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Writ Petition No.400 of 1985, decided on 24th March, 1986.

‑‑‑S.O.15(4) & Sched.‑‑Factories Act (XXV of 1934), Ss.2(c) & 9(1)‑----Qanun‑e‑Shahadat Order (10 of 1984), Art.118‑‑Dismissal of workman after inquiry‑‑Competency to pass order‑‑Burden to prove the lack of authority in official taking action against workman‑‑Requirements‑ Approval of employer necessary for institution of inquiry and passing order of dismissal against workman‑‑Dismissal of workman by Administrative Services Manager‑‑Plea of workman that such official lacked authority to proceed against him neither taken in domestic inquiry proceedings nor in evidence before Labour Court‑‑Effect‑ Burden to prove, lies on party who would fail if no evidence was led on either side‑‑Where a person asserted that any illegality had taken place, onus to prove same would lie on him‑‑Proper course for workman was to have alleged in his statement that official taking action against him was not the Manager clothed with the status of an employer‑‑Burden of proof then would have shifted to establishment to prove that the name of such official was borne on the record of the Inspector of Factories having status of employer.

‑‑‑S.9‑‑Constitution of Pakistan (1973), Art 199 Constitutional jurisdiction, exercise of‑‑Finding of Labour Appellate Tribunal holding that official taking action against workman lacked status of employer being ill‑founded and replete with surmises and conjectures based on misreading of evidence was set aside by High Court in its constitutional jurisdiction‑‑Finding of Labour Court which was in accord with evidence on record was restored,

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

‑‑‑S.15(3)(b)‑‑"Act subversive of discipline", connotation of‑‑Abusive language used by workman, non‑performance of his duties and threatening other workers on performing such duties as entrusted to them by superiors, held, amounted to "acts subversive of discipline".

Muhammad Afzal Siddiqui for Petitioner.

Sadiq Muhammad Warraich for Respondent No.2.

Dates of hearing: 16th, 17th and 18th March, 1986.

.‑‑Jaggar Masih. respondent herein, was employed as a sweeper with the petitioner‑Company. He was proceeded against for misconduct. In the enquiry held against him, the Enquiry Officer found that out of 5 charges of which he was accused of, 4 were proved against him. On the basis of the enquiry report dated 30‑6‑1983, the Administrative Services Manager; by means of order dated 11‑7‑1983 dismissed the respondent from service. His representation to the Managing Director of the Company having failed, he served a grievance notice on the Administrative Services Manager, which went unheeded. The respondent then filed a grievance petition under Section 25‑A of the I.R.O. It was dismissed by the Labour Court on 26‑12‑1984. He challenged this dismissal before the Labour Appellate Tribunal, who accepted the respondent's appeal. The Tribunal's order dated 30‑9‑1986, has been called in question by the petitioner through this writ petition.

2. It is discernible from the record that the dismissal order and the charge‑sheet were issued and the appointment of the Enquiry Officer also made by Administrative Services Manager. Before the Labour Court, the respondent raised the plea that all this was done without the approval of the employer and thus the entire action against him was wholly illegal. According to him, the Administrative Services Manager could not be categorized as an employer, as no written notice, showing him to be the Manager of the Factory in terms of Section 9(1)(e) of the Factories Act, was given to the Inspector of the Factories. But the Labour Court rejected this plea and found that this ground was neither urged in the grievance notice nor evidence in support thereof was adduced by the respondent. However, the learned Tribunal did not uphold this finding and took the view that the Administrative Services Manager, was not covered by the definition of the term "employer" as given in section 2(c) of the Standing Orders Ordinance, 1968. In its opinion, the objection was raised in Para.3 of the written statement; it was for the petitioner to have realized its implication and establish by evidence that the name of the Administrative Services Manager, was conveyed to the Inspector of Factories and the requirement of Section 9(1)(2) complied with.

3. Seemingly, the petitioner pointed out to the Tribunal that the respondent failed to urge this point in the grievance petition and the reply to the charge‑sheet and show‑cause notice etc. But this argument did not carry any weight with it. The learned Tribunal held that the respondent was not bound to hint upon that illegality at the earlier stage and its mention in the grievance petition alone was sufficient As regards the absence of this plea from the grievance notice the Tribunal maintained that the grievance notice does not partake the character of the pleadings. In view of these findings the Tribunal came to the conclusion that it was not proved that the Administrative Services Manager, commenced the proceedings against the respondent and issued the charge‑sheet and the dismissal order competently.

