P L D 1966 (W (PLP)

S. A. MAHMOOD, J.-Muhammad Masoom, respondent No. 2, who was working as a Junior Operator in the Pak-American Fertilizers Factory, was found asleep while on duty in Con version Plant in the third shift, on the night between the 16th and 17th of January 1964, at about 3-20 a.m. He was issued a show-cause notice on the 18th of January 1964, as to why disciplinary action should not be taken against him. He submitted his explanation, and as it was found to be unsatisfactory, a Board of Inquiry was constituted, which came to the conclusion that he was guilty of gross mis-conduct in the discharge of his duties. His record showed that he had been issued a warning for leaving the plant without the permission of the Engineer Incharge, and was also in the habit of coming late on duty. The Company, therefore, desired to dismiss him from service and referred his case to the Chairman of the Industrial Tribunal under section 30 of the Industrial Disputes Ordinance LVI of 1959, as he was an office bearer of the Employees Union, for obtaining permission for his dismissal. Though the Chairman found that the charge against the respondent of sleeping while on duty was proved in the inquiry, he held that the act of sleeping did not fall under Standing Order 13 (3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, because it was not mentioned among misconducts detailed therein, for which a workman could be dismissed by way of punishment. He also found that there were mitigating circumstances and the maximum punishment was not called for. The General Manager of Pak-American Fertilizers Limited, WPIDC, Sikandarabad (Daudkhel), District Mianwali, has moved this Court under Article 98 of the Constitution of Islamic Republic of Pakistan to have the order of the Chairman set aside, and to direct him to grant the necessary permission to dismiss respondent No. 2, as required by law. 2. The question, which falls for determination in this case is whether the act of respondent No. 2 in going to sleep, while on duty, amounts to an act of misconduct as defined in subsection (3) of section 13 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. The learned counsel for the petitioner contended before us that the act falls under clause (a) of subsection (3) of section 13, which provides as follows:- "(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." The learned counsel argues that the act of the respondent was a wilful disobedience and insubordination of the order, as it was of utmost importance that a person on duty shall not go to sleep, but keep a constant watch against defects and unusual noises in the running of the machinery, which if ignored, would cause serious damage to the machinery. 3. The learned counsel for the petitioner relied on The Queen v. Senior ((1899) 1 Q B 283) which defines "wilfully" as meaning that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it. He also referred us to Wheelver v. New Merton Board Mills Limited ((1933) 2 K B D 669) in which Talbot J. stated that though the words "wilful" and "intentional" are synonymous, "wilful" is more commonly used in modern speech of bad conduct or actions than of good, though it does not necessarily connote blame. The word "wilful" is defined in Black's Law Dictionary as act done with stubborn purpose, but not with malice, act done intentionally, knowingly and purposely as distinct from an act done carelessly, thoughtlessly, heedlessly or inadvertently. We consider that the word "wilful" has been used in clause (a) of subsection (3) in the above sense. 4. The Chairman did not consider the act of sleeping as misconduct as defined in section 13 (3) (a). To constitute misconduct it is necessary that the act should be a deliberate and intentional act (so that the mind of the person goes with it) of insubordination or disobedience of a lawful order of a superior. Every workman, especially one who has to watch the working of modern complicated machinery put on night duty knows that he shall not go to sleep, but if he goes to sleep, it may be a deliberate act or an unintentional act. It would be a deliberate act if he goes to sleep intentionally and purposely, but an involuntary act, if sleep engulfs him (as it comes by habit at night, as it may, in spite of his intention to the contrary. Since this possibility in there, to hold that it is a deliberate act; there should be some evidence or indication of deliberateness of the act, which is lacking in this case. It has also been pointed out by the Chairman, accepting the statement of the respondent, that the respondent had been given no rest from 10 a.m. to 3 p.m., and that he was placed on duty, despite his protest, that he was on weekly rest, and although he had informed the Management that he was not in a fit state to resume night duty. It was also mentioned in the order that the respondent had taken hourly readings up to 3 a.m. which indicated that he had kept awake up to 3 a.m. In these circumstances, the possibility of his being overpowered by sleep after 3 a.m. is enhanced and we cannot hold that the respondent was guilty of misconduct, if he was detected either dozing or asleep at 3-20 a.m. The order of the Chairman of the Industrial Tribunal is not thus open to any correction by us. 5. It was argued before us on behalf of the respondent that in view of section 12(4) of the Industrial Disputes Ordinance we have no power to interfere with the order of the Chairman of the Industrial Tribunal under Article 98 of the Constitution, but for reasons stated in The General Manager, Pak-American Fertilizers Limited, Iskandarbad, (Daudkhel) District Mianwali v. Industrial Court, Lahore and another (1966 P L C 422) we have no doubt that we have the power to interfere in case the necessary conditions for the exercise of the power exist. 6. For the above reasons, we dismiss this writ petition with costs. S. Q. Petition dismissed.