P L D 1977 Karachi 474 (PLP)

Z. A. CHANNA. J.

This Constitutional petition by an ex‑workman of respondent No. 1, the Pakistan Cable Ltd., is directed against a decision delivered by the Sind Labour Appellate Tribunal, holding that the petitioner's dismissal by respondent No. 1 was in contravention of the provisions of sub‑clause (4) of Standing Order 13, but notwithstanding this finding, dismissed the petitioner's prayer for re‑instatement and instead awarded him compensation of Rs. 1.000 only.

2. The facts which have given rise to this petition, briefly stated, are that the petitioner was employed as a Turner by respondent No.

1. He was stopped on 3rd May 1966, at about 12.55 p. m. by the gateman of respondent No. 1, while the petitioner was coming out of the factory of respondent No. 1 on a cycle, as the petitioner bad in his possession a bottle containing oil which is claimed to be the property of respondent No.

1. The petitioner was produced before the Incharge Security and later before the personnel officer to whom he is alleged to have admitted to have wrongly taken out the bottle of oil which belonged to respondent No.

1. Subsequently, the charge‑sheet dated 23rd April 1966, was served upon the petitioner and the response of the petitioner was to submit his resignation, which however, was not accepted. A domestic enquiry was thereafter held in which four witnesses were examined and at the t rid of the enquiry the petitioner is alleged to have stated to the enquiry officer that he did not wish to produce any defence but his only request was that his case should be decided as early as possible and his accounts be cleared. As a result of the enquiry, the petitioner was dismissed from the service of respondent No. 1 by an order dated 4th May 1966 passed by the acting General Manager of respondent No.

1. The petitioner thereupon filed an application under section 31 of the Industrial Disputes Ordinance, 1959, which was dismissed on the ground that there was no industrial dispute pending between the petitioner and respondent No.

1. This decision was given during the pendency of a dispute between the workman of respondent No. 1 and respondent‑Company and against the award given in the said dispute, an appeal was taken to the High Court by the petitioner who was held by the Industrial Court not to be 'concerned" with the said dispute which related to the dismissal of another workman. It was held by the High Court, vide decision reported in P I. D 1973 Kar. 216, that the petitioner herein was concerned in the industrial dispute relating to the dismissal of the otter workman. Despite the decision of the High Court, the Labour Court dismissed the application of the petitioner under section 31 of the Industrial Disputes Ordinance, 1959. On Appeal, an Appellate Tribunal held that the order of the dismissal of the petitioner was not proper inasmuch as he had not been given an opportunity, before the enquiry was held, to explain the charges against him. It however refused to order the re‑instatement of the petitioner and instead awarded him a sum of Rs. 1,000 as compensation. It is this order of the Appellate Tribunal which has been impugned in this Constitution petition.

3. Mr. Mumtazuddin, the learned counsel for the petitioner, has assailed the impugned decision of the Sind Labour Appellate Tribunal on the main ground that since it held that the ‑order of dismissal of the petitioner by respondent No. 1, was in violation of the mandatory provisions of law, in that the petitioner was not given an opportunity to explain the charges levelled against him, the learned Tribunal should have held the order of dismissal to be illegal and ordered the re‑instatement of the petitioner. The learned counsel for the petitioner, additionally submitted that the proceed ings taken by respondent No. 1 against the petitioner are vitiated, and the provisions of clause (4) of Standing Order 15 have been further violated in that‑

(a) no copy of the enquiry report, was furnished to the petitioner; (b) the enquiry was not held by an independent person I and (c) the approval of the employer was not obtained for the dismissal of the petitioner. In order to appreciate the submissions made by the learned counsel for the petitioner, it is necessary to refer to clause (4) o Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1969, as in force at the relevant time. The said clause reads as follows;‑

(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the Manager of the establishment or where there is no manager, of the employer, is required in every case of dismissal and, when circumstances appear to warrant it the manager or the employer may institute independent enquiries before dealing with charges against a workman."

