1983 PLP 707 (PLC(CS))

Under the circumstances stated above, your retention in service is not advisable and we have decided to terminate your services. Accordingly your service is hereby terminated with immediate effect. You may collect your wages in lieu of notice period and other legal dues if any from the Accounts Branch on any working day during the office hours. (Sd.) Mir Javed Rahman Chief Executive (INCL)."

3. The learned Labour Court repelled the contention that the employer was entitled under section 4 of the said Act to terminate the services of a newspaper employee even on a ground of misconduct and has held that as the services of the respondent were terminated on allegations of serious misconduct, without holding any enquiries, the action of the management was not only in total disregard of the provisions of Standing Order 15, but amounted to condemning the respondent without giving him an opportunity of hearing.

4. I have heard Mr. M. Mazharuddin Siddiqui, the learned counsel for the appellants, and Mr. Shamsuddin Khalid Ahmad, who appeared for the respondent newspaper employee. It was strongly urged by Mr. Mazharuddin Siddiqui that section 4 of the said Act entitles the employer to terminate the services of an employee for any good cause and that such cause includes commission by the employee of one or more acts of misconduct falling within the‑purview of Standing Order

15. Elaborating his arguments in this behalf Mr. Siddiqui submitted that unlike clause (1) of Standing Order 12, which specifically prohibits the 'termination of services of a workman under that clause for an act of misconduct, section 4 of the said Act makes no such exclusion and should, therefore, be deemed to cover all cases wherein the employer was justified to termi nate the services of an employee, including cases involving the com mission of misconduct. The learned counsel further submitted that since an essential requirement of section 4 was the showing of good cause for terminating the services of an employee the good cause would clearly include the commission by the employee of acts of misconduct for what better cause can be shown than that the employee has been negligent in the performance of his duties or has committed some other types of miscon duct. The learned counsel conceded that section. 17 of the said Act has made the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, applicable to newspapers wherein ten or more persons are employed but submitted that the applica tion of the provisions of the aforesaid Ordinance is subject to the other provisions of the Act: He urged that if full scope is given to the provisions of section 4 of the said Act, the effect would be to make the provisions of clause‑5 of Standing Order 12 inapplicable to newspaper employees.

5. On .the other hand, Mr. Shamsuddin Khalid Ahmad, learned counsel for the employee, submitted that the principle embodied in the maxim "no person shall be condemned unheard" .(audi alteram partem) is deemed to be embodied as an integral part of every statute, unless there are express words in the statute making the principle inapplicable. The learned Advocate argued that the Legislature could not possibly have intended that a person's services should be terminated with a stigma, seriously grading his chances of employment elsewhere and practically posing the threat of economic strangulation without giving him a reason able opportunity of hearing and defending himself against the allegations made.

5. In order to appreciate the respective contentions of the two learned counsel it would be appropriate to reproduce section 4 of the said Act in extenso. It reads as follows :‑

