P L D 1972 Lahore 699 (PLP)

6. While dealing with the above contentions the learned Appellate Tribunal found that in view of the serious discrepancy existing in the position taken up by the District Manager in his order, wherein it was stated that he had heard the respondent before passing his order dated 5‑6‑68 and, the position taken up in the written statement filed by the Corporation wherein it was stated that although the respondent was called through personnel service, in order to give him final chance of hearing, he declined to appear before the District Manager for personal hearing, it was doubtful whether the respondent was indeed given a show cause notice before his dismissal. After recording the above finding the learned Appellate Tribunal went on to consider the question whether it was at all necessary to Issue a second show cause notice and came to the conclusion that it was a practice and usage of the Road Transport Corporation to Issue a second show‑cause notice before taking action against its employees and in so far as practices and usages were protected under the provisions of section 9 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the issuance of a second show‑cause notice formed part of the conditions of employment of workmen of the Road Transport Corporation and the failure to do so was a contravention of the provisions of section 9 ibid. The learned Appellate Tribunal further observed that there was no dispute that the respondent was not furnished with a copy of the Enquiry "Officer's report and found that in the absence of the Enquiry Officer's report, the respondent could not know as to why his defence was not accepted. In the above view of the matter he found that it was the duty of the employer to supply a copy of the Enquiry Officer's report to the employee and to issue him a second show‑cause notice to enable him to defend himself and to prosecute the appeal and revision, as the case may be. In coming to the above conclusion he placed reliance on certain observations made in the case of University of Dacca v. Zakir Ahmad (P L D 1965 SC 90). In the result the appeal of the petitioner‑Corporation was dismissed and the award of the Industrial Court dated 5‑2‑70 upheld vide order dated 22‑12‑70 passed by the Appellate Tribunal. To challenge the correctness of the last mentioned order and the award of the Industrial Tribunal dated 5‑2‑70 the petitioner‑Corporation has moved this Court, under Article 98 of the 1962‑Constitution.

7. Before me the learned counsel for the petitioner raised the following three contentions:‑ (a) that in so far as the petitioner‑Corporation did not contravene the provisions of section 37 of the industrial Disputes Ordinance, 1968, before ordering the dismissal of the respondent neither the Industrial Court nor the Appellate Tribunal had any jurisdiction to re‑instate respondent No. 3. (b) that the Industrial Disputes Ordinance, 1968 was repealed by the industrial Relations Ordinance. 1969. which came i‑to effect on 25‑10‑

69. Under section 67(2)(6) of the Ordinance, 1969, only those proceedings or actions were saved as were covered by the corresponding Provisions of the Ordinance of 1969 and only to the "extent of consistency therewith". As there was no provision in the Ordinance of 1969 corresponding to section 38 of the Ordinance of 1968. the application of respondent No. 3 must be deemed to have abated and as such neither the Industrial Court nor the Appellate Tribunal had any jurisdiction to adjudicate upon it. (c) that there was no violation of the provisions of clause (4) of the Standing Order 15 nor of the principles of natural justice. Hence the order of the District Manager was not liable to be interfered with.

8. The first contention cannot be accepted for two reasons; firstly, because this contention was not urged before the Industrial Court and the Appellate Tribunal. No doubt it 98 mentioned in the "written reply" to the application of the respondent No. 3 under section 38 of the Ordinance but the said objection has not been noticed in the order of the Industrial Court which raises a presumption that it was not urged before him. Similarly though this objection is mentioned in the Memorandum of Appeal the learned Appellate Tribunal has in its order formulated the three contentions which were actually argued before him and this contention was not one of them. Consequently it must be presumed that it was not pressed before the Appellate Tribunal and was abandoned. Secondly, the contention also does not appear to be well founded on merits. It has already been mentioned that the Enquiry Officer in his report had stated that the respondent was an office‑bearer of the Road Transport Corporation Union, Multan, and a number of disputes were pending adjudication with the Industrial Court and that therefore, it was necessary to obtain the permission of the Industrial Court before ordering his dismissal. It is an admitted position that the permission of the Industrial Court was not obtained before dismissing the respondent. Consequently there was a clear violation of section 30 of the Industrial Disputes Ordinance, 1959 (which is in pari materia of section 37 of the Industrial Disputes Ordinance, 1968). In these circumstances an application under section 38 of the Ordinance of 1968 would be perfectly competent. It is true that the petitioner disputed the claim of the respondent to be an office‑bearer of the Union in its written reply, but in the absence of any challenge to the said claim in the face of the Industrial Court and the Appellate Tribunal it is not possible to give effect to the objection that the respondents' application under section 38 was not main tainable.

