from the cross‑examination of appellant Fayyaz Taji; a certified copy whereof is included in the record of the learned Labour Court, that the record of the domestic enquiry proceedings against him was produced by Fayyaz Taji before the learned Labour Court, 1 examin ed the Enquiry Officer, Yousuf Jamal Heider, who by then had ceased to be in the employment of the respondent company, for the purpose of bringing on the record, the enquiry proceedings against appellant Fayyaz Taji. The witness produced the said enquiry proceedings, the original whereof was made available to him by the respondent company. Mr. Hamid Ali, the learned counsel for the appellants, sought to argue that the examination of this witness was inconsistent with the directions given by the High Court in the Constitutional Petition, wherein it has been clearly stated that no further evidence in the case is to be recorded as the parties had agreed that the matters can be disposed of on the basis of the existing evidence. It may, however, be pointed out that the existing evidence consisted of the record of the domestic enquiry against the appellant Fayyaz Taji and since that record was not available, and as the High Court had directed that decision is to be given on merits in respect of the domestic enquiry, and further as provided in subsection (5) of section 25‑A, I. R. O., a Labour Court while adjudicating upon a grievance petition is required to go into all the facts of the case, it was considered necessary in order to comply with the directions of the High Court and the requirements of law to bring on record the proceedings of the domestic enquiry against appellant Fayyaz Taji. It may also be pointed out that according to the statement made by Mr. Hamid Ali, he had sought further order from the High Court in regard to the recording of this evidence, but although adequate time was given to him in this behalf, he was unable to bring to my notice any further orders of the High Court on this point.
7. The evidence given by the departmental head, Abdul Aleem Khan, and Time‑keeper, Ghafoor, in the departmental enquiry against the appellant Fayyaz Taji, is substantially similar to the evidence given by them in the departmental enquiry against appellant Asghar Ali. Abdul Aleem has stated that he had recorded in the instructions book the instructions given by him to the operators, as per directions of the management, but appellant Fayyaz Taji had refused to sign the Instructions Book. Time keeper, Ghafoor has testified that on 18th April, 1974, he had attempted to deliver to appellant Fayyaz Taji the letter of advice, issued by the management, but the latter had refused to accept the same for a reason which he did not disclose, whereupon he wrote on the said letter his comments that Fayyaz Taji had refused to accept the advice and had returned the advice to the administration department. In his statement before the Enquiry, appellant Fayyaz Taji, while claiming that he had carried out the job of instructions given to him by Abdul Aleem Khan, admitted he had not signed the Instructions in the Instructions Book. The reason given by him for not signing the said instructions was that he was not willing to accept the responsibility of other members of the department who refused to carry out any instructions, which were for them. As regards the second charge, namely, refusal to accept the letter of advice, dated 17th April, 1974, his statement in this behalf to the enquiry officer was as follows :‑‑
"I did not accept the letter of advice (Exh.) as I felt that it was within my rights to refuse to accept the letter on the grounds that the letter was not lawful and that the management was not fair in issuing this letter, as stated in the 1st para. that is, that this letter was the outcome of my refusing to sign the Instructions Book which I felt was justified on my part due to the reasons mentioned in the first paragraph."
8. It is quite clear from the evidence given before the Enquiry Officer, and in fact it was admitted by both the appellants in their state ments before the Enquiry Officer that they had not only refused to sign the Instructions Book maintained in their department, but had even refused to accept the letter of advice, dated 17th April, 1974, issued by the management, wherein it was stated it had been brought to the notice of the management that the operators of the Engine Room were not comply ing with the instructions of the Manager and signing the Instructions Book placed in the Engine Room, and requiring the operators to put their signatures signifying that instructions bad been read carefully by them as it was most important for them to read the instructions given to them in the Book after taking over the charge of the shift. As such, the twin charges against both the appellants appear to have been firmly established.