4. Before us, the correctness of these findings have been very seriously criticised on behalf of the petitioner, It is argued that throughout the proceedings before the employer, this objection was never raised. That the Company is a registered factory but it also runs a commercial establishment registered under the Shops and Establishments Ordinance, 1969 and under Section 2(c) of the Ordinance, the definition of the term "employer" in relation to a commercial establishment is, quite wide and the communication of the name of the Manager to the Labour Department, is not the requirement thereof. In this context it is submitted that the respondent should have clarified this position in his evidence and at least mentioned in his statement that the name of the Administrative Services Manager was not notified to the Inspector of Factories and thus, the punitive action taken and the dismissal order issued against him lacked the approval of the employer; but there is absolutely nothing to that effect in his evidence. The learned counsel took exception to the view expressed by the Tribunal in this behalf. He also cited some decisions of the Labour Tribunal, to contend that unless a plea is urged in the grievance notice it cannot be taken up in the grievance petition.

5. On the side of the respondent his learned counsel adopted the reasoning which influenced the decision of the Tribunal. He submitted that the objection as to the want of the employer's approval, was specifically urged in the written statement; the respondent could not be asked to prove the negative in the sense that the name of the Administrative Services Manager, was, not forwarded to the Inspector of Factories and thus the burden of proof lay on the petitioner; as the company did not give any evidence the findings recorded by the Tribunal were fully justified.

6. It is quite clear to us that under Para.15(4) of the Schedule to the Standing Orders Ordinance, it is only with the approval of the employer that enquiry can be instituted and a dismissal order passed against a workman. The definition of the turn "employer" as given in section 2(c) of the Ordinance, includes within the ambit thereof:‑

"(i) in a factory, any person named under clause (c) of sub‑section (1) of Section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory.

(ii) x x x x x x x x x x x x x x x x x x x x x x x x x x x x

(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment."

Section 9(1)(e) of the Factories Act, ordains that before the commencement of work in a factory, the name of its Manager should be communicated in writing to the Inspector of the Factories. In the grievance petition, it has been averred:‑

"That the charge‑sheet, appointment of enquiry officer and dismissal order have not been made or approved by the employer".

However, neither in the domestic enquiry proceedings nor in the respondent's evidence before the Labour Court, there is any reference to the absence of the employer's approval or that the Administrative Services Manager lacked authority of a "Manager", empowered to proceed against him and dismissed him from service. It is noteworthy that the respondent did not bank upon this illegality, at any stage of the proceeding before the employer. While we agree with the learned Tribunal that failure to include this ground in the grievance is not fatal to its incorporation in the grievance petition but we are unable to accept that despite there being not the slightest reference in the statement of the respondent or his evidence, both before the Enquiry Officer and the Labour Court, by mere mention of the plea in the written statement, a responsibility was cast on the petitioner to prove that the Administrative Services Manager qualified to be an employer.

7. It is well settled that the burden to prove lies on the party who would fail if no evidence is led on either side. Again when a. person asserts that any illegality has taken place the onus to prove the same lies on him. The principle that no one can be called upon to prove the negative, is, not attracted to this case. The proper course for the respondent, was, to have alleged in his statement that the Administrative Services Manager, was, not the manager clothed with the status of an employer as his name was not passed on to the Inspector of the Factories. The burden of proof then would have shifted to the petitioner to establish that the name of the Administrative Services Manager was borne on the record of the Inspector of Factories, maintained under section 9(1). Since in this respect, the respondent did not give any evidence, the petitioner was not under any legal obligation to adduce material, demonstrative of its stand that for the purposes of section 2(c), the Administrative Services Manager, could in law act as Manager. In this respect the grievance expressed by the petitioner that there was no occasion for him to produce evidence, to negative the petitioner's assertion seems to be well grounded.