9. Coming to the second contention raised before me by the petitioners, t find that this contention has never been raised at any stage of the case before me. It was neither raised in the written reply filed before the Industrial Court nor in the arguments before him nor in the grounds of Appeal before the Appellate Tribunal nor in the hearing which took place before him. It cannot therefore h permitted for the first time, in this Court.

10. The only contention that requires serious consideration, therefore, is the third contention, namely whether the Industrial Court and the Appellate Tribunal were justified in setting aside the order of dismissal passed against respondent No. 3 on the grounds which found favour with them.

11. At the point of time when the action against respondent No. 3 was initiated the conditions of employment of workmen in every industrial or commercial establishment were regulated by the provisions of the Standing Orders enumerated in the Schedule attached to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 vide section 3 of the Ordinance. Clause (4) of Standing Order 13 which dealt with the matter of dismissal which lays down that no order 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 . . . . and when circumstances appear to warrant it the manager or the employer may institute independent enquiries before dealing with charges against a workman". At the time of the dismissal of respondent No. 3 the above Standing Orders Ordinance of 1960 had been repealed and replaced by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. A perusal of the provision of this Ordinance reveals that section 3 of this Ordinance is in the same terms as section 3 of the 1960‑Ordinance and though the relevant provision in the Standing Orders which deals with the question of dismissals in the 1968‑Ordinance is Clause (4) of Standing Order

15. The terms thereof are almost identical with the terms of Clause (4) of Standing Order 13 of the Ordinance of 1960. The provisions of Clause (4) of Standing Order 15 of the 1968 Ordinance are as follows :‑ "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 employer shall be required in every case of dismissal and, when circumstances appear to warrant it, the employer may institute independent inquiries before dealing with charges against a workman."

12. The submission of the petitioner's learned counsel is that in the present case a proper charge‑sheet was served on respondent No. 3, to which he submitted an explanation and thereafter a regular enquiry was held into the allegations against him and he was afforded a full opportunity to defend himself. He was also heard in person by the District Manager, before the dismissal order was passed by him. It is submitted that Clause (4) of Standing Order 15 merely required that an employee be informed of the alleged misconduct and given "an opportunity to explain the circumstances alleged against him'. It is added that there is no requirement under it to hold an enquiry into; the allegations levelled against the employee, although an enquiry was in lack field. Furthermore, there is neither any express provision in the Standing Order, nor anything therein by implication necessitating the supply of a copy of the enquiry report to the employee concerned or for the issuance of a second show‑cause notice to him prior to his dismissal. It is further submitted that though it is true that the principles of natural justice are to be read in every enactment, but this is to be done in the absence of any exclusion, express or by necessary intend ment of the principles of natural justice by the Statute under consideration. Since express provision is made under Clause (4) of the Standing Order 15 regarding the procedure to be followed before dismissing an employee, it is not possible in these circum stances to challenge the propriety of the order of dismissal on the ground that though it satisfies the requirements Laid down in Clause (4) of Standing Order 15, it does not satisfy the principles of natural justice. It is also argued that the requirements regarding issuance of a second show‑cause notice and of supplying a copy of the enquiry report are Laid down only in cases of Government servants by virtue of certain constitutional provisions. These requirements cannot be read into the provisions of Clause 4 of Standing Order 15 in view of the language used, therein being different.

13. It is true that under the terms of Clause 4 of Standing Order 15 before a workman is dismissed he is merely required to be informed in writing of the alleged misconduct and given an opportunity to explain the circumstances alleged against him. The terms of this provision are doubtless different from the terms of the Constitutional provisions dealing with removal from office of persons in civil service. Under the last mentioned provisions a reasonable opportunity of showing cause again the action proposed to be taken "against the said servant is necessary" and not merely an opportunity to explain the circum stances alleged against him. However, in Clause (4) of Standing Order 15 it is further provided that when circumstances appeal to warrant it, the employer may institute independent enquiries before dealing with charges against workmen. In the present case after the petitioner was issued a charge‑sheet detailing the allegations against him and he had denied the said allegations and it was considered necessary to conduct "a face to far enquiry" into the matter. Thereafter an enquiry was held and the Enquiry Officer forwarded a copy of the enquiry report to the appointing and removing Authority namely the District Manager. The order passed by him on 5‑6‑68 shows that he took the following matters into consideration while ordering the dismissal of the respondent :‑ (a) the charge‑sheet dated 4‑1‑66 served on the respondent; (b) the reply of the latter; and (c) the enquiry report dated 31‑10‑66 holding the respondent guilty of the charges framed against him. Thus, the employer did not bas;, his decision merely on the charge‑sheet and the reply submitted to it, but also on the enquiry report submitted by the Enquiry Officer wherein the 8 respondent was held guilty. It is not denied that a copy of the said enquiry report was not supplied to the respondent. The respondent had no doubt appeared before the Enquiry Officer but he bad asserted before him that he was not guilty. He cross‑examined the P. Ws. in the light of his defence and also led evidence in his defence. In the absence of the Enquiry officer's report he could not possibly know as to why his defence had not been accepted. In case he was supplied a copy of the Enquiry report he may have been able to satisfy the employer that the findings recorded by the Enquiry Officer were erroneous or not justified. In these circumstances the supply .of the Enquiry Officer's report was not only necessary in order to satisfy the interests of natural justice but was essential in order to fulfil the requirements of clause (4) of Standing Order 15 itself. Under its terms a workman is assured of an opportunity to explain all the circumstances alleged against him. On account of the omission to supply a copy of the Enquiry report to the respondent he was deprived of the opportunity of explaining the adverse findings recorded therein. The omission in this respect therefore amounted to a contravention of clause (4) of Standing Order

