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Constitutional Petition No. D.834 of 1979, decided on 3rd April, 1984.

‑‑‑S. 5 (ix)‑Driver‑In order to make S. 5 (ix) applicable to a driver, it is necessary to show that person was employed exclusively in, connection with collection, despatch, delivery and conveyance of goods‑Driver assigned duty on vehicles which was not normally used for transporting goods, held, not a person employed exclusively in connection with collection, despatch, delivery and conveyance of goods.

‑‑Object of provisions of Statute to deprive person of some benefits- Such provision, held, to be strictly construed and its scope could not be extended beyond what has been provided in Statute.

‑‑S. 15 (3)‑Misconduct‑Act or omission on part of workman, a misconduct if it was wilful, insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior‑Violation or disobedience of every order of a superior, whether constitutes misconduct in terms of S. 15 (3) Question whether an order was reasonable or not depends on facts of each case.

An act or omission on the part of a workman shall be a misconduct if it is wilful insubordination or disobedience, whether alone or in combina tion with others, to any lawful and reasonable order of a superior. It may be highlighted that violation or disobedience of every order of a superior does not constitute misconduct in terms of section 15 (3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 but the order should be lawful and reasonable. The question, whether an order is reasonable or not will depend on the facts of each case. In the instant case the employer has not brought on record, what was the nature of the urgent work, which workman declined to attend during the lunch hours. Whether the urgent work was such, which could not have been postponed till about 45 minutes, the Personnel Manager's order in the instant case cannot be said to be reasonable.

‑‑ Art. 199‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 15 (3)‑Misconduct Question whether employee's refusal to obey order of his superior constituted misconduct or not, held, a question of fact which could not be interfered within exercise of constitutional jurisdiction of High Court.

‑‑ Ss. 37‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15‑Misconduct‑ Question whether employee's refusal to obey order of his superior constituted misconduct or not, held, within competency of Labour Appellate Tribunal to decide.

Afzal Ahmed for Petitioner.

M. Ali Amjad for Respondent.

Date of hearing : 3rd April, 1984.

‑This petition is directed against the order, dated 18th April, 1979 passed by the learned Sind Labour Appellate Tribunal at Karachi in Appeal No. KAR‑22/79. The brief facts leading to the filing of the above petition are that respondent No. 3 was employed with the petitioner at the relevant time as a driver. On 14th April, 1976 respondent No. 3 was deputed to drive a Suzuki Van and was assigned the duty at the T. P. X. Karachi for carrying the samples of the cotton from the T. P. X. to the head office and was attached to the staff, who were connected with the above work. It seems that at about 1‑00 p. m. respondent No. 3 carried two officers, Nazar Ali and Haroon from the T. P. X. Yard to the head office for enabling them to take lunch. It further seems that one Mr. Mughni an official of the petitioner Corporation asked respondent No. 3 to attend some urgent work, which he declined by stating that he was going to take lunch as it was lunch hour, and would attend the work after 2‑00 p. m. It also seems that Mukhtar Ahmed, the personal Manager (Administration) again sent Mr. Mughni to respondent No. 3 asking him to leave the lunch and to attend the urgent work, but respondent No. 3 again declined. Consequently, on 17th April, 1976 respondent No. 3 was served with a charge‑sheet for the above alleged misconduct, which was replied to by respondent No. 3 on 24th April, 1976. After that an inquiry was held on 29th April, 1976. After the conclusion of the above inquiry, a second show‑cause notice, dated 7th May, 1976 was issued to respondent No. 3, it was also replied to by the above respondent on 11th May, 1976. However, on 18th May, 1976 respondent No. 3 was dismissed from the service for misconduct. Respondent No. 3 served a grievance notice, on 22nd May, 1976. After receiving reply, dated 17th June, 1976, respondent No. 3 filed an application under section 25‑A of the I. R. O. before the Vth Labour Court at Karachi. The above application was resisted by the petitioner. The learned Labour Court after recording the evidence and after hearing the parties by its order, dated 16th December, 1978 dismissed the above respondent No. 3's above application. Respondent No. 3 being aggrieved by the above order filed aforesaid appeal, which was allowed by the impugned order, dated 18th April, 1979.

