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Appeal No. KAR-637 of 1983, decided on 16th January, 1986.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969)

---S.O. 15 (3)--Industrial Relations Ordinance (XXIII of 1969), Ss.25-A, 38 (3)--Misconduct--Dismissal for--Reinstatement--Beck benefits--- Workman dismissed on charge of supression of fact of conviction by Summary Military Court on charges of breach of peace prior to joining service--Questionaire Tilled at time of joining service requiring no such information--No misconduct, held, was committed by employee and dismissal from service relating thereto was unwarranted---Dismissal order was set aside by Appellate Tribunal awarding re-instatement with 50% back benefits.

1980 P L C 969 rel.

M.L. Shahani for Appellant.

Kamal Mansoor Alam for Respondent.

Date of hearing: 29th August, 1985.

This appeal is purported to be against the order of Sind Labour Court No.IV at Karachi, dated 5-11-1985, who dismissed the grievance petition of the appellant filed by him under section 25-A, I.R.O. 1969.

2. The facts are that the appellant was a permanent workman of the respondents since 19-7-1981, and was working as Technical Attendant in Fabrication Shop (KPB). During the period of employment, there was no complaint against the appellant and his service record was unblemished. On 20-1-1982, a charge-sheet was served on him wherein he was required that he did not disclose the fact of his conviction in 1979 by a Summary Military Court under section 147/342, P.P.C., and this amounted, according to the establishment, to misbehaviour or misconduct. Board of enquiry was constituted and appointed Deputy Chief Engineer as the Enquiry Officer. On 19-9-1982, the appellant was dismissed from service. He filed the grievance petition which was not allowed by the Labour Court.

3. The respondents denied the allegations of the appellant and said that he did not mention about his previous conviction in the pro forma of Questionaire and that the supressed the important fact and, therefore, is liable to be punished under Standing Order 15 (3) etc., of the West Pakistan Industrial and .Commercial :Employment (Standing Orders) Ordinance, 1968.

4. I have heard Mr. M.L. Shahani and Mr. Kamal Mansoor Alam and have gone through the enquiry proceedings. I have perused the biodata in the nature of Questionaire. There is no column in the Questionaire regarding his previous conviction. His previous employments are from 1974 to 1975 Cashier in Habib Bank, from 1976 to 1977. Fabricator with Contractor of Arab Fertilizer; and from 1978 to 1981. he was with a Contractor of PASMIC. But, in these details no column relates to previous convictions or to previous antecedents. In fact he has admitted in his evidence that he was convicted by a Summary Military Court in 1979 for an offence under sections 147 and 342, P.P.C. The contention of the establishment is that he wilfully supressed this fact from the establishment. Nowhere in the Questionaire or in Biodata any column exists of his previous convictions and as such the appellant has not suppressed the required information. Besides in 1978 he was employed with the Contractor of Pakistan Steel and Pakistan Steel has nothing to do with it. The Standing Order 15 (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, enumerates the offences which are as under:-

"15-Punishments:-

(3) The following acts and omissions shall be treated as misconduct:-

(a) wilful insubordination or disobedience, whether alone or in combination 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 (1);

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

(1) go-slow.

5. I have seen that he has not committed any offence within the purview of Standing Order 15 also. There is, however, one judgment of this Tribunal headed by Mr. Justice (Rtd.) 2. A. Channa reported in 1980 P L C 969. The relevant portion of the same is as under:-

"Standing Order 15, as contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, specifies in detail the acts which are considered to be misconduct for the purpose of the said Order. In my humble view, clause (3) of the said Order is exhaustive of the acts which amount to misconduct for the purposes of the said Order, and any act not falling within its purview 'would not be deemed to be misconduct for the purposes of the said Order and consequently would not entail punishment of dismissal. As the act for which the respondents were convicted and sentenced by the Martial Law Authorities does not appear to fall within the ambit of misconduct as specified in clause (3) of Standing Order 15, the punishment of dismissal could not be awarded to the respondents under the Standing Orders."

6. I would like to summarise the facts and arguments in this case. The Questionaire does not contain any column for previous convictions therefore, it cannot be said that the 'appellant suppressed his previous conviction. In fact in evidence he has admitted it. It shows his truthfulness. No fraud is perpetrated. In fact, there was no fraud. The facts as given in the evidence and in the enquiry report mention that he was employed for the years 1978 to 1981 with the Contractor of PASMIC and as such there is no obligation to mention his previous conviction. Previous conviction does not relate to his moral terpitude but it is related to breach of peace. The information given to the authorities of the establishment is that one of the Engineer but it is not proved from the independent source i.e. the Martial Law Authorities. However, the appellant has himself admitted. This admission does not concern to his behaviour under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore, his dismissal was unwarranted.

7. In the result, I set aside the impugned order of the Labour Court No.IV Karachi and order the re-instatement of the appellant forthwith. As regards the back benefits, he be paid only 50% (fifty percent) of the back benefits.

A. E. Orders accordingly.

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