1989 PLP 586 (PLC)

7. It would be seen that the enquiry was not held for remaining absent on 1‑4‑1985 on false pretext, but the enquiry was held for persisting in making false statement with regard to absence on 1-4-1985 and with regard to misconduct for making allegations against superior, Mr. Dobash.

8. Mr. Hassan Jafri, learned counsel for the appellant has submitted that order of termination was wrong as the appellant was not given second show‑cause notice and also was not supplied copy of the enquiry report. He has further submitted that the appellant has made certain allegations against Mr. Dobash to explain the charge against him and that it did not amount to misconduct. It has also been submitted that if at all it amounted to a misconduct, it was not a serious misconduct so as to warrant dismissal from service. It was also submitted that the reasons for absence on 1‑4‑1985 were not false.

9. Mr. Abdul Hafeez, the learned counsel for the respondents has relied upon the case of Hind Construction and Engineering Co. Ltd. v. Their Workmen, 1965 I. L C 652, where Supreme Court of India has observed that "it has been ruled that the award of punishment or misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequate of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.

10. In 1971 L L C 7, the Industrial Appellate Tribunal, West Pakistan, has observed that the practice of giving second show‑cause notice to Road Transport Corporation employees prevailing before the promulgation of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, formed part of conditions of employment and must be complied with and that the principle of natural justice required that the workman served with second show‑cause notice must be furnished with a copy of Enquiry Officer's report. "It may be pointed out that neither the service of second show‑cause notice is mandatory under Standing Orders Ordinance nor the supply of the report of the Enquiry Officer is mandatory. In the case of District Manager, Government Transport Service v. Hussain Bakhsh 1975 L L C 121, this Tribunal had held that failure to supply copy of Enquiry Officer's report and non‑service of second show‑cause notice was serious lacuna, not curable even by personal hearing by appellate authority after infliction of punishment.

11. In the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal 1975 P L C 818, a learned single Judge of Lahore High Court has observed that copy of Enquiry Officer's report must be supplied to the employee and issue of second show‑cause notice was also necessary to afford opportunity to the workman to explain adverse findings of the Enquiry Officer. Similar view was taken in the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore 1976 L L C

613. Therein the Supreme Court has held that it was necessary that the workman should be furnished with copy of enquiry report against him and should also be given an opportunity to show cause against order of dismissal and mere fact that workman had a personal audience with his employer was not enough.

12. In this case, there is no evidence to show that the issuance of second show‑cause notice or supply of copy of the enquiry report was a part of the terms and condition of service of the appellant. In this connection, Mr. Hafeez has relied upon the case of Dawood Cotton Mills v. Guftar Shah P L D 1981 S C 225, where their Lordships of the Supreme Court while interpreting Standing Order 15(4) of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 has held that the second show‑cause notice after completion of enquiry was not a requirement of rules of natural justice nor supply of report of Enquiry Officer was such a requirement. The requirement in such cases is "to give information of alleged misconduct and opportunity to explain circumstances alleged against workman and to defend himself by cross‑examining witnesses and examining himself or any other witnesses in defence." A reference was made m this case to the earlier decision of the Supreme Court in the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal and it was observed that as the report of Enquiry Officer contained extraneous matters which were not relatable to the charges levelled against workman in regard to which he had submitted his explanation and which greatly influenced the Enquiry Officer to recommend the dismissal of the workman and as the second show cause notice, which formed part of the conditions of the workers of the Road Transport Corporation was not given to the delinguent workman, his case has been prejudiced as he had no opportunity to rebut the allegations. It was in these circumstances that Supreme Court, while dismissing the petition for special leave to appeal, held that the workman should have been furnished with the copy of the enquiry report and also the second show‑cause notice as this was consistent with the principle of natural justice. It was further observed that this observation must be understood in the context of the peculiar facts of that case and does not lay down the broad principle that they form part of the rules of natural justice or for that matter to be spelt out from the provisions under consideration.

13. In the case of Ghulam Rasool Khan v. The District Manager Government Transport Service, 1970 P L C 356, the Industrial Appellate Tribunal, West Pakistan, had held that the term `willful insubordination' was wide enough to include misbehavior of workman, worker acting in a haughty and insulting manner towards his superior would be guilty of misconduct on account of willful insubordination.

14. In the case of Dr. Anklesaria Nursing Home v. Zafar Iqbal, 1982 P L C 553, this Tribunal had held that use of abusive language in hospital premises and that too in a room adjoining Surgeon's room, cannot but be considered subversive of discipline and such riotous and disorderly behaviour at an establishment or any act subversive of discipline constitutes misconduct entailing punishment of dismissal.