2. (a) In support of the above petition Mr. Afzal Ahmed, learned counsel for the petitioner has urged as follows :‑‑

(i) That since respondent No. 3 was connected with the conveyance of goods, he was excluded from the perview of the West Pakistan Shops and Establishment Ordinance, 1969 (hereinafter referred to as the Ordinance) by virtue of section 6 (ix) of the Ordinance and, therefore, there were no fixed lunch hours for respondent No. 3.

(ii) That the domestic inquiry was conducted and it was found that respondent No. 3 had committed misconduct, and, therefore, the petitioner's order of dismissal was legal.

(b) On the other hand Mr. Ali Amjad, learned counsel for respondent No. 3 has urged as follows :‑

(i) That respondent No. 3 was not connected with the conveyance of goods, and therefore, the above section 5 (ix) of the Ordinance, was not attracted to.

(ii) That under para. 15 (3) (a) of West Pakistan (Standing Orders) Ordinance, respondent No. 3 was obliged to obey lawful and reasonable order of the employer.

(iii) That the learned Sind Labour Appellate Tribunal was competent to give a finding on the question of fact, whether misconduct was committed or not, and therefore, this finding cannot be interferred with by this Court in exercise of constitutional jurisdiction unless it is found to be perverse or contrary to this Court.

3. Adverting to the question, whether section 5 (ix) of the Ordinance is attracted to in the instant case, it may be advantageous to reproduce the same, which reads as follows :‑

"Section 5. Ordinance not applicable to certain establishments and

persons.‑(1)‑ -----------------------------------

(ix) any person employed as manager, travelling agent, canvasser, messenger, watchman, care taker or conservancy staff or any person employed exclusively in connection with the collection, despatch, delivery, and conveyance of, or custom formalities on goods ;"

It may be noticed that the Ordinance is not applicable to any person employed as manager, travelling agent, canvasser, messenger, watchman, care taker or conservancy staff or any person employed exclusively in connection with the collection, despatch, delivery and conveyance of or custom formalities, on goods.

In order, to make the above provision applicable to a driver, it is necessary in our view to show that he is employed exclusively in connection' with the collection, despatch, delivery and conveyance of goods. In the instant case, it has been urged by Mr. Afzal Ahmed, learned counsel for the, petitioner that since admittedly the duty of respondent No. 3 was to carry the samples of cotton from the T. P. X. yard to head office. It constitutes conveyance of goods. We are not inclined to agree with the above contention as admittedly respondent No. 3 was assigned duty on a Suzuki Van, which is not normally used for transporting the goods. Even if we were to hold that respondent No. 3's exclusive duty was to carry samples from the T. P. X. yard to the head office, it will not make him a person employed exclusively in connection with the collection, despatch and delivery and conveyance of goods.

4. We may observe that the above‑quoted clause (ix) of section 5 intends to exclude the application of the Ordinance to the persons mentioned therein. It is an admittedly position that the Ordinance is a beneficial legislation. The object of section 5 (ix) is evidently to deprive the persons mentioned therein the benefit of the Ordinance. It is a well‑settled principle of interpretation of statutes, that such a provision is to be strictly construed and its scope cannot be extended beyond, what has been provided.

5. Reverting to para. 15 (3) (a; of the West Pakistan (Standing Orders) Ordinance, it may be pertinent to quote the above provision, which reads as follows :‑

Section 15 ---------------------------------------------------------------

(3) (a) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior."

It may be noticed that an act or omission on the part of a workman shall be a misconduct if it is wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior. It may be highlighted that violation or disobedience of every order of a superior does not constitute misconduct in terms of the above quoted provision of law, but the order should be lawful and reasonable. The question, whether an order is reasonable or not will depend on the facts of each case. In the instant case the petitioner has not brought on record, what was the nature of the urgent work, which respondent No. 3 declined to attend during the lunch hours. Whether the urgent work was such, which could not have been postponed till 2‑00 p. m. i. e. about 45 minutes, the Personnel Manager's order in the instant case cannot be said to be reasonable.

Even otherwise the question, whether respondent No. 3's refusal constitutes misconduct or not was a question of fact within the competency of the Sind Labour Appellate Tribunal, and therefore, any finding of fact recorded by the Sind Labour Appellate Tribunal cannot be interfered with in exercise of constitutional writ jurisdiction unless it is shown to be perverse or contrary to record.

6. We, therefore, do not find any merit in the above petition, it is therefore, dismissed with no order as to costs.

M. Z. Y

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