1976 PLP 619 (PLC)

"The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his service or removal, retrenchment, discharge or dismissal he may bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordi nance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." Underlining* (is mine)

6. Mr. Yaqoob relied on the underlined* portion of Standing order 12(3) of the Standing Orders Ordinance in support of his contention that the only remedy open to a workman in case his services were terminated, and he had any grievance, was to follow the procedure under section 25-A of the Ordinance. There is not much force in this contention.

7. On 2nd November, 1972, when the appellant made his application before the Labour Court, he had a choice under the Ordinance, either to follow the cumbersome procedure prescribed under section 25-A of the Ordinance or to go straight to the labour Court for redress of his grievance under section 34 of the Ordinance. In either case, whether he made an application under section 25-A of the Ordinance or under section 34 of the Ordinance, his grievance had to be in respect of any right guaranteed to him under any law. He could get redress under either of the two provisions of law only if he succeeded in establishing that he had any right guaranteed or secured to him under any law or any award or settlement. In the present case, the appellant's services were terminated on 14th October 1972, and without following the cumbersome procedure of section 25-A of the Ordinance, he at once came to the Labour Court for redress of his grievance on 2nd November 1972. The mere fact that the Standing Orders Ordinance, which is an independent Ordinance, gives a choice to a workman to apply under section 25-A of the Ordinance, does not mean that his right to apply under section 34 of the Ordinance is taken away. I would interpret the word "may" occurring in clause (3) of Standing Order 12 of the Standing Orders Ordinance as obligatory and not mandatory. It was open to him to make an application under section 25-A of the Ordinance. No litigant, much less a workman, who is not supposed to be very conversant with the intricacies of law, is pressed to pursue his remedy, in the absence of anything specific, under section 34 of the Ordinance. The Legislature up to 10th November 1972, when section 34 of the Ordinance was amended by omitting the word "workman" gave an option to the f workman to apply under either of the sections of the Ordinance. The Legislature expressed its intention only on 10th November 1972, that a workman should not have recourse to section 34 of the Ordinance in respect of any grievance relating to any right guaranteed to him under any law or any award or settlement by omitting the word "workman" from section 34 of the Ordinance. The workman, in short, from 10th November 1972, when the amendment was published in the Gazette, Extraordinary, could not make an application under section 34 of the Ordinance. A legitimate inference can be drawn that the Legislature knew that so long as section 34 of the Ordinance was not amended the option was open to a workman to apply either under section 25-A or section 34 of the Ordinance. Moreover, a workman by applying under section 34 of the Ordinance cannot be said to have gained any advantage over its employer. The best that can be said is that if the workman bad followed the procedure prescribed under section 25-A of the Ordinance, the employer may have redressed his grievance. If that is so, the employer could show his magnanimity by accepting his demand when ho made the application before the Labour Court.

8. The employer cannot be allowed to defeat the claim of workman on a technical point, specially when no prejudice is caused to him. If there are two interpretations possible, the one, which favours the workman, should be accepted. The interpretation advanced by the learned Represent ative for the respondent, if accepted, will result in dismissal of hundreds of applications that are trending for disposal in the Labour Courts. This would lead only to industrial unrest. I would hold that it was optional for the workman to apply either under section 25-A or section 34 of the Ordinance. The application by the appellant under section 34 of the Ordinance is maintainable.

9. The important point for consideration in this appeal is as to whether on the show-cause notice any case for misconduct was made out or not. The show-cause notice is on the record of the Labour Court. It is dated 26th September 1972 and runs as under "It has been reported that on 25-9-1972 at 7 p.m. you were asked by our Mr. Muhammad Sued, Godown Incharge to deliver stocks of cigarettes to Nazimabad Depot but you refused to do so despite the stocks were loaded in your van. You stated that it was 5 p.m. and as such you will not take stocks to Nazimabad Depot as you were not interested in overtime, although you were supposed to be on duty upto 5-30 p.m. You disobeyed the order and went away to the Garrage with the stocks of cigarettes, lying in your van. You are, therefore, hereby asked to explain, in writing within two days from the receipt of this notice, as to why disciplinary action should not be taken against you."

10. Under Standing Order 15(3) of the Standing Orders Ordinance acts and omissions which would amount to misconduct are specified. The relevant provision is Standing Order 15 (3) (a) and it reads as under : "(3) The following acts and omissions shall be treated as misconduct (a) wilful insubordination or disobedience whether alone or in combina tion with others, to any lawful and reasonable order of a superior;" 11.. Insubordination or disobedience of an order, in order to amount to misconduct, must fulfil the following ingredients (1) It must be lawful ; and (2) It must be reasonable.

12. The best that can be said in favour of tree Management is that the refusal was wilful. Wilful would mean an act done intentional knowingly and purposely as distinct from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The order may also be said lawful, in as much as the employer can ask a workman to do overtime work, but the question is :Can the order in the circumstances mentioned in the show-cause notice itself be said to be reasonable ?

13. Mr. Yaqoob, the learned Representative for the respondent, contended that the reasonableness of the order cannot be looked into at the appellate stage. In this connection, he contended that the question of reasonableness of the order was neither raised before the Labour Court nor in the memo of appeal before the Tribunal. A reference to the application before the learned Labour Court would show that though the question of reasonableness has not been taken in so many words, but it has been impliedly taken as it was contended that the charge-sheet did not amount to misconduct under Standing Order 15 (3) (a) and (h) of the Standing Orders Ordinance. The relevant portion reads as under : "The Opponents, by issuing a show-cause notice to the applicant and in alleging that the charges levelled against him constitute misconduct under Standing Order 15 (3) (a) and (h) have misread and/or mis interpreted the law for ulterior motives. The applicant is not guilty of the offence charged with and his consequential dismissal is a nullity in law."