8. During his submissions, the petitioner's learned counsel has drawn our attention to the certificate dated 5‑2‑1985 (Annex: 'S') and copy of the Annual Return, prepared under Rule 124 of the Factories Act, Rules (S.1). The certificate shows that as per record of the Labour Officer (Factories) Mr. Shafiq Ahmad Siddiqui is the Manager of the petitioner's Company. The "Annual Return" also expressly mentions his name as a Manager of the Factory. During his arguments, the learned counsel brought to our notice that in the course of hearing of the appeal, these two documents were produced before the Tribunal but it refused to place the same on the record, and did not even make reference thereto in the impugned order. There is a sworn affidavit dated 7‑10‑1985 on this file of Mr. Aziz‑ud Din, the Executive of the petitioner company in support of the arguments that the two documents were tendered before the learned Tribunal. There is no counter affidavit. However, the learned counsel for the respondent at the bar conceded to the extent that only one document was placed before the Tribunal. But in his submission, since there was no formal application for additional evidence, the document was rightly returned to the petitioner. The illegality or otherwise of the Tribunal's refusal to bring the documents on the file, is not here, in issue but the attending circumstances of the case do suggest that had there been an occasion necessitating the production of the evidence by the petitioner, the controversy would have been set at rest by the latter without any difficulty. We are unable to uphold the findings recorded by the Tribunal on the question of Administrative Services Manager's authority to act as employer. On the basis of the record, as it is, the respondent's contention must fail. The conclusion reached by the Labour Court in this behalf. appears to be in conformity with law and is restored.

9. We now, proceed to deal with the next contention of the petitioner. The charges against the respondent were that on 1‑6‑1983 at about 1‑15 p.m. he was called for to clean the production area in B.OI Building but he went round the place and then returned back without doing the job. The site having not been cleaned, he was asked by Mr. Wasim Aziz, Assistant Pharmacist Incharge at 4‑30 p.m., to clean the floor but he did not obey his instructions and told him that he was not under his direct subordination and would clean the area next day at his convenience. When the Assistant Pharmacist insisted upon the cleaning of the area by the respondent that very day, the latter became rash and used filthy language. The charge‑sheet further proceeds, that again on 2‑6‑1983, he not only refused to perform the work but remarked that he would break the legs of any other cleaner if he dared to clean the site. That he again insulted the officer and used filthy and abusive language. In reply to the charge‑sheet, the respondent did not refute these allegations but offered an explanation and tendered apology. Of course it was not accepted and an enquiry instituted. In the findings recorded therein, the Labour Court did not discover any lacuna and from the perusal of the record maintained that the charge of misconduct was proved against the respondent.

10. The learned Tribunal did not agree with the Labour Court and maintained,‑‑

..............The complainant Assistant Pharmacist said that at about 2.00 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 2.00 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 above mentioned defence plea, 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. It the evidence of the prosecution is believed then it will go alongwith the defence version, otherwise it becomes un-plausible and unbelievable. The defence witnesses have supported the plausible defence version.

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‑OI 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 2‑6‑1985 the appellant refused to clean the place."

11. Commenting upon these observations the learned counsel for the petitioner contended that in law there was no justification for Tribunal to held that some

12.

13.

But the determination of the question as to whether or not in the proceedings under Section 25‑A a domestic enquiry can entirely be ignored and the conclusions reached thereby altogether substituted by the Labour Tribunals, by its own conclusions, need not detain us, for, as canvassed on behalf of the petitioner, the impugned order even otherwise calls for interference.

14. It is manifest that the impugned order is replete with surmises. Instead of drawing some concrete conclusions from the facts appearing on record, with respect we may state, that the learned Tribunal has evolved certain hypothesis and then adduced some conjectural inference therefrom. After examination of the record, we are of the view that the petitioner's criticism of the impugned order is not ill‑founded. It is on the record that the demand of the Assistant Pharmacist was, the cleaning of the floor and not the removal of the rubbish container. Thus, mere lifting away of the rubbish container was not synonymous with the doing of the requisite work by the respondent. The learned Tribunal seems to have construed the removal of the rubbish container as complete discharge of his duties, by the respondent. This interference is not in consonance with the facts borne on the record.

15. As regards the respondent's plea that the working hours closed at 4.30 p.m. and, therefore, his refusal to work did not constitute misconduct by which the Tribunal was immensely impressed, the petitioner's learned counsel has informed the Bench that the factory actually closes at 4.45 p.m. but the female employees are permitted to leave 15 minutes earlier. The Enquiry Officer has also definitely held that the closing hours are 4.45 p.m. and the incident took lace during working hours. It appears that this finding escaped the notice of the Tribunal. Further the Tribunal did not give any consideration to the respondent s reply to the charge-sheet, which smacke of his admission. It is also to be noticed that the Enquiry Officer himself came to the work on 2‑6‑1983, was not proved against the respondent. But the learned Tribunal laboured under the impression that in the domestic enquiry this charge was held proved. It is also to be seen that while holding that the Assistant Pharmacist provoked the respondent, the learned Tribunal has referred to the former's statement and attributed remarks to him that some co‑worker of the respondent would clean the place but we find that no such remarks figure anywhere in the said statement. This is an instance of misreading of the record. Even the learned counsel for the respondent accepts it but he regards it as insignificant error not enough to vitiate the impugned order in its entirety. This explanation hardly merits consideration. It is evident from the impugned order that on the said incorrect factual assumption, some important reference have been based by the Tribunal, on which the decision under 'challenge in this writ petition, is in no small measure founded. Even otherwise, it is axiomatic that when a decision is given on appraisal of a number of facts, from which inferences are adduced, then the soundness of such decision must not be determined by weighing each fact in isolation, but by assessing the cumulative effect of all such facts in combination with the prevailing circumstances of the case. We feel, that the factors to which reference has already been made, sufficiently rob away the legal efficacy of the impugned order. There can be no gain‑saying that the misreading of the record ignoring of .material facts and founding a decision on surmises, are the well recognized grounds on which interference can legitimately be made in exercise of constitutional jurisdiction of the High Court..