9. The second contention of Mr. Hamid Ali that no proper opportunity was given to the appellants in the domestic enquiry proceedings to defend themselves, is found upon the fact that copies of the enquiry proceedings were not furnished to the appellants. No question, however, was put to the Enquiry Officer by either of the appellant suggesting that copies of the enquiry proceedings or the statements of the witnesses were demanded by them. Mr. Hamid Ali, however, sought to rely upon the reply given by the appellants to the second show‑cause notice. In his undated reply to the second show‑cause notice, the appellant Asghar Ali has stated that depositions of the witnesses have not been furnished to him. A mere assertion or even grievance in this letter regarding non‑supply of the depositions of the witnesses, when no specific demand has been made, in this letter or otherwise, for copies, cannot lead to the inference that either of the appellants had ever demanded copies of the statements of witnesses. Furthermore, it is not the requirement of law that copies of statements of witnesses will be supplied or furnished to the workman against whom proceedings for misconduct are being taken. No doubt it is a requirement of natural justice that before any action is taken against a person, specially if action proposed to be taken is a serious one, such as dismissal, he must be afforded a reasonable opportunity to showing cause against such action, but since the witnesses in the domestic enquiry were examined in the presence of the appellants and further not only they were given adequate opportunity of cross‑examining the witnesses, but also the statements of the witnesses were read over, and in the case of statement of witness, Abdul Aleem Khan, who gave evidence in English, it was translated to appellant Asghar Ali in Urdu by appellant Fayyaz Taji, the requirement of natural justice appears to have been fully met in these cases. Mr. Hamid Ali, however, sought to rely on certain authorities in support of his contention that the appellants should have been supplied with copies of the statements and the failure an the part of the management to supply them the said copies make the pro ceedings against the appellants invalid. The first case cited by Mr. Hamid Ali is reported as Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal (1973 S C M R 455). In that case, it was held by their Lordships of the Supreme Court that a workman who is being proceeded against for misconduct, should be furnished with a copy of the enquiry officer's report against him and should also be given an opportunity to show cause against the order of dismissal. In the instant case, it is an admitted position that a copy of the Enquiry Officer's report was furnished to each B of the appellants and that they were afforded adequate opportunity to show cause against their proposed dismissal. The reported case, there fore, is of no assistance to the appellants. The second authority relied upon by Mr. Hamid Ali on this point is the case of Associated Electrical Industries (Pak.) Ltd. Karachi v. Employees Union (P L D 1973 Kar.167). In that case, it was held that a workman who is suspended and dismissed after a domestic enquiry has to seek redress in the Industrial Courts concerned, and for the purpose of representing his case properly there (in the Industrial Courts), he requires the copies of statements of all the witnesses recorded during the domestic enquiry. The requirement of supply of copies of statements of witnesses recorded during a domestic enquiry has been considered in the above case solely in relation the proceedings before the Industrial Courts and not in regard to the proceedings of the domestic enquiry itself or before the employer. I is not disputed that the enquiry proceedings were produced before the learned Junior Labour Court and hence the appellants had full opportunity of examining them during the course of the proceedings before the learned Labour Court. The last authority relied upon by Mr. Hamid Ali is the case of Messrs International Laboratories Employees Union v. Sine Labour Appellate Tribunal (1976 P L C 38), In that case also, it was held, following the decision of the Supreme Court in the case of Punjab Road Transport Corporation, that where the workman was not supplied with copies of enquiry report before ordering his dismissal, the absolute right of workmen to be given an opportunity to explain circumstances appearing against him had not been complied with. This decision also is of no assistance to the appellants as admittedly copies of enquiry reports were furnished to the 2 appellants. I may also refer to the case of Ahmed Investments Ltd. v. Sind Labour Court No. IV (1978 P L C 567), wherein a learned single Judge of the Karachi High Court referred to the earlier decision in the cases of Associated Electrical Industries, and observed as follows
"If a worker asks for copies of statements of the witnesses the management cannot hold back the same and if it is not done, the same would certainly amount to violation of the rule of natural justice."