15. Reliance is also placed on the case of Abdul Rasheed Qureshi v. Industrial Court of West Pakistan, Lahore and Pakistan Tobacco Co. Ltd., Jhelum P L D 1967 S C

367. In that case, Propaganda Secretary of the Union had written a letter to the establishment stating therein that the Union's Propaganda Secretary had no hand in the strike of casual labour and domestic servants, but, on the other hand, it was the personnel manager who arranged the casual labour strike with the intention to make a public contact with a labour contractor. Their Lordships of the Supreme Court have held "that there was a direct attack on the probity of a superior Executive Officer of the company directly concerned in the management of the Labour force and a very grave accusation that this officer was himself engineering trouble among the workmen. There could be no question but that such conduct was calculated to be destructive of discipline "

16. In the case of Maqbool Hussain v. Presiding Officer, Punjab Labour Court 1977 S C M R 480, the petitioner had addressed a letter to the Finance Manager with copies to certain of officers. wherein serious allegations were made against the officers couched in insolent and insubordinate language. He was accordingly issued a charge‑sheet and after being given opportunity to be hears;. he was dismissed from service. The petition before the Labour Court was dismissed and his appeal was also dismissed. A writ petition filed by the petitioner was also dismissed and their Lordships of the Supreme Court found that it way not the case for interference.

17. In the case of the Inn, Airport, Karachi v. Mahmood Ali 1978 P L C 347 the Vice‑President of Union accompanied .an aggrieved worker to Personnel Officer of management in angry mood, resorting to rude and insulting behavior when asked to leave worker to be dealt with alone, and insisted upon his right tc accompany any aggrieved worker in his capacity as Vice‑President of Union. it was held by this Tribunal that the charges of misconduct under circumstance: were held rightly set up because such misbehavior amounted to willful insubordination constituting misconduct. dismissal on basis of such char a roves in impartial enquiry was held to be not exceptionable."

18. The allegations against Mr. Dobash were made by the appellant for the last time in his letter, dated 14‑5‑1985. Mr. Hafeez was asked to explain how the charge‑sheet, dated 27‑5‑1985, could be considered within time. Mr. Hafeez contended that under Standing Order 12(4) the duty of the employer was only inform the appellant or the employee about the alleged misconduct within on month of the misconduct and it was not necessary that the formal charge‑sheeted should also be framed within one month. He further submitted that vide letter dated 20‑4‑1985, which is `C‑6', the appellant was informed about his misconduct of making false and serious allegations against Mr. Dobash which amounted to wilfil insubordination and/or acts of subversive of discipline under Standing Order 15(3)(h) and/or 15(3)(j).

19. The charge of making serious allegations against superior officer is borne out from the documents produced by the parties. As held in the aforesaid cases of Abdul Rasheed, Maqbool Hussain and The Inn, Karachi Airport, such conduct amounted to misconduct which was calculated to be destructive of the, discipline and also to wilful insuborkiination of discipline and dismissal on sushi charges was upheld by the superior Courts, oven by Supreme Court.

20. With regard to the first charge of persistently making flase statement as to reason for leave on 1‑4‑1985, there is only oral evidence of the respondents witness rebutted by the oral evidence of the appellant himself. No one from European Asian Bank has been examined to show that the appellant had appeared before the said bank for interview on the said date. Certain letters have been produced in support of this allegation but those letters have not been proves as the writer of the same has not been examined. Even if any letter of interview was issued to the appellant or even if some person by that name had appeared; before the said bank, there is no evidence to show that the appellant had appeared for interview before the said bank. In view of evidence on record of my opinion, the first charge does not stand proved against the appellant.

21. It may be argued that when there was no sufficient evidence and when the first charge is not proved the n the fact that the appellant was charge-sheeted on the charge of obtaining leave on false pretext and time and again he was asked to explain the allegation would amount to harassment and consequently his conduct in making allegations against Mr. Dobash would be understanble and excuseable. The fact that the charge was not proved would not necessarily mean that the respondents did not have bona fide reasons to believe that the appellant had obtained leave on false pertext. The evidence of Mr. Dobash before the Enquiry Officer shows that he had received this information from the Europe;, Asian Bank people. Respondents have also produced one letter which is at page 165 of the record and proceedings of the trial Court. It is a letter from Europen Asian Bank addressed to the respondents informing them that Mr. Nunes had called on them on 1‑4‑1985 for interview. Though, this letter has not been properly proved, but, still the contentions of the respondents that had such an information, cannot be said to be unfounded. Their conduct in calling for explanation of the appellant, therefore, cannot be considered as mala fide or harassment and the appellant had no justification for that reason to lose temper and make serious allegations against his superiors. The nature of the business the bank requires that there should be trust and understanding between the employer and the employee and once the employee loses the confidence of the employer by making allegations against the superiors, such an employee cannot be forced upon the bank against their will specially when the charge against him stands proved from the documentary evidence.

22. For the aforesaid reason, I exonerate the appellant from the first charge but maintain the order of dismissal from service on the second charge misconduct and consequently, the appeal is dismissed. M.Y.H./1412/Lb. S Appeal dismisses!