14. It is true the appellant had not taken the point specifically that the order being unreasonable did not amount to misconduct. It is well-settled law that an appellant can be allowed to take a point, which is a mixed question of fact, and law even in second appeal if no further evidence is required to be adduced. This is a first appeal. An appellant is entitled to take a point, which he can urge from the material already on the record of the Court. In the present case, the contention of Mr. Ajaz Rizvi, the learned Representative for the appellant is that on the facts mentioned in the show-cause notice itself no case of misconduct is made out.

15. It is a question of inference to be gathered from the circumstances and facts of each case as to whether an order is reasonable or otherwise. The admitted facts are that the working hours of the appellant-Driver were from 8.30 a.m. to 5-30 p.m. Mr. Yaqoob, the learned Representative for the respondent, admitted at the Bar that the van was loaded on M. A. Jinnah Road. It was to go from Jinnah Road to Nazimabad. The learned Representative for the respondent referred to the Enquiry Report to establish that the order was reasonable, inasmuch as, if the Driver could take the van from Jinnah Road to Nazimabad, almost within his duty hours, with a difference of few minutes on this side or that side. In this connection, the summary of the Enquiry Officer's Report, which is based on the evidence that was produced before him, may be reproduced as under : "Furthermore, from the statement of the witnesses it is clear that Mr. Mahmood Hussain came back to the godown at about 4-30 p.m. on 25th September 1972. His van was loaded by 4-40 p.m. At about 4-50 p.m., when the van was still not taken out Mr. Mohammad Saeed, Godown Incharge called him and asked him as to why he had not taken the van out. Mr. Mahmood Hussain took the plea that he might be delayed beyond duty hours. Mr. Saeed tried to convince Mr. Mahmood Hussain that he was waiting and doing nothing since 4-30 p m. He should take the van with the stocks to Nazimabad Depot and it would take about 20 minutes to reach there. Another 5 minutes might be required for unloading the van and 20 to 15 minutes might be required to go to the garrage to park the van."

16. My impression from the conclusion of the Enquiry Officer reproduced above, is that there was a deliberate attempt on the part of the Management to justify that the appellant could take the van to Nazimabad and be back within his duty hours. The evidence led by the Management before the Enquiry Officer is in conflict with the show-cause notice. In the show-cause notice it is definitely mentioned that Mr. Mahmood Hussain, Godown Incharge, asked the appellant at 5 p.m. to deliver stocks of cigarettes to Nazimabad Depot. I am of the view that there was a deliberate attempt on the part of the witnesses of the Management to set back the time, though only by few minutes, to prove that the appellant could perform his duty by 5.30 p.m. I strongly disapprove of such an attempt on the part of the Management to justify the charge. On the other hand, it would appear from the address of the respondent given in the memo of appeal and before the Labour Court that their office is on M. A. Jinnah Road, Opposite Memon Masjid. The admitted position is that the cigarettes were loaded on Jinnah Road. The part of Jinnah-Road, where the office of the respondent-Company is situated, is a busy locality. Five in the evening is also peak hour for Jinnah Road. A driver taking a van on Jinnah Road has to be cautious, He cannot drive at a speed which he may like. From Jinnah Road to Nazimabad at 5 in the evening it is not easy to go by a van or by car. The road is car crowded. It will certainly take over half an hour, to reach Nazimabad. It is easy to say that it will take only 5 minutes for unloading. I think it might take more than 5 minutes even for the porters to be called to unload the van. However, even if the unloading was expedited it could not take less than 15 to 20 minutes. Another half an hour to come back to Jinnah Road for parking the van. Mr. Yaqoob, the learned Representative for the respondent, did not show me any provision of law under which a workman could be compelled against his wishes to perform overtime duty. The best that can be said is that an employee is expected to readily obey the order of his employer in case of emergency, even if he did not like to perform overtime duty. In the present case, the appellant was conscious of the fact that had there been an emergency to take the load of cigarettes to Nazimabad, he would have done so. This is clear from his plea in the application before the Labour Court. The appellant stated as under : "Consequently the refusal to do overtime in non emergent circumstances does not amount to any misconduct."

17. There is not a word in the statement of Mr. Abdullah, one of the Directors of the respondent-Company, to disclose that there was any emergency to carry the cartons to Nazimabad. In my opinion, if a workman did not feel like doing overtime duty, he could not be compelled to do it, unless it was a case of emergency. The Management is not expected to act as an autocrat in seeing that all its orders, whether reasonable o unreasonable, are carried out. The wishes of the workman, who had been working from 8-30 a.m. and driving a van till five in the evening, when E he might be feeling too tired to perform overtime duty, should not have been lightly ignored, there being no emergency. I would hold that the order of the Godown Incharge to carry the van from Head Office to Nazimabad at five in the evening was unreasonable. The award of the a. learned Labour Court dated 31st January, 1973, is set aside. The appellant is re-instated with full back benefits. The respondent-Company also to pay Rs. 100 (Rupees one hundred only) as costs to Mr. Aijaz Rizvi, the learned Representative for the appellant, within a week,