10. I have had occasion to refer to the above authorities as well a td consider other authorities on the point in the case of Dawood Cotton Mills v. Mahmood Shah, decided on 10th March, 1981 wherein I had pointed out that even in those cases where it has been held that the failure to furnish copies of the statements of witnesses would invalidate the enquiry proceedings, there was timely demand for being furnished such copies. In the instant case, as already pointed out, no specific demand appears co have been made to supply copies, and only a grievance appears to have been made in the reply to the second show‑cause notice that such copies have not been furnished. Furthermore, as has been held by this Tribunal in the case of Mohammad Qasim v. Sandoz (Pak.) Ltd. (1980 P L C 997), where statements of witnesses in the domestic enquiry are recorded in the presence of the workman charged for misconduct, non supply of copies of such statements would not vitiate or invalidate such proceedings as failure to supply such copies in those cases cannot be considered to have deprived the workman of reasonable opportunity of, defending himself against the charge of misconduct.
11. It next falls to be considered whether the charges levelled against the 2 appellants constitute misconduct falling under clause (3) Standing Order 15. As already pointed out, the charges against the appellants were, firstly, that they had refused to sign the Instructions Book and also refused to take delivery of letter of advice, dated 17th April, 1974, issued by the management. The instructions, dated 13th April, 1974, rby head of the department, Abdul Aleem Khan, were recorded in the Instructions Book pursuant to the management's letter, dated 12th April, 1974, and it was in pursuance of the latter that Mr. Abdul Aleem Khan had required the operators of the Engine Room to sign the Instructions Book in acknowledgement of having read those instructions. The orders which the appellants had thus failed to comply with were of their superiors and were furthermore lawful. Moreover, the disobedience was wilful in that even after the letter of advice, dated 17th April, 1974, the appellants not only refused to sign the Instructions Book but even refused to take delivery of the said advice. I t was sought to be contended by Mr. Hamid Ali that the appellants were justified at least in refusing to accept the advice, dated 17th April, 1974, as it was not delivered to them during their duty hours. There is no force in this contention, as firstly, this was not even alleged by the appellants in their statements before the Enquiry Officer, and further, before the Enquiry Officer, appellant Asghar Ali stated that he did not accept the advice because it was in English. While according to the statement of Time keeper Ghafoor, appellant Fayyaz Taji stated that he would not accept the advice for a particular reason which he did not disclose.
12. I am satisfied that the action of the appellants in refusing to sign the Instructions Book and to take delivery of the advice, dated 17th April, 1974, constituted misconduct for the purpose to wilful disobedience of lawful and reasonable orders of a superior and was not merely disregard or simple disobedience of rules or orders.
13. It was next contended by Mr. Hamid Ali that the proceedings against the appellants are invalid as they were taken during the pendency with the Registrar of Trade Unions of an applications for registration of the union of which the appellants are office‑bearers. The protection contained in section 8‑A, I. R. O., is only against transfer, discharge, dis missal or award of other punishment to an office‑bearer of a trade union or a workman during the pendency of an application for registration of the trade union with the Registrar. In the instant case, admittedly, the application for registration of the trade union of which the appellants are office‑bearers was decided on 17th May, 1974, and even the certificate of Registration of the union was issued on the said date. However, the order of dismissal in respect of the appellants were passed on 30th May, 1974, some 13 days later. There is no prohibition against the initiation of pro ceedings for misconduct against a workman or an office‑bearer of a union, during the pendency of the registration of a trade union, but the bar against the dismissal or discharge of a workman during the pendency of such proceedings. In the present case since the orders of dismissal were passed after the registration of the union of which the 2 appellants are said to be office‑bearers, the dismissal orders are pot bit by the bar contained in section 8‑A, I. R. O. There is also no force in the conten tion of Mr. Hamid Ali that the proceedings taken by the management against the appellants are invalid as they were commenced on 17th May, 1974, though the charge‑sheet was served on them on 24th May, 1974. It may be pointed out that clause (4) of Standing Order 15 does not require the service of any charge‑sheet upon a workman who is alleged to have committed misconduct. All that the law requires is that the act of miscon duct alleged against a workman must be brought to his notice, in writing, within one month of the commission of the act or the employer becoming aware of such act if he proposes to dismiss the workman. In the instant case, by the letter of advice, dated 17th April, 1974, the miscon duct of the appellant was brought to their notice, and therefore, the requirement of law was fulfilled, as the said advice was sought to be deli vered to them, though they refused to take delivery of the same. The subsequent charge‑sheet, dated, 24th April, 1974, was a formal commu nication to the appellants of the particulars of their acts of misconduct. An examination of the domestic enquiry proceedings in respect of the 2 appellants establishes that the enquiry proceedings were taken after the said charge‑sheet was issued.
