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Application No. 70 of 1983, decided on 28th May, 1984.
‑‑‑Domestic enquiry‑‑Enquiry report‑‑Supplying copy to accused before passing penalty order‑‑Requirement of principles of natural justice.
1984 P L C 378; 1973 S C M R 455 rel.
‑‑‑S. 25‑A‑‑Grievance notice and petition‑‑Limitation‑‑Rules of establishment providing departmental remedy of appeal‑‑Time spent in appeal --Excludable.
N L R 1983 T D 284; 1983 P L C 725; 1983 P L C 721; 1983 P L C 449 and 1983 P L C 468 rel.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑
‑‑‑S. 15(4)‑‑Charge‑sheet‑‑To be served within one month of alleged misconduct‑‑Allegation of absence without leave‑‑Limitation to start from last date of absence.
1983 P L C 449 rel.
‑‑‑S. 25‑A (5)‑‑Scope‑‑Labour Court can go into facts and pass order which is Just and proper to meet ends of justice‑‑Dismissal for misconduct of habitual absence‑‑Charge established in proper enquiry‑‑Neither copy of enquiry report supplied nor personal hearing given by employer‑ Proceedings from such stage, held, defective‑‑Impugned dismissal order set aside awarding temporary re‑instatement to petitioner reverting him to original position till proceedings finalised properly‑‑Back benefits accruing before institution of petition minus absence period allowed.
1983 P L C 725; 1983 P L C 721 and 1983 P L C 725 rel. Ashraf Hussain Rizvi for Applicant.
Kamal Mansur Alam for Respondents.
This is an application under section 25‑A, of the Industrial Relations Ordinance. 1969, files by Mr. Syed Ala, against the Pakistan Steel Mills Corporation, assailing the dismissal order, passed by the respondent, as illegal and prayed for re‑instatement with back benefits.
2. Applicant claims to be permanent workman, in the respondent establishment as appointed on 4‑4‑1977. He continued to work in different capacities and finally as Senior Assistant when his services were dispensed with, by the order, dated 5th December, 1982 or 7th December, 1982.
3. On 12‑5‑1982, show‑cause notice was issued to the applicant Mr. Ala, that, there was report against him, that, his attendance record was not pleasant; he remained habitually absent, and apply every time for regularization of absence, through post facto sanction of leave. It was further reported that he exhausted so much leave, that, by April, 1982, he was granted 9 days leave without pay.
4. Finally it has been shown that his leave applications amounts to habitual absence. With out leave, which is misconduct, under the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
5. On 12‑7‑1982, disciplinary action on that show‑cause notice was dropped and another show‑cause notice was issued on 7‑11‑1982, and served on 14‑11‑1982, that he has been habitual absentee, from the duty, without proper permission. Reference is made to the warning given in July, 1982.
6. After receiving the show‑cause notice, he contacted S. E. (Electrical) and explained the illness of his mother, that, he was suffering from asthma, and her treatment of medical nature, was the pressing need and, therefore, he had to remain absent from duty and could not obtain permission. He further explained that for 3 days, from 31‑10‑1982 to 2‑11‑1982, his absence without prior permission was on account of the critical condition of new born child in the family, which was expected to undergo operation of spinal cord. The officers were satisfied with his explanation and assured the applicant, that the matter has been forwarded and notice has been issued because he did not obtain the prior permission. Applicant submitted the reply and the S.E. (Electrical) put the note and on 18‑11‑1982, enquiry was instituted. Applicant participated in the enquiry; he was neither furnished the report, nor the proceedings of the enquiry, which caused serious prejudice.
7. In the end, the applicant claims, that the entire enquiry proceedings were conducted mala fide, no approval was obtained of the employer, nor the concerned person, who recommended the charge‑sheet or passed the order of dismissal, was notified manager under the Factory Act.
8. The applicant has also taken other grounds, that the case of Hassan Azeem Siddiqui, was also of the unauthorised absence of 165 days, and it was regularised, but in this case, there is discrimination. Secondly, show‑cause notice, dated 7‑11‑1982, on the basis of which, dismissal order is passed, shows no specific date, and, therefore, he is prejudiced.
