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Appeal No. RI‑38 of 1985, decided on 30th September, 1985.

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

‑‑‑S. 2(c) & S.O. 15(4)‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑Dismissal for misconduct‑‑Competence‑‑Employer only competent to serve charge‑sheet,, appoint Enquiry Officer and pass dismissal order‑‑Officer of factory whose name not informed to Inspector of Factories under S.9(1)(c) of Factories Act, 1934 as Manager cannot act as employer‑‑Objection that impugned dismissal order was invalid as passed by person who was not 'employer' raised in grievance petition‑ Plea that such objection not raised in reply to first and second show cause notice and grievance notice could not be raised for first time in grievance petition and grievance notice given to some officer who was claimed to be not 'employer' was thus, also invalid‑‑Plea rejected‑‑Held: (i) All objections are to be taken in pleadings and grievance petition its a pleading but grievance notice is not a pleading, (ii) failure to raise such objection in grievance notice did not debar accused /petitioner from raising same in grievance petition, (iii) it was not the duty of accused to raise such objections in reply to show‑cause notice and to put management on guard to pass correct, legal and valid order and rather accused had to take benefit of illegalities and irregularities to be committed by management, and (iv) grievance notice was to be given to officer who had passed order irrespective of fact whether or not accused admitted him to be 'employer'.

1979 P L C 121 and 1979 P L C 196 distinguished.

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

‑‑‑Ss. 15(2) & (3.)‑‑Dismissal for misconduct‑‑Refusal to obey orders and disorderly behaviour‑‑Sweeper allegedly asked to sweep some place at close of working hours but he stating that he would do same next morning‑‑Plea reasonable‑‑Refusing to work at closing hours on plea that working hours had ended, in circumstances, held, an apology and not such a refusal that constitute misconduct‑‑Accused not allowed to sweep said place next morning and evidence indicative that officer alleged to have been abused by accused remarked that someone else would be appointed in place of accused and circumstances believable that such remarks may have fruited accused in uttering words that 'he would break legs of the one who dared to clean the place'‑‑Only small portion of alleged misconduct thus proved‑‑Punishment of dismissal from service, in circumstances, held, not sustainable because if employer had found that only such small part of allegation had substance possibility of prescribing some other kind of punishment short of dismissal could not be excluded.

1981 P L C 984 rel.

Sadiq Muhammad Warraich for Appellant.

Muhammad Afzal Siddiqi for Respondent.'

Date of hearing: 21st September, 1985.

The decision, dated 26‑12‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi has been challenged, whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

a 2. The allegations against the appellant for which he was after being charge‑sheeted and holding inquiry against him, dismissed were that when Mr. Wasim Aziz asked the appellant to clean the floor of B‑O1 at 1630 hours the appellant refused saying that he was not subordinate to him and told him that he would sweep the place on the following day and that when Mr. Wasim, Assistant Pharmacist repeatedly asked the appellant to sweep the floor, the latter became rash and used filthy language. When on the following day the appellant went there to clean the place, he not only refused but said that he would break the legs of anyone who dared to sweep B‑Ol and used abusive and filthy language in favour of Mr. Wasim.

3. It has been argued by the learned counsel for the appellant that the charge‑sheet was given, Enquiry Officer was appointed and dismissal order was passed not by the employer. The Administrative Service Manager who did so, is not covered by the definition of employer given in section 2(c) of Standing Orders Ordinance, 1968. According to the definition in the case of, a factory the employer is that as mentioned in section 9(1)(c) of the Factories Act. According to the provision of the said Act, the occupier of the factory has to inform the Inspector the name of the person who has to act as Manager of the factory for purposes of the Factories Act. It has been argued that the respondent did not prove that the Inspector of Factories was informed about the name of the person who gave the charge‑sheet, appointed the Inquiry officer and passed the dismissal order. The reply of the learned counsel for the respondent is that in para. 3 of the grievance petition only this much is mentioned that the abovementioned acts were not done by the employer but it has not been said that the said officer is not an employer as the provision of section 9(1)(c) of the Factories Act were not complied with. The argument advanced by the learned counsel in reply is not convincing. The objection was quite clear to put the respondent on his guard. The respondent is expected to know that the provision of giving charge‑sheet and appointment of the inquiry and passing of a valid dismissal order are contained in Standing Order 15(4) of the Standing Orders Ordinance, 1968. If the definition given in section 2(c) had been considered, the respondent would have come to know that it was to be proved if the name of the person who issued charge‑sheet, appointed the Inquiry Officer and passed the dismissal order had been sent to the Inspector of Factories as required by section 9(1)(c) and if the provisions of the said law had been complied with, copy of the information together with the postal or other receipt would have been produced. If the respondent was unaware of all this, he should have consulted the legal adviser or some lawyer. The objection taken in the grievance petition was sufficiently clear and if the respondent failed to realise the point, and did not produce relevant evidence, it was not the fault of the appellant. This argument of the learned counsel for the respondent too is without force that since such an objection was not taken in answer to the first and second show‑cause notices and in the grievance notice it was afterthought and could not be raised for the first time in the grievance petition. So far as the replies to the first and second show‑cause notices are concerned, it was not the duty of the appellant to inform that the charge‑sheet, order of appointment of the Inquiry Officer were without jurisdiction. It was not the duty of the appellant to put the respondent on his guard to pass correct, legal and valid order of dismissal. Rather he had to take benefit of the illegalities and irregularities to be committed by the respondent. If such an objection had been taken in the grievance notice, it would have been in the fitness of things but failure to do so did not debar the appellant from raising such an objection in the grievance petition. All the objections are to be taken in the pleadings. The grievance petition is a pleading but grievance notice is not so. Since in the grievance petition such an objection was taken, it was the duty of the respondent to show that the Administrative Services Manager was covered by the definition of employer. The rulings cited by the learned counsel for the respondent are not helpful to the respondent. In both the rulings i.e. 1979 P L C 121 and 1979 P L C 196 the objections were taken at the appellate stage for the first time. It was held that they should have been taken in the pleadings. Since the respondent failed to prove that the Administrative Services Manager was the employer and competent to issue charge‑sheet, appoint the Inquiry Officer after considering the reply to the charge‑sheet and to pass the dismissal order, the whole proceedings fell to the ground and the dismissal order was of no legal effect. In these circumstances, it has been argued that if the Administrative Services Manager was not the employer then grievance notice given to him was invalid as in section 25‑A the words used are 'his employer'. Learned counsel argues that these words means the real and competent employer. The argument in not acceptable. The words 'his employer' do not connote and officer different from the one who passed the order of punishment. Grievance notice is to be given to the officer who actually passed the order irrespective of the fact whether the worker admits him to be the employer or not and competent to pass dismissal order. The worker cannot be sure if his objection that the officer who gave the charge‑sheet and did other acts was not covered by the definition of 'employer' would be accepted by the Court. So even if the authority of the officer who took action is challenged yet grievance notice is to be given to him because it was he who claimed rightly or wrongly to be the employer. The objection, therefore, is overruled.