16. We now proceed to discuss the two precedents cited on behalf of the respondents. In Noor Muhammad v. Sawar Khan, the writ petition was directed against the rejection of a revision, arising from a civil suit and in that context the Supreme Court observed that where a court, in contradistinction to a persona designata has jurisdiction to decide a matter, it can decide rightly as well as wrongly and a mere wrong decision on a question of fact or even of law, will not necessarily render its decision as without jurisdiction. The perusal of the other judgment shows that after the failure of the conciliation proceedings, the Trade Union applied to the Labour Court under Section 32 (1)‑(a) of the I.R.O. which issued a notice to the employer namely A.F. Ferguson and Co. The latter challenged this notice through a constitutional petition, Some of the issues raised before the High Court involved adjudication of disputed questions of facts. The High Court, therefore, dismissed the constitutional petition with which the Supreme Court did not interfere and maintained that controversial questions of fact could not have been determined by the High Court. These precedents have absolutely no bearing on the issues falling for adjudication before us. Accordingly these cannot be of any help to the respondent:

17. There should be no doubt that the respondent's utterance:‑

"that he would break the legs of anyone who dared to clean the place."

amounts to an "act subversive of discipline" and in contemplation of clause (h) of sub‑para (3) of Para.15 of the Standing Orders Ordinance, constitutes misconduct. Even the Tribunal did not hold otherwise, but after assigning the remarks to the Assistant Pharmacist which as already observed, are the result of misreading of his statement, the Tribunal took the view:‑

" This is believable that this may have furiated the appellant because the remarks means that someone else will be appointed in place of the appellant. The latter has denied the allegation but 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. N L R 1978 Lah. 7 is attracted to the case."

It is argued that the learned Tribunal misconstrued the law, in whittling down the magnitude of such a misconduct, which by itself, is enough to attract the penalty of dismissal from service.

18. In reply, on the basis of some observations made in the Supreme Court's leave refusing order in Punjab Road Transport Board v. Punjab Labour Appellate Tribunal 1973 S C M R 455, the learned counsel for the respondent vainly attempted to support to course of action adopted by the Tribunal. But in that case, the Enquiry Officer whose report was accepted by the Management took into consideration, an entirely extraneous matter in recommending the workman's dismissal from service. The High Court, therefore, set aside the dismissal order. For the aforesaid reason and also on the ground that the Enquiry Officer's report was not furnished to the workman, the Supreme Court declined to grant the leave for appeal. In our estimation, this authority has no application to the case in hand. Likewise, the judgment referred to in the Tribunal's order is distinguishable, because in that case the dismissal order was passed on the basis of these charges; each one of which was considered to be a misconduct but before the High Court, only one charge was found to be constituting misconduct.

19. We are not unaware that where in passing an order an irrelevant consideration is taken into consideration or out of a number of grounds, on which an order is founded, some of the grounds are found to be untenable, and it is not known that how far the Tribunal's mind is influenced by such irrelevant consideration or untenable ground, the entire order is rendered illegal and liable to be set aside. However, such a situation does not obtain in this case. All the grounds on which the respondent was proceeded against, individually constitute misconduct and furnish a basis for infliction of penalty of dismissal. The learned Tribunal, therefore, fell in error in not giving full impact to the misconduct which according to its own showing stood, proved against the respondent.

20. For the foregoing reasons, this writ petition is accepted and the impugned order declared to have been passed without lawful authority and of no legal effect. Consequently, the order of the Labour Court dismissing the respondent's grievance petition shall hold the field. The parties are left to bear their own costs.

A. A. /M‑250/L

Petition accepted.

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