9. Respondent Steel Mills has filed reply, and supported the enquiry proceedings, and state, that the applicant did not request for the copies of the enquiry report and proceedings, and, therefore, he was rightly proceeded and enquiry was impartial and just. Finally they have taken the legal ground, that application is barred by time.
10. Mr. Ashraf Husain Rizvi, who appears for the petitioner, in this matter, has raised number of contentions, both of legal and factual nature, among which, the first contention is that, the approval of the employer is not obtained at the time of dismissal, which is the basic requirement of Standing Orders Ordinance. Secondly, the petitioner, who was the accused of misconduct, of remaining absent from duty, without permission, was not provided with the copy of the enquiry report and given the opportunity of personal hearing, which has caused prejudice in the mind of the petitioner. And, thirdly, the show‑cause notice of misconduct is not within one month of the misconduct alleged, and, finally, the petition, which is claimed to be time‑barred, is within time limitation after computing the time, spent in the appeal, filed before the Departmental Head, by the concerned petitioner.
11. As the legal contentions are raised, first I deal with, whether those contraventions have occurred, which has caused prejudice to the petitioner, in the domestic enquiry and at the later stage, and, whether the petition is time‑barred, not within the time, as prescribed under Section 25‑A, of the I.R.O., 1969.
12. The enquiry of misconduct is alleged, under S.O. 15 of the Standing Orders Ordinance, where clause (e) deals with habitual absence without leave, which is called as an act or omission, and rule 4 provides, that, no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct, within one month of the date of misconduct, and is given the opportunity to explain the circumstances, and the approval of the employer shall be required in every case of dismissal, and, finally, there is emphasis, that, there should be independent enquiry.
13. Further, it is explained in the matter of dismissal procedure, that, approval of the employer is taken in every case of dismissal and employer includes, the manager, as per section 2(c).
14. Mr. Ashraf Rizvi's contention, has further been recorded here, where he has emphasised, that, person, who has dismissed the petitioner, is Mohammad Shafi, Head of the Operational Complex, but the dismissal is to be approved by the employer, who is, the General Manager, registered under the Factory Act, by notification and the General Manager, who possesses the delegation of powers, cannot again delegate powers to another delegatee.
15. Respondent has produced also the delegation of powers, which is on the record of this file, and, according to the respondent's contention, Mr. Mohammad Shafi was competent to appoint, remove and dismiss the employees. Mr. Fayyaz Ahmad, who is the Assistant Manager, in the General Administration, has produced the delegation of powers, dated 23rd July, 1981, where the delegation of powers have been given by the Board of Directors, to the Head of Operational Complexes and, in this document, R/2, it is further provided, that, General Manager will continue to exercise concurrent powers. I am also referring to another document, which is dated 13‑4‑1983, issued by Ltd. Col. S.M. Shafi. In this Circular, it is shown, that, the dismissal orders issued and accepted by the Complex Heads, and of the interchangeable categories, it has been discovered, that, all cases of resignation, termination or dismissal, should be referred to the Central Administration, for final decision, by the appointing authority.
16. With this background, the question is, whether Mr. Mohammad Shafi, who dismissed the petitioner, after enquiry officer's findings, was competent to approve the dismissal, being the General Manager, (Administration & Personnel), who was notified under the Factory Act.
17. According to Standing order 15, employer, for the purpose of the approval, regarding dismissal of employee, must be understood, to be an employer, who is the employer in actual sense, or the Manager, if includes in the definition of employer, must be the manager, who is registered under the Factory Act, by notification. In this case, Steel Mills is a corporation. If the corporation means, the Pakistan Steel Mills Corporation Limited, under Service Regulations, then Board means, Board of Directors. The Chapter 2 deals with the classification also, of the post of different managers, including the Senior Manager. And, it is provided, that, Board shall have the power to alter or change those regulations, from time to time. If Administration Manager, has issued the Circular on 23rd July, 1981, that the Board of Directors has been pleased to delegate the Administration and Financial Powers, to hand over to the Operational Heads of Complexes, to the extent, as laid down in the Schedule of Delegation of powers, this type of delegation was not from the manager, by delegator, to another delegatee, but direct powers of delegation, from the Board of Directors, who were supposed to be the employer, with otherwise powers of removal, termination, compulsory retirement, and the punishments, as given to the Head of the Operational Complexes. The contention of Mr: Ashraf Rizvi, that, Lt.‑Col., Mohammad Shafi is not the employer, for the purpose of dismissal, I will overrule the objection, for this reason, that, no doubt the word employer is highly significant, for dismissal of an employer, as the power of dismissal is special prerogative, vested in the real employer, to agree with the findings or not to agree with the findings, or even to dispense with the enquiry and forgive the employee. But, in this peculiar case, the employer has given direct powers to the Head of Operational Complex, for the efficient organization, which is laid down in Schedule. If the letter, dated 13‑4‑1983, is referred by Mr. Rizvi, it is only in the form of suggestion, to revise the earlier decision, and not the Board of Directors concurrence.
18. Mr. Ashraf Rizvi, representative of labour, has referred to statement of clerks, Mr. Kifayat Ali and Mr. Mohammad Hanif, recorded in some other case, that, General Manager, A & P, was competent authority, to take disciplinary action. The Affidavit, according to him, was the Affidavit of Assistant Manager, A & P. But, in the present case, the facts are altogether different, that, there is delegation of powers from the Board of Directors itself, and, according to Mr. Mansur Alam, respondents' representative, that, R.P.P. P.S. F.C.L. has been separated in 1981, to show, that, this power was issued for Lt.‑Col. Mohammad Shaft, to meet the situation, arising out of the separation. So the facts are distinguishable in this case. Lt.‑Col. Mohammad Shafi was the competent authority, in this Court's opinion.
19. Second point, Mr. Ashraf Rizvi has contended, that, notice of personal hearing and the enquiry report was not furnished and, therefore, it has caused prejudice in the mind of the petitioner. On the other hand, respondent has contended, that, they are not bound to provide the copy of the report or the proceedings, unless demanded by the petitioner, when he has participated in the proceedings, as admitted by him. Whether the omission to furnish the copy of report of the proceedings, in the absence of request, caused prejudice, to the accused, alleged of misconduct, and, secondly, whether the omission, to give the report, also vitiates the proceedings, causing apprehension, in the mind of the petitioner, that, he was not given justice at all. Mr. Rizvi has also referred certain citations, in this connection, 1984 P L C 378, in case of Mohammad Younus v. Labour Appellate Tribunal, where it was held, that the employer is bound to supply to the worker, copy of enquiry report, before passing any final order, against him, and this view was based, according to the counsel Mr. Rizvi, on the judgment of the Hon'ble Supreme Court, in case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal; reported in 1973 SCMR 455. This argument is advanced by Mr. Ashraf Rizvi, in the Memo. of his arguments, on page 13 of which I have made particular reference, when it is contended, by Mr. Mansur Alam, that, they are not bound to supply the copy of the report, unless requested for. Thus, the reference is made to the above decision, to find support of the view of Mr. Ashraf Rizvi, in this context.
20. Further I may also refer one very important aspect, referring to subsection (4), which reads in this manner: ‑
"Provided, that the workman proceeded against, may, if he so desires, assistance, in the enquiry, nominate any workman, employed in that establishment, and the employer shall allow the workman, so nominated, to be present, in the enquiry, the workman.
21. It will be seen by the wordings that, words 'used also are "if he so desires", it appears, that the word if so desires has been used expressly. On the same analogy, if I am to read that copy of the report or notice of personal hearing shall not be supplied, there would have been express intention, that, the copy shall be so supplied or there would have been clear exclusion in the proviso itself. The words "if he so desires" also appears to be meaningful. So, on the same principle if the intention would have been, that, no copy of the report of the proceedings, shall be supplied, unless the petitioner desires, there would have been specific language either of exclusion or inclusion, otherwise, therefore, it appears, to me from the scheme and objects of the Ordinance, that, independent enquiry has been emphasised, it means, "till the last stage of dismissal". And such shall be presumed, that, enquiry report shall be the basis of the rules and requirements of natural justice, for the petitioner, to know, that conclusion was drawn to prepare representation, before the higher authorities, and not to be taken by surprise, at the time, when the petition is filed in this p Court, and first time shown. Specially, the copy of the report, in the domestic enquiry, in the Court's opinion, must be furnished to the accused when the enquiry is of private nature, distinguishable, from the Civil Servant Enquiries, where also the copy of report is supplied. Basically, this is the requirement of the rules of natural justice, which forms part of every enactment.
22. Whether the omission of the enquiry report and the personal hearing, are the serious departure, in the rules of enquiry, and, whether from that stage, the omission of such nature also vitiates the proceedings. In this case, I refer the case of Mohammad Younus v. Labour Appellate Tribunal, 1984 P L C 381. The observations are referred as follows: ‑
"It stands established on higher authority that the employer is bound to supply copy of the enquiry report to the worker, before passing final order on the enquiry, against him. Even under Standing Order 15(4), the employer is under legal obligation, to supply the copy of the enquiry report."
And, His Lordship further referred the case of Punjab Road Transport Corporation v. Labour Appellate Tribunal, and observed: ‑
"It was held by the Hon'ble Supreme Court of Pakistan, that, not only the respondent, should have been furnished the copy of the enquiry report, but also should have been given opportunity to show cause."
23. With this legal position, this Court is also of the view that if the word independent enquiry is used in rule 4 of Standing Order 15, the proceedings, from the very start, till the dismissal, must be independent proceedings, and any such omission or departure, can lead to this conclusion, that, first time, enquiry report is shown to the accused, when he could not see the report, or to prepare representation, or to find out defects, or to take any course of action against that report, so it is the serious prejudice in the mind of the petitioner, till he was absolved of such prejudice, and received the decision, from the Court. But, in this peculiar case, if fact is distinguishable, it cannot be said, that, the proceedings, upto the findings of the enquiry officer, were improper, to lead to this inference also, that, the proceedings were vitiated, if it was under misunderstanding of legal position. As it has often been argued by the counsel Mr. Mansur Alam, that, enquiry report or the personal hearing, is not the mandatory requirement, and secondly, if there is no evidence of mala fide otherwise. Mr. Rizvi, also has referred the case of Syed Latafat Hussain Shah, decided by this Court, on the question of non‑supplying of the enquiry report, and copy of the proceedings. This Court will not tough the merits, as the Court's decision is under Appeal.
24. In the opinion of the Court, in the present case's facts, in view of the authority referred, the omission to supply the enquiry report, or the personal hearing, is the non‑requirement of the rules of natural justice, and it has been held in view of the authority referred, that, employer is under legal obligation to supply the copy.
25. On the point of time limitation, it is contended that he was served with the dismissal order, dated 7th December, 1982, and filed appeal on 13‑12‑1982, according to the Service Regulations, and the appeal was rejected on 26‑1‑1983, which was posted on 31‑1‑1983, as discovered from the Postal Cover, and delivered on 5‑2‑1983. The Applicant sent notice of grievance on 16‑2‑1983, under the enclosing letter, dated 20‑3‑1983, despatched on 22‑3‑1983. It was delivered on 2‑3‑1983, and he was informed, that, request was not accepted, thereafter, he filed grievance petition on 30‑3‑1983. So if time is computed and spent in Appeal, from 5‑2‑1983, when the appellate authority, communicated rejection, the application under section 25‑A, was within, time. In this context, number, of decisions have been referred by Mr. Ashraf Rizvi, and the last decision, to which, I make specific reference, is the decision of the Hon'ble Appellate Tribunal, where His Lordship, in case of Rafiq Ahmad Jokhio v. Pakistan Steel Mills, reported in 1984 P L C 378, has held as follows:
"Aggrieved workman, making mercy petition to the highest authorities, with prayer to review the dismissal order, and the same passed on, to the relevant authority, for disposal as an appeal, record indicating, that, the same ultimately treated as an appeal, and rejected. Workman, after waiting for considerable time, of more than 2 months, serving the grievance notice, with prayer that dismissal order be withdrawn, with full back benefits. Petition in circumstances, held, complied with all requirements of time, spent in such appeal could not be ignored and the limitation, which start from the date of dismissal, of the same.
26. Finally the case is of the petitioner's absence of habitual nature. This is very important piece of evidence. The show‑cause notice, which is the subject‑matter of the enquiry, dated 7th November, 1982, where the misconduct has been described in this manner, that, he remained habitually absent, from duty, without prior permission. The information further adds, in that show‑cause notice, that, between 13‑4‑1982 and 31‑10‑1982, he has remained absent for 35 days, from various durations, ranging from 01 day to 09 days. In July, 1982, he was warned to desist from such unauthorised absence.
27. These are the actual wordings of the show‑cause notice. All that he has explained in Para. 3 of the grievance notice, that, the reason of absence was due to domestic circumstances, which included the death of nephew, and the continuous illness of his mother, which prevented him from attending the duty.
28. In the enquiry proceedings, which is on page 48, it is also revealed, that, between April and October, he clarified position only for 6 days, by producing two leave advices. It may also be mentioned here, that, previously also, he was given the show‑cause notice, and, there was Memorandum, dated 12th July, 1982, that, you have been warned to be careful in future, and the Memorandum explains its position.
29. The enquiry proceedings also further has shown, that, he admitted absence for 3 days, due to death of nephew, and, his statement further is in the form of apology, from the management, for such lapses.
30. Assistant Manager, Mr. Moosa Askari, has also admitted before this Court, that, he only considered the period of absence, which was the basis of charge‑sheet. Then certain extracts of the petitioner's evidence, regarding warning and show‑cause notice, are admitted by him, showing his previous record. He refers to the explanation to the notice of habitual absence, dated 12‑10‑1977. He also admits that he received warning on 8‑10‑1977. He also admits, that, he received notice, on 11‑10‑1978, Exh. A/6. He has also shown ignorance, whether any complaint was made by Capt. Haroon, regarding his absence. He has also shown ignorance that any complaint was made by Major Imam. He also admits that, he received show‑cause notice on 26th November, 1981. He also received the warning letter, dated 13‑12‑1981. He does not admit the Memorandum, regarding adverse report. He also admits, that, he fully participated in the enquiry.
31. So, on the merits, if the petitioner had full confidence, in the enquiry officer, regarding conduct of proceedings, till the finding, and admitted his position, and the enquiry officer, as shown in the show‑cause notice, between the period of April and October which was the longest period of absence. I find that the petitioner's case was rightly decided by the enquiry officer, in view of his most unpleasant record of service. Tragedies do occur, as it is said in case of nephew's death, but, in the manner, he remained absent, the enquiry officer has done justice to him, on the merits of evidence, which he challenged and failed to have legally justification by explanation, through defence.
32. Finally, Mr. Ashraf Rizvi, has referred the rulings, which I also refer here. He has referred to NLR 1983 TD 284. In this case, the application was under section 25‑A, reference from the Muslim Commercial Bank. Held, that, the time of filing the grievance petition also includes the time spent in waiting decision of departmental appeal. There is another decision of 1980 P L C 42, Allied Bank v. Punjab Labour Appellate Tribunal. In this case, also, the question of limitation came in application under section 25‑A. Held, if the employer has entertained, delayed appeal and time was spent in such appeal, could not be ignored. It was also held, that, the limitation is to start from the disposal of the appeal. There is another decision on the point of back benefits, Held, that, if the dismissal order is passed, without enquiry, into the misconduct, re‑instatement, with back benefits awarded by the Labour Court and affirmed by the Appellate Tribunal 1983 PLC 725. Another decision is referred 1983 P L C 721. The contention was that, the Labour Court cannot go behind the findings of the fact, by the enquiry officer, and could not arrive at any independent conclusion, in respect of the allegations established in the domestic enquiry. This plea was not accepted in the Constitutional Petition and it was held that the Labour Court was fully empowered to enter into the question of fact, and to arrive its own conclusion, besides the legal defects. There is another decision, in case of 1983 P L C 449. It Was contended, that, if there was habitual absence from duty, the last absence, from duty to be within period of one month, contemplated by Standing Orderly 15(4). There is decision of 1983 P L C 468, in this case also, it was held that the grievance arose, when the petitioner was reasonably deemed to have come to such conclusion, after giving sufficient time, to Bank authorities, to decide the appeal, if service rules provided right of appeal.
