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

--S.8 & S.O.15(4)-Show-cause notice--Validity, determination of- Provisions of Ordinance V I of 1968 in relation to P. I. A. exempted by Notification, dated 9-9-1976--Such exemption subsequently withdrawn by Notification, dated 18-2-1978--Show-cause notice issued after rescision of earlier Notification to P.I.A. employee being valid, proceeding drawn against such employee under provisions of Ordinance, held, were legal- Date of Notification published in official Gazette would not be starting point for the operation of Ordinance but the date on which the Notification rescinding earlier notification was issued, would be.

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

---S.O.15(4)--Constitution of Pakistan (1973), Art.199--Order of dismissal--Requirements--Notice of misconduct to workman to be issued within one month of date of such misconduct or from date when same comes to knowledge of employer--Knowledge of employer, connotation of--Knowledge of employer, held, would be considered from the date when such employer had definite material against workman--Period of one month for issuance of notice to workman for his misconduct would be reckoned from the knowledge of employer--Concurrent findings of Tribunals below on date of knowledge of employer being in accord with legal requirements, High Court upheld such findings in constitutional jurisdiction.

(c) Interpretation of statutes--

--- Procedural change--Mode of interpretation--No person, held, has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues--Where an Act of Parliament alters that mode of procedure, he can only proceed according to altered mode--Alterations in the form of procedure were always retrospective, unless there was some good reason why they should not be.

(d) Industrial dispute

--- Non-participation in domestic enquiry--Effect--Petitioner choosing wrong forum for seeking his remedy--Plea of petitioner that domestic enquiry was, held, during stay order granted by Additional District Judge repelled--Domestic enquiry had been concluded before grant of stay order-Proceedings conducted by Enquiry Officer, held, were proper and legal--Petitioner having filed grievance petition after termination of services, had been fully participating in proceedings before proper forum--Labour Appellate Tribunal had considered all the contentions of petitioner and after hearing him had confirmed findings of Labour Court--In view of such findings petitioner could not urge that proper opportunity was not afforded to him.

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

--S.O.15(3)--Acts of fraud fall within ambit of S.0.15(3) of Ordinance VI of 1968--Where a workman has committed fraud by submitting forged certificates, such act, held, would fall within mischief of S.0.15(3) of Ordinance V I of 1968.

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

--S.O.15(3)--Word "fraud", connotation of--Word "fraud", held, has not been defined either in Ordinance VI of 1968 or in any other law relating to labour--Meaning of "fraud" with reference to precedents stated.

Joliffee v. Baker (1883) II Q B D 255 and Halsbury's Laws 3rd Edition 189 rel.

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

--S.O.15(3)--Misconduct how committed--Conduct of petitioner/ workman in furnishing information which was incorrect and false, held, would clearly attract provisions of S.0.15(3) of Ordinance VI of 1968.

Pakistan International Airlines Corporation, Karachi and 4 others v. Allah Ditta Bugti P L D 1979 Kar. 542 and Sind Road Transport Corporation v. Syed Abid Ali Shah and 3 others 1980 P L C 969 ref.

S.M.A. Mahmood for Petitioner.

S.A. Sarwana for Respondents.

Date of hearing: 9th February, 1987.

ABDUL QADEER CHAUDHRY, J.

-- The relevant facts for the disposal of this petition are that the petitioner joined the respondent No.1 Corporation as a peon in the year 1967 and then rose to the post of Technical Librarian. On 20-4-1978 he was served with a show-cause notice (Annexure 'D'). It was followed by a charge-sheet, dated 23-4-197 (Annexure 'E') wherein the following acts of misconduct were alleged against the petitioner:-

(a) That' the photo copy of the provisional Matriculation and Mark Sheet submitted by you to the Corporation have been found forged.

(b) That the copies of the certificate submitted by you certifying you to have qualified Librarianship Examination have also bee found forged.

(c) That on your application, dated 10-4-1978 you have fraudulently affixed the signature of Mr. S.A. Rasool, Chief Librarians Technical Librarian, Technical Library which as a matter of fact he never signed.

(d) That you submitted false information with regard to your educational certificates, experience and date of birth to the Corporation vide your application, dated 19-4-1972.

