P L D 1980 Supreme Court 307 (PLP)

ANWARUL HAQ, C. J.-This appeal, by the leave of the Court, is directed against the judgment of the Lahore High Court dated the 7th of October, 1976, by which a constitutional petition filed by respondent Muhammad Aslam was accepted and the order of dismissal made against him by the appellant, namely, the Islamabad Club, was set aside. The respondent Muhammad Aslam was employed as a Bar Clerk in the Islamabad Club, when he was charge-sheeted for holding meetings of the Islamabad Club Labour Union within the Club premises during working hours and without intimation to the Secretary of the Club. As his explanation was found unsatisfactory, an inquiry was conducted against him by an officer appointed by the Administrator of the Club. The Inquiry Officer found the respondent guilty not only of the charge framed against him, but also of certain more serious acts of misconduct, namely, of inciting the workers to take the Management of the Club in their own hands, using obscene language against the Management and some Members of the Club, and raising slogans to burn the car of one of the Members of the Club and to kill him. The Inquiry Officer concluded that the respondent incited the workers to commit acts of sabotage, which they did and obstructed the smooth running of the Club: On the basis of these findings of the Inquiry Officer the Administrator of the Club dismissed the respondent on the 29th of July, 1975. The respondent thereupon filed a petition under section 25-A of the Industrial Relations Ordinance before the Junior Labour Court, but the same was dismissed on the 17th of September, 1975. The respondent's appeal was dismissed by the Punjab Labour Court on the 28th. of November, 1975. However, his writ petition was accepted by the High Court on the 7th of October, 1976, on the grounds that in terms of clause (4) of Standing Order No. 15 appended to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the respondent was not given notice of all the charges of misconduct found against him ,by the Inquiry Officer ; and that no notice was given to the respondent to show cause against the proposed punishment of dismissal in the light of the findings recorded by the Inquiry Officer. Leave to appeal was granted by this Court to examine the contention that the High Court was in error in thinking that Standing Order No. 15 was applicable to the respondent's case, as the provincial law, namely, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had ceased to be applicable to the centrally administered area of Islamabad on the dissolution of the Province of West Pakistan under President's Order No. 1 of 1970. Besides elaborating this submission, the learned counsel for the appellant submitted that the High Court was also in error in thinking that the dismissal of the respondent was based on material extraneous to the charge framed against him, and that, in any case, the High Court has itself held that the respondent had notice of at least one item of misconduct, namely, that he was holding Union meetings in the premises of the Club during working hours, without proper permission. Mr. Siddiqi further contended that there was no provision for the issuance of a second show-cause notice under clause (4) of Standing Order No. 15 ; and that the respondent had disentitled himself to discretionary relief in writ jurisdiction owing to his gross misconduct as an employee of the Islamabad Club. We notice that the first contention regarding the non-operation of the 1968 Ordinance to the Islamabad Capital area was not raised on behalf of the appellant at any stage during the proceedings before the Labour Courts, nor in the High Court, in which the Club was proceeded against ex pate. On this short ground alone the contention could be disposed of as not being maintainable on account of its being raised before us for the first Time. However, even otherwise it has no merit, for the detailed reasons given by us in Civil Appeal No. 120 of 1976 decided today. As a result, we consider that the learned Judge in the High Court was right in holding that the employees of the Islamabad Club were governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance of 1968, and the Standing Orders framed thereunder. The question now is whether the respondent had been properly dealt with in accordance with clause (4) of Standing Order No. 15, which requires that : "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 learned Judge in the High Court has found that there has been a violation of this provision in two respects in the present case: (a) That the findings given by the Inquiry Officer and taken into consideration by the competent authority for dismissing the respondent went far beyond the charge framed against the respondent, with the result that the respondent did not have a proper opportunity of defending himself in respect of the matters found against him by the ' Inquiry Officer ; and (b) That a second show-cause notice against the proposed order of dismissal was not given to the respondent, who could have shown that dismissal was not the proper punishment for the acts of misconduct alleged against him. The High Court seems to us to be right in observing that the employee was given notice of only one misconduct, namely, that of holding meetings during working hours in the Club premises without obtaining previou permission, yet the findings of the Inquiry Officer covered other matters also which disclosed far more serious acts of misconduct on the pact of the respondent, which could not be said to be included in the original charge framed against him. We think that it is clear that the findings recorded by Inquiry Officer on matters, which were not included in the original charge, must have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent. In the circumstances, it could not b said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no copy of the inquiry report was furnished to him and he was, therefore, not in a position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held,' as the High Court has done, that the requirements of reasonable opportunity, as embodied in clause (4) of Standing Order No. 15, were not fulfilled in this case. The contention that at least one item of misconduct found against the respondent by the Inquiry Officer was included in the charge-sheet and this could have sufficed for the .respondent, dismissal, is fallacious, as it is, possible that the Administrator may not have dismissed the respondent if, the only charge proved against him was that he held Union meetings during, working hours without proper permission From the order of dismissal recorded by the Administrator, it is manifest that he was influenced by the seriousness of the other matters relating to the conduct of the respondent: To this extent, therefore, the order of dismissal clearly stood vitiated, as it proceeded on matters extraneous to the charge framed against the respondent, who did not have a reasonable opportunity to defend himself in that behalf. As the order of the High Court is sustainable on this ground, we do not think it necessary to examine the further contention that clause (4) of Standing Order No. 15 does not, in terms, contemplate a second show-cause notice after the inquiry findings are available to the competent authority, and it has provisionally determined the quantum of punishment. In the present case, it was necessary that, irrespective of the question whether a second show-cause notice is necessary or not, the respondent should have been furnished with a copy of the inquiry report and given an opportunity to explain the matters, which had been found against him by the Inquiry Officer, as they bad not been earlier included in the charge-sheet. The High Court was, therefore, right in setting aside the order of dismissal passed against the respondent by the Islamabad Club. If the authorities of the Islamabad Club are still anxious to pursue the matter, it would clearly be open to them to resume the proceedings by furnishing a copy of the inquiry report to the respondent and giving him a reasonable opportunity to show cause against the proposed order of dismissal on the grounds found against the respondent by the Inquiry Officer. It was stated by the learned counsel for the appellant that with the introduction of prohibition, the post of Bar Clerk has since been abolished and, accordingly, it is not possible for the Club to restore the respondent to the post from which he was dismissed. As this is a new development, we consider that it would not be appropriate for us to express any considered opinion in that behalf. It is for the authorities of the Club to deal with the situation in accordance with the relevant provisions of the law. For the foregoing reasons, the present appeal fails and is hereby dismissed. In view, however, of the legal questions involved, the parties are left to bear their own costs. MUHAMMAD HAIESM, J.-I agree. NASIM HASAN SHAH, J. -I agree. S. A. H. Appeal dismissed.