15. As the employer in his wisdom had decided to institute an enquiry the adverse report of the enquiry officer was another circumstance existing against the respon dent (No. 3) and he was entitled under the terms of clause (4) of Standing Order 15 itself to be granted an opportunity to explain his position in regard to the said adverse report.

14. I am, therefore, of the opinion that in a case where the employer decides to hold an enquiry into the alleged mis conduct of the employee he cannot act upon the findings of the enquiry officer without giving am opportunity to the employee to explain his position with respect to the said findings and this cannot be done unless the employee is supplied with a copy of the enquiry report.

15. I may add that I should not to be understood to mean that the employer can proceed to take action merely after serving the workman with a charge‑sheet and obtaining a written reply from him. It is established law that if charges are levelled against a person which raise questions of fact and these are challenged by the person concerned it becomes the bounden duty of the authority levelling the charges to hold an enquiry into them after giving a fair opportunity to the person complained against to offer his defence, if he is so advised. See Rehan‑ud-Din v. Government of West Pakistan (P 1, D 1958 Lah. 486).

16. As regards the question of Issuance of a second show -cause notice the appellate Tribunal held that the issuance of a second show‑cause notice was necessary because it formed a part of the conditions of the workmen of the Road Transport Corporation. The reasoning given for the above finding is contained in the following extract occurring in his order: "Now the point for determination is as to whether a second show‑cause notice is necessary. In cases Muhammad Rafique v. Road Transport Corporation, Lahore 1968 P L C 382 and Zakir Khan v. District Manager, G. T. S., Hyderabad 1967 P L C 317 the order of dismissal was set aside because no second show‑cause notice had been given. Under section 9 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 usage and award have been protected. Section 9 reads as under: Nothing in this Ordinance shall affect any law, custom, usage, award or agreement in force immediately before the promulgation of this Ordinance in so far as such law, custom, usage, award or agreement ensure conditions of employment more favourable to workmen than those provided in the Stand ing Order. In the aforementioned cases the Road Transport Corporation did not challenge the award given by the Industrial Court that it was a practice and usage of the Road Transport Corporation to give a second show‑cause notice." This approach has been criticised by the learned counsel for the petitioner and it is submitted that the provisions of section 9 of the Standing Order Ordinance, 1968 have been misconstrued. In the view that I have taken of the matter it appears that issuance of a second show‑cause notice was necessary in the present case on account of the procedure that was followed by the employer. It has been seen that the employer, in the first instance, issued a charge‑sheet which may be described as the first show‑cause notice. The respondent submitted his reply thereto, controverting the allegations of misconduct made therein. As it was not possible to take final action in the matter without holding a face to face enquiry, an enquiry was accordingly held. The competent authority took into consideration the findings recorded therein while deciding whether the charges of misconduct against the employee was established. Since the findings of the enquiry officer were to be used against the respondent it was necessary to give him an opportunity of showing cause against the said findings, on the wording of clause (4) of Standing Order

15. On this view of the matter I am of the opinion that the issuance of a second show‑cause notice was necessary in the present case. I am, therefore, in agreement with the conclusion of the Appellate Tribunal that therefore she order of dismissal against the respondent could be passed it was necessary to serve him with a second show‑cause notice, though my reasons for reaching it are different from those which found favour with the Appellate Tribunal.).

17. In the end it may be mentioned that a preliminary objection was taken to the effect that Mr. Faiyaz Ali Hussain Secretary of the petitioner‑Corporation was not authorized under the Rules to file the present writ petition on behalf of the Road Transport Corporation and hence the writ petition was liable to be dismissed on this short ground, Since I have found that even on the merits there is no force in this petition It is not necessary to examine the question whether the writ petition was also liable to dismissal on the above technical ground.

18. The result is that this writ petition shall stand dismissed, but with no order as to costs. Petition dismissed.