1982 PLP 943 (PLC(CS))

Sirajul Haque Qureshi for Respondent. Date of hearing: 9th July, 1981. The appellant, who was employed as a driver in the Karachi Trans port Corporation, the respondent herein, was dismissed from service with effect from 8th July, 1980 on the charge of unauthorisedly handing over his bus to another driver on 3rd September, 1979 while the bus was plying on the PAF Mauripur route. The dismissal orders were based on the finding of the domestic enquiry wherein the aforesaid act of misconduct on the part of the appellant is said to, have been established. In the said enquiry, the appellant had taken the plea that he had suddenly fallen ill while driving the bus and, therefore, he had been compelled to hand over the bus to another driver who was available. In support of his contention, the appellant filed before the Enquiry Officer some medical certifi cates. However, the Enquiry Officer was not inclined to rely on the said certificates as in his opinion there was some contradiction between them. The appellant challenged the orders of his dismissal before the learned Third Labour Court which dismissed his grievance petition on the ground that admittedly the appellant had abandoned the bus and handed it over, without permission, to another driver and that there was no evidence that the appellant was so ill that he could not drive the bus. The appellant has now come up in appeal to this Tribunal against the said decision of the learned Labour Court.

2. I have heard Mr. Mazhar Ali Chauhan, the learned counsel for the appellant, and Mr. Sirajul Haque Qureshi, who appeard for the K. T. C.

3. The main contention of Mr. Mazhar Ali Chauhan was that the act of the appellant in delivering the charge of the bus to another driver, at best falls under item (a) of sub‑clause (ii) of clause (i) of Standing Order 15, which is punishable with fine and does not constitute mis conduct punishable under clauses (2) and (3) of Standing Order

15. In support of his contention, the learned counsel invited my attention to the charge‑sheet, dated 10th September, 1979, which was served upon the appellant. The said charge specifically recites that the custody of the bus was handed over unauthorisedly and unlawfully to another driver in contravention of the rules. The learned counsel contended that there is a clear distinction between an act or omission which is in disregard of the rules and orders falling under item (a) of sub‑clause (ii) of clause (i) of Standing Order 15 and wilful insubordination or disobedience of any lawful and reasonable order of a superior under sub‑clause (a) of clause (3) of Standing Order

15. This distinction has been emphasised by their Lordships of the Supreme Court in the case of Pakistan International Airline.,, Karachi v. Junior Labour Court No. IV, Karachi (PLD1978SC239). In that case an air‑hostess, who had left her place of duty and proceeded to Rawalpindi without taking prior permission, as required under the rules was dismissed from service. She challenged the orders of her dismissal before a Junior Labour Court which held that her act in leaving the place of her duty, without permission, was a misconduct or minor nature which did not merit dismissal, and accordingly the learned Junior Labour Court substituted the orders of dismissal by stoppage of one annual increment. On appeal to the learned Labour Court, it was held that act constituted mis conduct and her explanation for leaving the place of duty without per mission was rejected. The air‑hostess thereupon filed a constitutional petition in the High Court which held that her act fell within the ambit of Standing Order 15(i)(ii)(a), which is visited with minor punishment. In the appeal by the P.

1. A. to the Supreme Court it was contended on behalf of the P.

1. A. that the act of the air‑hostsess in leaving her place of dull without permission was covered by clauses (a) and (7) of subsec tion (3) of Standing Order

15. Repelling this contention, it was held by the Supreme Court as follows :‑ ‑ "Clause (a) refers to insubordination or disobedience of any lawful and reasonable order of a superior Eminently, therefore, the pre‑requisite for the application of this clause is the violation of a lawful and a reasonable order of a superior as distinguished from the violation of Rules or Orders issued pursuant to those Rules. No such order was pointed out by the learned counsel which could be said to have been violated nor was the third res pondent charged for insubordination or disobedience. This pro vision being penal has to be construed strictly and unless a case is clearly covered by it, cannot be pressed into service."

4. In the above case it was further held by the Supreme Court that the words "any act subversive of discipline" in Standing Order 15(3)(h) must be construed ejusdem generis with the proceeding words "riotous or disorderly behaviour" and,‑' therefore, the words "act subversive of discipline" should reflect an act which had criminality in it.

5. It was, however, contended by Mr. Sirajul Haque, the learned representative of the K. T. C., that the appellant had not raised the above contention before the learned Labour Court. This contention is without force. In paragraph 12 of the 6,mvance petition the appellant had clearly stated that the act with which he had been charged did not warrant the award of major penalty to him. In other words he was con tending that the said act, if established, would be punishable with the minor penalty of fine.

6. It was next contended by Mr. Sirajul Haque Qureshi that clause 13) of Standing Order 15 is not exhaustive but merely illustrative of the acts, of misconduct which can be punished with dismissal or other major ,Penalty. However, an act which is covered by Standing Order 15(i) cannot possibly fall under clause (3) of Standing Order 15 except where such an act is committed habitually as provided in clause (3) itself.

7. The upshot of the above discussion is that even if the defence of the appellant is not believed that it was by reason of his sudden illness that he was compelled to hand over the bus to another driver, his act which falls under Standing Order 15(1)(ii)(a) and not under Standing Order 15(3)(a). I would, accordingly, set aside the impugned decision of the learned Labour Court and direct the re‑instatement in service of the appellant. However, as the appellant had handed over the charge of the bus to another driver unlawfully and without permission I do not consider that he is entitled to any back benefits.