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Appeal No. KAR‑354 of 1982, heard on 1st September, 1982.

‑ Dismissal for misconduct ‑ Second show‑cause notice after receipt of findings of enquiry‑Not a requirement of law‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 15 (4).

Dawood Cotton Mills Limited v. Guftar Shah P L D 1981 S C 225 rel.

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

‑‑ S. O. 15 (3) & (4) read with Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑Misconduct ‑Punishment Quantum Prerogative of employer‑Enquiry Officer though not debarred from submitting recommendations regarding type of penalty employer neither bound to follow same nor to supply copy of such recom mendations to accused‑Such recommendations can be treated as secret by employer‑Abusing and cursing children of superior by workman when questioned by superior about unauthorisedly leaving place of duty‑Act subversive of discipline‑Dismissal order chal lenged on ground that it was a harsh penalty ‑Contention repelled holding that assessment of punishment was right of employer and Labour Court could not substitute same with a lenient punishment.

Pakistan Tobacco Co. Ltd. v. Channan Khan, Civil Appeal No. K‑136 of 1976 rel.

(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

‑‑ S. O. 15 (2) read with S. O. 12 (5)‑Termination of service for misconduct‑Amounts to dismissal‑Contention that "termination of service" was not one of the penalties prescribed hence could not be imposed‑‑Repelled.

Masood Mirza for Appellants.

S. M. Kohistani for Respondents.

Date of hearing : 1st September, 1982.

DECISION

The respondent who was employed as a Driver in the Airport Development Agency Ltd. the appellants herein, was served with a charge sheet, dated 12th August, 1981, alleging the following acts of misconduct against him :‑

"Today when you reached office at about 0810 Hours, the Trans port Supervisor asked you to explain the following points

(i) You are required to attend office at 0730 firs. daily, but you are not doing so.

(ii) You are paid special allowance of Rs. 100 p.m. on account of overtime working but on any occasion when you are asked to attend office after office hours, you claim extra charges for conveyance.

(iii) You claimed cash payment on account of 5 (five) gallons Petrol purchased by cash on 10th August, 1981 although according to your own statement sufficient petrol was available in the tank while starting for Journey.

(2) Instead of replying to the queries you started shouting and cursing the Transport Supervisor. At this stage the Dy. Director (Admn.) personally asked you to keep quiet and behave properly. But you jumped over the Transport Supervisor and manhandled him and through the force of your attack the lip of Transport Supervisor was injured."

2. The respondent submitted the following explanation to the above charges :‑

"Kindly refer to your letter No. DAJP‑1467/7717739, dated the 12th August, 1981 on the above subject, the allegations contained in the letter from serial 1 to 3 are not true. Secondly who man handled first it can easily be proved in an enquiry. It is, therefore, requested that an impartial enquiry may please be conducted."

3. The appellants were not satisfied with the above explanation of the re6pondent and., accordingly, a Departmental Enquiry was ordered against him and Mr. F. U. Khan, Assistant Director, was appointed as the Enquiry Officer. In the domestic enquiry the statements of Habib Jaffer, Transport Supervisor, Abdul Mateen Khan, Junior Assistant, Mohammad Hussain Driver and Ghulam Hussain cleaner, were recorded. The Enquiry Officer also recorded the statement of the respondent. He did not lead any defence. On the basis of their statements, the Enquiry Officer submitted his report, dated 10th September, 1981, to the effect that charges Nos. 1 to 3, as given in the charge‑sheet, bad not been estab lished against the respondent but the charge of abusing the children of Habib Jaffer, Transport Supervisor, has been established against the respondent not only on the basis of evidence of the witnesses but even on the admission of the respondent himself. The respondent was, there after, served with a second show‑cause notice to which a copy of the detailed report of the Enquiry Officer was appended. In reply the respon dent denied that he was guilty of the charges levelled against him. The Managing Director of the appellants, however considered the explanation of the respondent unsatisfactory and by order dated 15th November, 1981, terminated the services of the respondent with immediate effect.

4. The respondent challenged the orders of termination of his service through a grievance petition filed before the learned Fourth Labour Court. The learned Labour Court, by its decision, given on 8th August, 1982, allowed the grievance petition of the respondent and has directed the re‑instatement in service of the respondent. The learned Labour Court has based its decision on the following grounds :‑

(a) The second show‑cause notice given to the respondent did not give a clear picture of the report of the Enquiry Officer.

(b) The management, while furnishing a copy of the Enquiry Officer's report to the respondent, dishonestly excluded the concluding paragraph of the report wherein the Enquiry Officer had recommended the award of lenient punishment to the respondent.