5. A bare perusal of the above clause makes it clear that after a work man, against whom an inquiry is to be held, is informed in writing of the alleged charges of misconduct against him, he is to be given an opportunity of explaining the circumstances alleged against him, before the inquiry is hold against him, which inquiry must be by an independent person in the instant case, undoubtedly a charge sheet was served upon the petitioner. Although the charge‑sheet does not specifically state that the petitioner should explain the allegations alleged against him in the charge‑sheet, it is not disputed that the inquiry against the petitioner was held about a week after the charge‑sheet was served upon the petitioner. During this period it was open to the petitioner to make say representation that he considered fit against the charge‑sheet. The petitioner however, did not choose to make any representation or reply to the charge‑sheet but submitted his resignation, which was rejected in view of the grave allegations of theft which were levelled against him in the charge sheet. The resignation application of the peti tioner may thus be considered as a sort of reply of the petitioner to the charge aheet. In the circumstances, we consider that a reasonable opportunity was given to the petitioner to submit his explanation regarding his alleged miscon duct and there was no substantial violation of the mandatory provisions of clause (4) of Standing Order

15. The said clause nowhere required that the workman who is to be proceeded against must be informed that he has a right of making a representation. The law only requires that the offending workman must be given a reasonable opportunity of explaining his alleged misconduct. As already stated, we are of the opinion, that in the instant case, such an opportunity was given. The fact that the petitioner was anxious that either his resignation be accepted or the inquiry against him be speedily concluded is supported by his statement before the inquiry officer that the inquiry be speedily decided and his accounts be cleared.

6. The submission of Mr. Mumtazuddin that the approval of the employer was not obtained for the dismissal of the petitioner is equally devoid of force. It has been categorically stated in the counter‑affidavit filed by the Personnel Manager of respondent No. 1, that the petitioner was dismissed under the orders of the acting General Manager of respondent No. 1, who had examined the inquiry proceedings against the petitioner and satisfied himself that the facts alleged against the petitioner stood established. This has not been controverted.

7. The learned counsel for the petitioner submitted that since the requirement of the law is that the inquiry against an offending workman must be held by an independent person, it envisages the holding of an inquiry by a person not connected with the employer's organization and who further is not connected in any way with the employer. In support of this submission the learned counsel relied upon the decision reported as Chairman, WPADA v. Labour Union, WAPDA (P L D 1967 Lab. 1286). We find ourselves unable to agree with the proposition of law enunciated by the learned counsel. The case cited by him also does not support his contention. All that the law requires is that the inquiry must be held by an independent person that is a person, who is not biased or prejudiced against the workman concerned. In the case relied upon by the learned counsel for the, petitioner the inquiry was held by the Works Manager of WAPDA who had directed bias against the workman against whom he had held an inquiry. It was therefore, held that he was not an independent, impartial and un biased officer, not himself involved in the case, and therefore, the inquiry held by him infringed the principle of natural justice that no one be a judge in his own cause. In the instant case, there is no allegation that the inquiry officer, who was the Works Personnel Officer of respondent No. 1, was in any way biased against the petitioner or prejudiced against him, No allega tion whatsoever was submitted by the petitioner against him throughout the proceedings. The mere fact that he was an employee of respondent No. 1, does not make him a non‑independent or non‑impartial person.

8. The learned counsel fur the petitioner also submitted that clause (4) of Standing Order 15 required the furnishing of a copy of the inquiry officer's report, so that the workman concerned may have a reasonable opportunity for his defence In support of his submission he relied upon the decision reported as Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal (P L D 1972 Lab. 699). In that case it was held that where the employer holds an inquiry into the alleged misconduct of the employee, he cannot act upon the findings of the inquiry officer without giving an opportunity to the employee to explain his position with respect to the said findings and this cannot be done unless is supplied with the copy of the inquiry report. It may, however, be pointed out that in the reported case not only the work man concerned had cross‑examined the witnesses, but had asserted before the inquiry officer that he was not guilty of the charges against him and had also led defence. In the instant case, as already stated, the petitioner had not only submitted his resignation and had admitted taking out the bottle) of oil from the factory but had further submitted before the inquiry officer that the proceedings against him should be disposed of quickly and he should be paid his dues. In the circumstances, the non‑supply of the copy of the inquiry officer's report to the petitioner cannot be considered to be an in fringement of the provisions of clause (4) of Standing Order 15, because it was the petitioner himself who was insisting that his case should be disposed of quickly and did not desire a copy of the inquiry officer's report. He cannot now complain for not being supplied with such a copy.

9. For the reasons discussed by us above, we are of the opinion, that there is no merit in this petition and we would accordingly dismiss the same, but in the circumstances of the case we would make no order as to costs. S. Q. Petition dismissed.