14. I also find no force in the contention of Mr. Hamid Ali that the action taken against the appellants was mala fide. This contention is sought to be grounded on 2 circumstances, firstly, that the management wanted to punish the appellants for their trade union activities and for daring to form the rival Pakistan Fisheries Mazdoor Union, which posed a challenge to the Pakistan Fisheries Employees' Union, which was merely a pocket union of the management, and secondly, that the management meted out discriminatory treatment to the appellants in that while the other 2 operators who similarly had refused to sign the instructions were let off and no action has been taken against them, the appellants were dismissed. As regards the latter allegation, it has been explained by Arif Raza, the Executive of the respondent company that as the other 2 operators had apologized, they were let off with a warning. It was for the management to decide whether in view of the appology tendered by the other 2 operators any further action against them is necessary. Since it chose to accept the apology, no fault can be found with thei
action in letting off the other 2 operators while taking action ,against the 2 appellants. As regards the allegation that action was taken. Against the appellants by reason of their trade union activities and on account of the formation of the rival trade union, it may be pointed out that the evidence on record which is discussed .at some length in this judgment shows that the action was taken against them for disobedience of the lawful orders of their superiors. Merely because the appellants were office‑bearers of a trade union did not entitle them to flout the lawful and reasonable orders of their superiors.
15. It was also contended by Mr. Hamid Ali that the punishment of dismissal awarded to the appellants was harsh and was not commen surate with their guilt. It has, however, been held by their Lordships of the Supreme Court in the case of Pakistan Tobacco Company Ltd. v. Chunna Khan and others,( 1980 P L C ‑M) that, it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions pf the Statute; and if the employer chooses to award dismissal, the First
(1) Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment.
16. It was also sought to be argued by Mr. Hamid Ali that the charge‑sheet, dated, 24th April, 1974, did not give notice to the appellants that it was proposed to award the punishment of dismissal, and that failure to specify the proposed punishment disentitles the management from awarding this punishment. I find no force in this contention. It is not the requirement of law that the charge‑sheet must specify the nature of the punishment which it is proposed to award to the defaulting worker. The punishment which can be awarded for misconduct are specified in clause (2) of Standing Order 15 and the workman is expected to be fully aware of the punishment that may be invoked by the employer in case misconduct is established against him. Furthermore, the charge‑sheet, dated, 24th April, 1974, specifically requires the appellants to show cause why disciplinary proceedings should not be taken against them. The consequence of these disciplinary proceedings and the establishment of misconduct alleged against them can certainly include dismissal.
17. It was finally sought to be argued by Mr. Hamid Ali that no enquiry was held against the appellants for the charge of insubordination. The charges against the appellants were wilful disobedience and non compliance of the lawful and reasonable orders of superiors. As already indicated, these charges were fully established in a domestic enquiry which was fairly and properly conducted and in which full opportunity was given to the appellants to defend themselves.
18. Mr. Hamid Ali also cited a number of authorities, apart from the authorities noticed in the earlier, part of this judgment, but as these authorities are either inapplicable to the circumstances of the present case
or are limited to facts of those cases, which are materially different from the facts of the present cases, I have not considered it necessary to refer to these authorities in this judgment.
19. For the reasons discussed by me above, I am of the view that there is no merit in these 2 appeals. I would accordingly concur in the findings of the learned Labour Court and would dismiss both these appeals.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer