P L D 1966 (W (PLP)

S. A. MAHMOOD, J.-On the 21st of December 1964, Husain Masih, respondent No. 2, who is a Turbine Attendant in the Pak -American Fertilizers Factory, Sikandarabad, was found smoking a cigarette while on duty in the power house in the third shift at 3-50 a.m. A show-cause notice was issued to him to explain why disciplinary action be not taken against him. A Board of Inquiry constituted to enquire into the act of the respondent found that he was guilty of gross misconduct and in view of his previous record that in 1959 he removed a fan belonging to the factory without any authority and that he refused an order of his superior, for which warning was issued to him on the 23rd of September 1961, he Company proposed to dismiss him from service. His case was, therefore, referred to the Chairman of the Industrial Tribunal under section 30 of the Industrial Disputes Ordinance LVI of 1959, by the General Manager for permission to dismiss him, since he was an office-bearer of the Employees Union. The Chairman came to the conclusion that the act of smoking cigarettes while on duty in the power house at 3-50 a.m. was proved but in his view the act was not a misconduct as defined in subsection (3) of section 13 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, and, therefore, the punishment of dismissal could not be imposed on the respondent, though any other punishment permissible under the rules could be inflicted on him. This order of the Tribunal dated the 21st of December 1964, is sought to be set aside by this writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan praying for a direction to grant the necessary permission -to the Company to dismiss respondent No. 2 under the law. 2. Subsection (3) of section 13 of the Ordinance, on which the learned counsel for the petitioner relies, reads 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." We find that disregard or disobedience of rules or orders is an act and omission under clause (ii) (U) of subsection (I) of section 13, for which a fine may be imposed up to half an anna in the rupee of wages in a month. Therefore, wilful insubordination and disobedience is a more serious act of insubordination and disobedience. Besides, it must be a disobedience and insub ordination of a lawful and reasonable order of a superior. In this case, the petitioner was found to be smoking a cigarette and this is stated to be disobedience of directions put up on boards that "smoking is strictly prohibited". There is however no evidence that this was a formal order of a superior or that any such order, had formally been made. For this reason alone interference is not called for with the order of the Chairman of the Industrial Tribunal. 3. The learned counsel for the petitioner argued that the word "wilful" is equivant to intentional and relied on Wheeler v. New Merton Board Mills, Limited ((1933) 2 K B D 669). He also relied on The Queen v. Senior ((1899) 1 Q B 283) in which Lord Russell, C. J. defined "wilfully" as meaning an act which 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. 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. It is in this sense that the word "wilful" appears to have been used in clause (a) of subsection (3) of section 13 of the Ordinance. 4. In the present case, the petitioner was found smoking in the power house. The case of the Company is that as gas burns in the Turbine, there is likelihood of its escaping, so that the act of smoking is a serious hazard and the act of the respondent was so dangerous that the whole factory could have been blown up if the escaping gas had been ignited by the cigarette. We have no doubt that there were notices posted in the premises prohibiting the indulgence in smoking and we have equally no doubt that the act of smoking is a deliberate and intentional act, but while the act of lighting a match stick and smoking was fraught with serious danger to the factory and the machinery installed therein, the act was equally dangerous to the safety and life of the person who indulged in it, and it is difficult to assume that it was done deliberately and not carelessly and thoughtlessly. It is, a question of fact in each case whether the act of smoking, which is" accompanied by so serious a hazard, is a deliberate, and intentional act or not. In the present case, the Chairman did not come to this conclusion, and while we cannot hold that in no circumstances would the smoking of a cigarette amount to violation of clause (a) of subsection (3) of section 13 of the Ordinance, and there may be cases in which there may be such violation, (for if this be not so, the law requires to be amended), we are not inclined to interfere with the order of the Chairman in this case, for he could have come to the conclusion that it was not a wilful act as defined above. 5. It was argued before us by the learned counsel for the respondent No. 2 that we have no jurisdiction to interfere with the order of the Chairman in view of section 12 (4) of the Industrial Disputes Ordinance which provides as follows: "Any decision of the Court other than an award shall be final and shall not be questioned in any, manner by or before any judicial or other authority." This provision is of sub-constitutional nature and cannot override Article 98 of the Constitution. The learned Chief Justice of the o Supreme Court of Pakistan in Mian Jamal Shah v. The Member, Election Commission and others (PLD 1966 SC I), at p. 26 has observed as follows: "It must be remembered that a requirement of finality of determination contained in the Constitution is to be placed on a wholly different and certainly at a much higher level than the provisions in sub-constitutional statutes giving finality to the determination of Tribunals constituted thereunder. In the latter case, a High Court acting under Article 98 could indeed invoke its superior authority to impose upon such statutory Tribunal, despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of that jurisdiction and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision barring such interference, the High Courts acting under Article 98 would, I conceive, have the authority to interpret the relevant statutes, in respect of the limitations upon jurisdiction, the obligations to' exercise the jurisdiction, and the scope of the authority conferred by such statute." In Mr. A. K. Fazlul Quader Chaudhury v. Syed Shah Nawaz and others (P L D 1966 S C 105), at page 113 it was observed:- "Indeed, the High Court's jurisdiction is eminently invokable under Article 98 to correct any error of law or any transgression of jurisdiction by any person or authority in circumstances akin to those prevailing in the instant case so long as the order to be passed is not repugnant to any other provision of the Constitution." It was held in this case that the ouster of the jurisdiction in Article 111 was not attracted to the case. In Nagina Silk Mill, Lyallpur v. The Income-tax Officer, `A' Ward, Lyallpur and another (P L D 1963 S C 322) it was held that:- "Notwithstanding section 67, Income-tax Act, 1922, which bars civil suit to set aside or modify an assessment made under the Act, the extraordinary writ jurisdiction of the High Court can be invoked in challenging an income-tax assessment on the basis that the officer concerned lacked jurisdiction to pass the impugned order. The writ jurisdiction was conferred on the High Court by a constitutional provision and even if there be a conflict between such a provision and another statute, the constitutional provision must prevail." Two Supreme Court cases, Zafar-ul-Ahsan v. The Republic of Pakistan (P L D 1960 S C 113) and Muhammad Khan v. The Border Allotment Committee, through Major Muhammad Akram and others (P L D 1965 S C 623) were relied upon by the learned counsel for the respondent No. 2. In the first case it was held that: "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary' to oust jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the staiute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omission or irregularity alleged will be a matter for that authority, and not for a Court of law." This is a proposition relating to orders passed within the competence of the authority within the four corners of the statute by an authority duly constituted and against a person who is subject to its jurisdiction. In such a case there is hardly case for exercise of powers under section 98 of the Constitution by this Court in case of an irregularity or omission in following the statutory procedure, but under the same ordinance, namely, Public Conduct (Scrutiny) Ordinance, this Court interfered in the case of M. B. Nishat v. Sardar Muhammad Zaman Khan (Writ Petition No. 80 of 1960) decided on the 2nd of June 1960, and the order was upheld by the Supreme Court in Sardar Muhammad Zaman Khan v. M. B. Nishat and others (P L D 1962 S C 22). The second case relates to the West Pakistan Border Area Regulation, which was blessed by the Constitution itself and as powers under Article 98 are subject to the Constitution, the jurisdiction of this Court to interfere with the orders of the Border Allotment Committee was held to be barred. This is not the case here. We, therefore, hold that we have jurisdiction to interfere with the orders of a Chairman, if the necessary conditions for interference under Article 98 of the Constitution exist. 6. For the reasons given above, we dismiss this writ petition, but make no order as to costs. S. Q. Petition dismissed.