(e) That you have also falsely stated your date of birth as 31-12-1941 in your employment application whereas the same was 31-12-1945. "

The petitioner submitted a reply to the charge-sheet but the same has not been filed alongwith the petition. However, Mr. Ghazanfar Mashkoor had been appointed as an Enquiry Officer to hold the enquiry against him. The information was given to the petitioner vide letter, dated 27-4-1978. He was also informed that the enquiry would commence on 4-5-1978 at 10-00 hours. The petitioner filed a civil suit challenging holding of domestic enquiry. The learned Civil Judge originally passed an interim order staying the holding of the enquiry but subsequently the stay was vacated and the plaint was returned to the petitioner for want of jurisdiction by the civil Court's order, dated 20-5-1978. The petitioner was thereupon served with another notice by the management to appear before the Enquiry Officer on 30-5-1978 at 10-00 a. m. The petitioner appeared before the Enquiry Officer on the aforesaid date but sought adjournment on the ground that he had filed the appeal against the order of the Civil Judge. The Enquiry Officer postponed the enquiry to 3-00 'p. m. on the same day. The petitioner failed to appear before the Enquiry Officer who conducted the enquiry ex parte and after recording the statements of the witnesses submitted his report with the finding that the petitioner was guilty of the charge made against him. On 31-5-1978 the Additional District Judge passed an order of status quo. The appeal was ultimately allowed by the Additional District Judge and the order of the learned Civil Judge was set aside by his order, dated 10-8-1978. The respondents challenged this order of the Appellate Court through revision petition in the High Court and the High Court by its order, dated 2-12-1978 accepted the revision petition and set aside the order passed by the Appellate Court. The petitioner then presented petition for Special Leave to appeal to the Supreme Court but the same was dismissed by the Supreme Court by its order, dated 12-8-1979. In the meanwhile a second show-cause notice, dated 14-12-1978 was served upon the petitioner. A copy of the finding of the Enquiry Officer had been furnished to the petitioner with the respondent No.1's letter, dated 7-8-1978. The petitioner submitted his explanation to the second show-cause notice and also given personal hearing or. 18-12-1978. As his explanation was not found satisfactory he was dismissed from service vide order, dated 20-12-1978. The petitioner made a grievance petition under section 25-A of the Industrial Relations Ordinance before the IVth Labour Court Karachi which had been dismissed. The petitioner then challenged the order of the Labour Court before the respondent No.2, the Sind Labour Appellate Tribunal. The learned Sind Labour Appellate Tribunal by an exhaustive order, dated 9-8-1982 dismissed the appeal. The learned Tribunal considered all the contentions of the petitioner and gave its findings. The petitioner being aggrieved has filed the present constitutional petition.

2. We have heard the learned counsel for the parties. Learned counsel for the petitioner has made the following submissions:

(i) The charges of misconduct came to the knowledge of the respondent No.1 on 15-3-1977 but the charge sheet was served on 20-4-1978, therefore, the show-cause notice was issued after about 13 months whereas under S.0.15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance, prescribes a period of one month for initiating the proceedings.

(ii) No proper opportunity was given to the petitioner inasmuch as that the petitioner was agitating the matter before the civil Court but the Enquiry Officer conducted the Enquiry ex parte.

(iii) The allegations made against the petitioner did not amount to act of misconduct.

3. It is an admitted position that the provisions of the Ordinance were applicable to the present case. As regards the first contention of the petitioner the said objection was taken before the respondents 2 and 3. The respondent No.2 has dealt with this objection extensively in the impugned order. It is contended by the learned counsel for the petitioner that the provisions of the Ordinance in relation to P.I.A. , were exempted by means of Notification, dated 9-9-1976 issued by the Government of Sind under section 8 of the Ordinance. This Notification was published in the Sind Government Gazette, dated 16-9-1976. The exemption granted to the P.I.A. was withdrawn with immediate effect by Notification, dated 18-2-1978. The said Notification was gazetted in the Sind Government Gazette on 4-5-1978. It is urged by the learned counsel that the show-cause notice was issued on 16-4-1978 but the Notification withdrawing the operation of the provisions-of the Ordinance was published in the Gazette on 4-5-1978, therefore, no proceedings under the provisions of the Ordinance could be conducted against the petitioner. This contention has no force. The Notification rescinding the earlier Notification, dated 9-9-1976 was issued on 18-2-1978 but the show-cause notice was issued after this date when the Ordinance came into effect, therefore, the proceedings drawn against the petitioner under the provisions of the Ordinance were legal. The date of Notification published in the official Gazette would not be starting point for the operation of the Ordinance but when the Notification had been issued, therefore, this contention has no force. In the same context it has been urged that under S.O.15(4) of the Ordinance a notice should have been issued within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer. S.O.15(4) of the Ordinance is reproduced below:-

"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 such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman."

In the present case the respondent No.1 was informed by the P.I.A. on 15-3-1977 about the misconduct of the petitioner. The respondent No.1 made inquiries and after the necessary enquiry, show-cause notice was issued to the petitioner. The knowledge of the employer would be considered from the date when the employer had the definite material against a workman. The agency had intimated the respondent No.1 about the conduct of the petitioner. The respondent No.1 had no material before it to proceed against him. Knowledge of the respondent No.1 was hearsay. The employer made enquiries before proceeding against the petitioner. That procedure was in the interest of the petitioner because the domestic enquiry could not be started merely on a report of a foreign agency. The employer took all precaution before proceeding against the petitioner. The petitioner was working under respondent No.1 and before proceeding against the workman the respondent No.1 took upon themselves to make the investigation into the allegations made against the petitioner by F.I.A. The petitioner was not prejudiced in any way. No adverse action had been taken against him before the issuance of show-cause notice, therefore, for all practical purposes the period of one month would not be reckoned with effect from 15-3-1977 when the F.I.A. had informed the respondent No.l, but from the knowledge of the respondent No.l. There are concurrent findings o the Tribunals below on this point and we are in full agreement with the findings on this score.

The learned counsel for the petitioner has submitted that the Ordinance is procedural and, therefore, after the provisions of the Ordinance came into, force strict compliance of S.0.15(4) was necessary and notice should have been issued within one month from the knowledge. He has referred to Maxwell on interpretation of statutes, Twelth Edition page 222, wherein it is stated that presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the Courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. There is no dispute with this proposition but we have observed that the notice was issued within one month of the knowledge and thus the provisions of S.O.15(4) of the Ordinance have been fully complied with.

The second contention of the petitioner's learned counsel is that reasonable opportunity defending himself at the domestic enquiry was not given to the petitioner. The respondents 2 and 3 have not accepted the contention of the petitioner and it has been held that proper opportunity was afforded to the petitioner. After the charge sheet was issued to the petitioner on 23-4-1978 the petitioner filed a civil suit in the civil Court and stay was granted. That stay was vacated and the Enquiry Officer started the domestic enquiry on 30-5-1978. The petitioner requested the Enquiry Officer to adjourn the enquiry proceedings as he intended to file an appeal in the District Court against the order of the Civil Judge dismissing his suit for declaration and injunction. The petitioner filed appeal on 25-5-1978 but the stay was not granted and the domestic enquiry was concluded on 30-5-1978. The Additional District Judge granted order of status quo on 31-5-1978 thus the domestic enquiry was concluded before the grant of stay order. The petitioner did not participate in the domestic enquiry but the Enquiry Officer held that the charge sheet against the petitioner had been proved. The Additional District Judge accepted the appeal but as stated above in Revision the order was set aside. The petitioner himself chose a wrong forum. The civil Court had no jurisdiction in the matter. No stay was granted by the District Judge and, therefore, the proceedings were properly conducted by the Enquiry Officer. Additionally, after the services of the petitioner were terminated by the respondent No.l the petitioner filed a grievance petition before the respondent No.3. The petitioner examined himself. The respondent No.l also examines four witnesses. The petitioner's counsel had cross-examined the witnesses of the respondent, therefore, even if the case was decided ex part", by the Enquiry Officer in domestic enquiry due to the conduct of the petitioner himself, proper opportunity was granted by respondent No.3. On the basis of material on record the respondent No.3 dismissed the application of the petitioner. The respondent No.2 considered all the contentions of the petitioner but affirmed the finding of respondent No.3. Therefore, it cannot be urged that proper opportunity was not afforded to the petitioner.

As regards the third contention of the petitioner that the charges levelled against him do not amount to misconduct, suffice it to say that the petitioner had committed the fraud by submitting forged certificates and, therefore, this act of the petitioner comes within the mischief of section 15(3) of the Ordinance. S.0.15(3) reads as under:-

"15(3).--The following acts and omissions shall be treated as misconduct:-

(b) theft, fraud, or dishonestly in connection with employer's business or property.

The respondents Nos.2 and 3 have discussed the evidence on record and both the respondents have come to the conclusion that the charge sheet containing the allegation that the provisional Matriculation and Mark sheet were forged. Even the appellate in his evidence did not deny that the letter, dated 2-6-1969 written by the petitioner to the Senior Administrative Officer bears his signature. The Assistant Controller, Board of Secondary Education, Karachi was also examined and he has stated that the Provisional Certificate and mark sheet accompanying the petitioner's letter, dated 2-6-1969 are forged. Learned counsel for the petitioner has referred to the statement of Assistant Controller Mr. Sami Latif wherein in cross-examination he has stated that the marks sheet and the original Matric Certificate in respect of Roll No.7301 in favour of Muhammad Izharul Ahsan Qureshi are genuine documents and issued by the Board but the allegation against him is that the Provisional Certificate in favour of Muhammad Izharul Ehsan Qureshi Roll No.32928 and mark sheet in his favour were not genuine. Therefore, the evidence of the witnesses with regard to the documents furnished by the petitioner to the respondent No.l has not been challenged. The learned respondent No.2 while summing up the contentions of the petitioner has observed as under:-

"it was strongly urged by Mr. Mahmood that even if the acts alleged against the appellant are deemed to have been established, they do not fall within the ambit of clause (3) of Standing Order 15, and hence the orders of dismissal of the appellant are invalid. I regret that I find no force in this contention. The appellant has given false information to his employer in his application for employment and in his subsequent application, in regard to his age, his previous experience and his qualifications. He has even gone to the extent of producing false Matriculation Certificates and false testimonials /certificates regarding his having successfully completed course of training in Librarianship and has also either forged or made use of the forged endorsement of his superior, Mr. Hashmi, on an application made by him indicating that he had successfully completed the prescribed course from the School of Librarianship in July 1969. These acts, in my humble opinion constitute fraud by the appellant in relation to the employer's business.

Fraud has not been defined either in the Standing Orders or in any other law relating to Labour. However, its true meaning is not difficult to comprehend, Watkin Williams, J. in the case of Joliffee v. Baker (1883), II Q.B.D. 255, while construing the cases of fraud observed as follows:-

'Fraud', in my opinion, is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done, as well as much unnecessary pain inflicted by its use where' illegality and 'illegal' are the really appropriate expressions'.

I will also in the end refer to the discussion on what constitutes fraud in Halsbury's Laws (3rd Edition 189):-

"It would be difficult if not impossible to define 'fraud' in such a way as to provide for every case in which the term may be used and I do not propose to attempt to do so. It normally refers to something dishonest and morally) wrong, particularly the acquisition of pecuniary or material benefits by unfair means."

4. We fully subscribe to the views of the learned respondent No. 2. The conduct of the petitioner in furnishing information which were incorrect and false clearly attracts the provisions of section 15(3)(b) of the Ordinance. In addition to the above observations the learned counsel for the respondent No.1 has stated that even under the P.I.A. Code this was misconduct. This contention is in reply to the petitioner's contention that the provisions of the Ordinance were not applicable when the show-cause notice was issued. Learned counsel has placed reliance on the case of Pakistan International Airlines Corporation, Karachi and 4 others v. Allah Ditta Bugti P L D 1979 Kar. 542 in which it has been observed that the Service Code or the Administration Manual did not have any force of statutory rules but all the same having been issued by the governing body of the Corporation, would have binding force. He has also referred to the case of Sind Road Transport Corporation v. Syed Abid Ali Shah and 3 others 1980 P L C 969. The learned respondent No.l has considered this case in the impugned judgment and the dictum laid down in this case does not apply to the facts of the present case.

5. In the result this petition has no force. The same is hereby dismissed without any order as to costs.

A. A. /M-66/ K

Petition dismissed

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