4. So far as the allegation of disobeying the order of the officer and abusing him are concerned, they appear to be un-plausible in the circumstances of the case. The first part of the allegation is that on 1‑6‑1983 the appellant went to B‑O1 building for cleaning it under the direction of his incharge Naik Inayat Masih, he just went around the place but did not do the job, that when at 4‑30 p.m. the Assistant Pharmacist called him to clean the place, he refused saying the he was not directly under him and that he would clean the place on the next day. But evidence is different. The complainant Assistant Pharmacist said that at about 2 p.m. the appellant had come and had lifted the rubbish container and went away. So this is wrong that the appellant did not do the job at 2 p.m. 4‑30 was closing time as admitted by Miss Samina Naz. She said in cross‑examination that it was closing time and workers had gone and she and her co‑lady worker were proceeding to home. The defence version is that as it was closing time the appellant had said to the complainant that he would clean the place in the morning. This was a reasonable plea and reply. Refusing to work at 4‑30 on the plea that working hours had come to an end was an apology and not such a refusal that constitutes misconduct. The allegation is that the appellant had abused the complainant and had said that he was not under him. This is unbelievable that a sweeper would without any provocation abuse an officer. Further defence plea is that the complainant Mr. Wasim had called the appellant 'Choora' saying that he had not abandoned the un-submissiveness of Chooras. Of course if the evidence of Mr. Wasim and other prosecution witnesses is considered in the light of the abovementioned defence pleas, then it would be believable that the appellant may have fell out with Mr. Wasim and may have said that he was not subordinate to him and even may have abused him. Every human being has some grace and nobody can tolerate disgrace. If the evidence of the prosecution is believed then it will go alongwith the defence version, otherwise it becomes unplausible and unbelievable. The defence witnesses have supported the plausible defence version.

5. The second part of the allegation too is not plausible and unbelievable. The allegation is that when on the following day the appellant went to B‑O1 building he refused to clean it. Firstly if the appellant did not want to clean the place, he would not have gone there. Secondly the evidence of Mr. Wasim is against the allegation. He said that he disallowed the appellant to clean the place on the following day saying that first he would inform the higher authorities about the incident that had taken place on the previous day. So it does not stand proved that on 2‑6‑1983 the appellant refused to clean the place. On the point of misconduct the learned counsel for the respondent has cited number of authorities such as 1984 P L C 453, 695, 935, 1429, 1982 P L C 552, 1982 P L C 798 but every case is to be decided on its own merits. Rulings are helpful in cases in which the allegation of misconduct are similar. The points involved in the rulings are not identical so they are not helpful. The allegation that the appellant had said that he would break the legs of anyone who dared to clean the place, however, is believable. If Mr. Wasim did not want to get the place cleaned by the appellant, the latter may have informed his incharge but was not justified in saying to Mr. Wasim that he would break the legs of the one who dared to clean the place. This is in evidence that Mr. Wasim had remarked that some co‑worker of the appellant would clean the place. This is believable that this may have fruited the appellant because the remarks meant that someone else will be appointed in place of the appellant. The latter has denied the allegation but I there appears to be no substance in his refusal But at the same time since only a small portion of the allegation stands proved, the punishment of dismissal is not sustainable. If the employer had found that only this part of the allegation had substance, the possibility cannot be excluded that he may have prescribed some other kind of punishment short of dismissal 1981 P L C 984 is attracted to the case.

6. At the same time the appellant is not entitled to back benefits. Firstly, he did not say that after dismissal he remained jobless and secondly a great deal of technicalities are involved in the case, benefit of which has been given to the appellant.

7. As a result, the appeal is accepted acid setting aside the impugned decision of the learned lower Court, the appellant is directed to be re‑instated in service without back benefits

1. E.

Appeal accepted.

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