(c) The acts of the respondent do not constitute misconduct.

(d) The punishment of termination of services awarded to the respondent is harsh and was not justified.

5. Aggrieved by the above decision, the appellants have come up in appeal before this Tribunal.

6. I have heard Mr. Masood Mirza, the learned counsel for the appellant, and Mr. S. M. Kohistani, who appeared for the respondent workman.

7. In regard to the first ground which weighed with the learned Labour Court in allowing the grievance petition of the respondent, it may be pointed out that the admitted position is that the second show‑cause notice served upon the respondent was accompanied by the detailed report of the Enquiry Officer in which he has carefully discussed the evidence of the witnesses and has given his finding on each of the charges alleged against the respondent, holding that only the charge of misbeha viour with the Transport Supervisor and cursing and abusing his children was established against him. The respondent, thus, had due notice of what had been found against him by the Enquiry Officer. Moreover, as held by the Supreme Court in the case of Dawood Cotton Mills Limited v. Gujtar Shah (PLD1981 SC225) the giving of a second show‑cause notice is not neces sary or a requirement of the law.

8. Coming to the second ground which weighed with the learned Labour Court in allowing the grievance petition of the respondent, it may be pointed out that a copy of the entire report of the Enquiry Officer was furnished to the respondent alongwith the second show‑cause notice except the following recommendation combined in the report :‑

"in the light of the above findings, it is suggested that Mr. Abdul Rashid, Driver may please be awarded minor punishment on account of misbehaving his superior and abusing his superior's children."

It may be pointed out that the law merely requires the employer to hold independent enquiries against a workman who is charged with mis conduct. The function of the Enquiry Officer, thus, appears to be to: hold the enquiry and to submit his findings in respect of the charges to the employer. This, however, does not mean that the Enquiry Officer is g prohibited from submitting his recommendation to the employer as to the type of the punishment which should be awarded to the delinquent workmen, but since the award of punishment is the prerogative of the employer, the employer, is not bound to furnish to the workman a copy of the recommendation of the Enquiry Officer in this regard and can treat such a recommendation as secret.

9. Coming next to the third ground which weighed with the learned Labour Court, it may be pointed out that the finding of the Enquiry Officer was that it had been established against the respondent workman that he had abused and cursed the children of Habib Jaffer, Transport Supervisor, when the latter asked for his explanation for leaving office early 11th August, 1981 . This finding of the Enquiry Officer is based not only on the evidence of Habib Jaffer, Abdul Mateen Khan (Junior Assistant), Driver Mohammad Hussain and Cleaner Ghulam Hussain but also on the admission of the respondent himself, before the Enquiry Officer. In his statement recorded by the Enquiry Officer the respondent has clearly admitted that when Supervisor Habib Jaffer told him that he had left office on 11th August, 1981 without his permission he uttered some unhappy words to Habib Jaffer about his children. It may further be pointed out that even in his grievance notice, dated 23rd November, 1981, the respondent has indirectly admitted his fault and requested for forgiveness. The act of the respondent in abusing and cursing the children of his superior in the office, when he was questioned about his leaving early on the previous day clearly amounts to an act subversive of discipline falling under item (h) of clause (3) of Standing Order 15.

10. As regards the last ground namely that the punishment awarded to the respondent in circumstances of the case is harsh the short answer is that it is for the employer to assess as to what punishment should be award ed for misconduct under the provisions of the statute ; and if the employer chooses to award ,dismissal or any other punishment, the Labour Court cannot sit in judgment over it and substitute it with a lenient punishment, as observed by their Lordships of the Supreme Court in Civil Appeal No. K‑136 of 1976, Pakistan Tobacco Co. Ltd. v. Channan Khan, decided on 26th January, 1980.

11. It was urged by Mr. S. M. Kohistani, the learned counsel for the respondent, that the punishment awarded to the respondent, i.e. termi nation of service, cannot be awarded under Standing Order 15 as it is not one of the punishments prescribe) under clause (2) of Standing Order 15. 1t may, however, be pointed out that it has been held that discharge or of termination of services for misconduct amounts to dismissal. Furthermore clause (5) of Standing Order 12 provides that the service of a workman can be terminated for an act of misconduct after following the procedure prescribed in Standing Order 15 which procedure had been followed in the instant case.

12 For the reasons discussed by me above, I would set aside the impugned decision of the learned Labour Court and would allow the appeal. Before parting with the judgment I like to record that Mr. Masood Mirza, the learned counsel for the appellants submitted that as the appellant had ordered the termination of the service of the respondent he would be paid his dues, including notice pay, as stated in the termi nation letter itself,

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