4. Termination of employment. ‑‑ The services of a newspaper employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of such termination‑ (a) of one month, if the total period of continuous service of the newspaper employee with the newspaper establishment is not less than three months but less than two years ; (b) of two months, if the total period of such service is not less than two years but less than three years ; and (c) of three months, if the total period of such service is not less than three years ; Provided that, if the order of appointment of the newspaper employee provides notice of a longer period, notice shall be given in accord ance with the terms of such order ; Provided further that the services of a newspaper employee may be terminated at any time on payment of wages in lieu of the requisite notice." A bare perusal of the aforesaid section indicates that the essential requirements for terminating the services of a newspaper employee are, firstly' that the termination' must be for good cause shown, secondly that such and good cause must be shown through a notice, which should be in writing and, thirdly, that the period of notice would be dependent upon the length of service of the employee with the newspaper concerned. An option, however, is given to the employer to terminate the services of an employee with immediate effect on payment of wages for the period of the requisite notice. Although the section does not expressly state that its application is excluded in case of termination of services of an employee on allegations of misconduct, as in the case of termination of services under clause (1) of Standing Order 12, but the provisions of section 4 of the said Act must be read with the other provisions of the Act, particularly section 17, which makes the provisions of the Standing Orders including clause 5 of Standing Order 12 applicable to newspaper employees. No doubt the application of the Standing Orders is. made subject to the other provisions of the said Act but I am unable to find anything in the Act which would exclude or even restrict the application of clause 5 of Standing Order 12 to newspaper employees. I am inclined to agree with the submissions of Mr. Shamsuddin Khalid Ahmad that if the Legislature had intended that even cases of misconduct should fall within the purview of section 4 of the said Act, the intention would have been made manifest by the use of appropriate words in the section. In the absence of any express or even implied words suggesting such a intention on the part of the Legislature it must be presumed that the application of clause 5 of Standing Order 12 alongwith the other provi sions of the Standing Orders, not expressly excluded, is not affected, particularly as the Legislature is deemed to be aware of the established application of the principle of natural justice that no person shall be condemned unheard. Although the case is not directly on the point involved herein, I would like to refer to the observations of Lord Denning. M. R.; in the case of Pett v. Greyhound Racing Association Ltd. (1968 2 All E R 545). In that case an enquiry had to be held into the question whether a dog trained by a person holding a licence from the National Greyhound Racing Association Club was administered a drug The issue that fell to be determined in that case was whether the trainer was entitled to be represented in the enquiry by a counsel or solicitor. Rejecting the contention that the procedure of the enquiry was in the hands of the stewards and it was for them to determine whether they would hear lawyers or not, Lord Denning observed as follows :‑ "I cannot accept this contention. The plaintiff is here facing a serious charge. He is charged either with giving the dog drugs or with not exercising proper control over the dog so that someone else drugged it. If he is found guilty, he may be suspended or his licence may not be renewed. The charge concerns his reputation and his livelihood. On such an enquiry, I think that he is entitled not only to appear by himself but also to appoint an agent to act for him." The ground which weighed with Lord Denning in holding that in such an enquiry the person charged with misconduct or negligence should be entitled to be represented by counsel or soliciter was that it is not every man who has the ability to defend himself on his own and bring out the points in his favour or the weaknesses in the other side. If in an enquiry which was likely to affect the reputation or livelihood .of a person it was considered necessary to allow him to be defended by a soliciter or a counsel, it is all the more necessary that before a person's services are terminated on allegations of serious misconduct, he should be provided a reasonable opportunity of defending himself and clearing himself of such allegations. The application of this principle in Labour matters is well recongnised. I need only to refer in this behalf to the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 S C M R 304). In that case the services of the workman were terminated for the following reasons :‑ "Although we gave you a reasonable time to work as Incharge of the Accounts Section but unfortunately we could not get the satisfactory results." The workman took his case to the Labour Court which held that this was not a case of termination of services simpliciter but amounted to dismissal and hence the termination of services was in violation of the provisions of Standing Order

15. The company took the matter to the High Court in Constitutional Petition, but the High Court refused to interfere with the order of the Labour Court. The company thereupon went up in appeal to the Supreme Court which dismissed the appeal with the finding that the impugned order was an ,order of dismissal. A perusal of the order, dated 9‑31981, terminating the services of the respondent indicates that several serious allegations of negligence, errors and blunders in the performance of his duties were levelled against the respondent. The order thus did not constitute termination simpliciter of services of the respondent but in fact was an order of dismissal as held by the Supreme Court in the case of Dost Muhammad Cotton Mills Ltd.

7. For the reasons discussed by me above, I would endorse the view taken by the learned Labour Court that the order terminating the services of the respondent, which admittedly was passed without holding an enquiry was invalid and that the respondent must be re‑instated in service, as directed by the learned Labour Court. I am, however, unable to agree B with the further direction of the learned Labour Court refusing permis sion to the appellants to hold a proper enquiry, according to law, against the respondent. One may sympathies with the mental torture and agony said to have been suffered by the respondent during the period of his employment but should not deter the Court from adopting a just and a legal course. It may be pointed out that there has been no pronounce ment by the superior Courts on the scope of section 4 of the said Act, The mere fact that the appellant's interpretation of section 4 of the Act is unsound or has not been accepted by this Tribunal or the Labour Court would not justify the depriving of the appellant of an opportunity of holding a proper legal enquiry unless there was a legal bar or hurdle to the holding of such enquiry. No such .legal bar or hurdle has been pointed out to me. On the other hand, the mere failure to follow the proper legal procedure in terminating the services of an employee would not wash away any misconduct committed by the employee. I would, accordingly following the. decision of their Lordships of the Supreme Court in the case of Islamabad Club v. Punjab Labour Court No. 2 (P L D 1980 S C 307) give an opportunity to the appellants, if they are still anxious to pursue the matter against the respondent, to take proceedings against him in accord ance with law, The award of back benefits would depend upon the result C of such enquiry. If no enquiry or proceedings are held within period of one month from the date of this order, it should be presumed that the appellants have declined to pursue the matter further against the respondent and in such case the respondent would be entitled to the payment of full back benefits, as has been ordered by the learned Labour Court. Order accordingly.