33. In the result, the Court is of the view, that, enquiry, though was held by the enquiry officer, in proper manner, upto the stage of findings, that the petitioner was guilty of misconduct. But, whether the omission, to supply enquiry report, or the personal hearing, as observed by the Court, relying on the reported decision, was serious departure, from the rules of enquiry, to be independent from the stage of findings, thus, causing prejudice to the petitioner, that the enquiry report was withheld, which was his basic right, under the rules of natural justice, relating to the security of service. Indeed, there is no mala fide on the part of the respondent, enquiry officer or otherwise, except the omission, whether, on the misunderstanding of the legal position, but, the enquiry report is the basic requirement, and the employer, otherwise, is under legal obligation to supply it.
34. In that case, after considering the fact of misconduct otherwise, established, the termination by way of dismissal is legally defective, for want of personal hearing, though the enquiry report has been perused by him in the Court, anti yet his position still returns to the same status, till the authority has given the proper hearing to him and pass the order legally.
35. It may be contended, that, once the termination is defective, he remains in service, with back benefits, and no question of further personal hearing is necessary. This Court is of the view that, in the petition under section 25‑A, I.R.O., the Court is empowered under the subsection (5), to go into the facts, and to pass such order, which is just and proper, to meet the ends of justice, to both the sides, accordingly, this order is passed, that personal hearing be given and then the respondent is to pass order, as observed above, or any order, he thinks proper.
36. The next question has come for the entitlement of the back benefits. Mr. Ashraf Rizvi, has also referred number of authorities, in this case, on the question of back benefits, on the principle, that, back benefits be awarded, if the termination is illegal. There is decision, which he has referred, of 1983 P L C 725. In this case, the dismissal order was passed without enquiry, and the back benefits were awarded by the Labour Court and confirmed by the Appellate Tribunal.
37. In this peculiar case, the enquiry has been conducted properly. Misconduct has been proved against him. There is only want of personal hearing, which also, according to the above authority, referred by this Court, employer is under legal obligation to supply the enquiry report and personal hearing and, therefore, the enquiry is not according to the rules, from the stage of findings, and not earlier.
38. Generally, if the man has not worked in the organization, and the enquiry has also been proved against him, distinguishable on the facts, the back benefits, in this particular case, should not be awarded. But, as Mr. Rizvi has pointed out, that the position of the applicant reverts to the original position, where there is non‑compliance of the rules, the termination, if held defective, the petitioner is entitled to back benefits on the principles involved on the basis of the decisions.
39. I have also seen further aspect, that, evidence of mala fide is also not there, and, Mr. Mansur Alam's argument also is, that, unless the enquiry report is desired, there is no contravention, but this Court is of the opinion, that, in view of the above decision, on which, the Court has observed, that, the enquiry was not according to the rules, from the stage of finding, where the employer was under legal obligation to supply the enquiry report and to give personal hearing. The back benefits are awarded only to the extent legally admissible, accruing before the petition, and so also the absence pay will not be paid, of the period shown in show‑cause notice.
40. However, in view of the above observation, that, if the employer is not satisfied, on the personal hearing, according to law, he can pass the order as he deems fit.
41. Petition allowed to that extent. The petitioner, in this situation of the matter, is temporarily re instated, reverting to the original position, till the proceedings are finalised, as observed by the Court.
A.E.
Petition partly allowed.
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