1984 PLP 1623 (PLC)

Mahmood A. Ghani for Respondents. Date of hearing: 13th December, 1983. This appeal is directed against the order, dated 26th April, 1983, passed by the Sind Labour Court No. V at Karachi, dismissing the application of the appellant filed under section 25-A, I. R. O., 1969.

2. The facts leading up to the appeal briefly stated are that the appellant was employed by the respondent herein, as Class III Officer and was posted as a programmer in the Computor Division. He was initially dismissed from service on 27th February, 1980 on charges of misconduct, firstly, that on 2nd January, 1980 he wilfully disobeyed the orders of his immediate superior Younus Umer Khanani and since then has not been taking any interest in work, and secondly, that in his letter, dated 6th January, 1980 addressed to the Senior Vice-President Computor Division and letter, dated 9th January, 1980 addressed to the President of the Bank in his letter, dated 12th January, 1980 addressed to the Senior Vice-Presi dent, Computor Division, he used objectionable language and made false allegations against Senior Vice-President, Computor Division. He filed a grievance application which was dismissed by the trial Court. He filed an appeal in this Tribunal and vide order, dated 18th January, 1982, he was absolved only of first charge and was directed to be re-instated in service. The Tribunal, however, observed that it was open to the respondent-bank to consider the case of the appellant only in respect of the second charge namely using objectionable language and levelling baseless allegations against Mr. Rizvi, Senior Vice-President, Computor Division, in his letters, dated 6th, 9th and 12th January, 1980, and after affording him an unit of hearing in that behalf, to pass orders on the enquiry proceedings in accord. ante with law. It was further observed that the award of benefits will depend upon the result of fresh enquiry. A fresh enquiry was held by the respondent bank after re-instating the appellant and after finding him guilty on the second charge stated above, he was dismissed from service vide order, dated 23rd May, 1982. He served a grievance notice, dated 3rd June, 1982 on the respondent-bank and filed a grievance application on 16th August, 1982 before the learned Labour Court. The learned Labour Court dismissed his grievance application, resulting in the present appeal.

3. The learned Labour Court recorded the evidence The appellant examined himself whereas the respondents examined Syed Kamal Hyder, the enquiry officer, who produced alongwith the other documents, the enquiry proceedings vide Exh. 3JH. I have perused all the evidence recorded before the enquiry officer leading up to the enquiry report and also before the learned Labour Court oral as well as documentary. I have also heard the learned counsel for the parties, Mr. M. L. Shahani for the appellant and Mr. Mahmood Abdul Ghani for the respondents. Mr. Shahani for the appellant has raised two fold contention: firstly, that the letters, dated 6th January, 1980, 9th January, 1980 and 12th January, 1980 written by the appellant to his superior Senior Vice-President, Computor Division and the President of the respondent-bank do not contain objectionable and derogatory language which would constitute an act subversive of discipline within the meaning of Standing Order 15 (3) (h) ; secondly that the enquiry held against the appel lant was neither just nor proper and that the enquiry report was per verse. Mr. Mahmood Abdul Ghani, the learned representative for the respondent-bank has resisted the contentions and has further contended that the grievance application was time-barred. He has mainly contended that the three letters, dated 6th, 9th and 12th January, 1980, contain objectionable and derogatory language addressed by the appellant to his superiors which would constitute not only wilful insubordination but also an act subversive of discipline, and thus a misconduct within meaning of Standing Order 15 (3) (h) (a). He has also contended that the enquiry pro ceedings complied with all the requirements of the principle of Natural Justice and the enquiry report based on such proceedings was not at all per verse. As regards the bar of limitation, he has contended that the grievance notice, dated 3rd June, 1982 was withdrawn on 30th June, 1982 and, there fore, no grievance notice was in existence and the application was not maintainable on- that account. He has further contended that in any case only one grievance notice, dated 3rd June, 1982 is contemplated by the provisions of section 25-A, I.,R.O., 1969, which was replied and rejected on 8th June, 1982 and computing the period of limitation from that date, the grievance application filed on 16th August, 1982,was defini tely time-barred.

4. Coding to the first contention raised by Mr. M. L. Shahani it would be appropriate to 'refer to the contents of three letters, dated 6th January, 1980, 9th January, 1980 and 12th January, 1980, as admittedly written by the appellant to his superiors, the Senior Vice-President of the Computor Division of the bank and the President of the Bank. The letter, dated 6th January, 1980 was written by the appellant in reply to the memorandum of instructions bearing No. COMP/Miscellaneous 29/SLB, dated 5th January, 1980 addressed to him by the Senior Vice-President, Computor Division. In the memo. above-named, dated 5th January, 1980, he was called upon to explain as to why disciplinary action should not be taken against him for having refused to follow the instructions issued to him by Mr. Younus Umer Khanani under whose supervision, he was posted to work, as Mr. Khanani had reported against him. While writing, the appellant went to the extent to say "Therefore, the allegation of refusal to follow instruc tion of Mr. Khanani on my part is ridiculous and self-defeated. To all appearances, it is a downright fabrication doomed to failure as a lie has no legs to stand upon. My compliance report, dated 22nd December, 1979 belies the mala fide allegation which finds no corroboration from evidence, direct or indirect, express or implied." In the last paragraph of the letter, he wrote "I, therefore, request that the matter in its entirety be sifted and winnowed out in an impartial and independent enquiry conducted by Computor/Personnel division-and the alleged refusal be suitably taken up for appropriate action, as being mala fide, mischievous and malicious to meet the ends of justice." In letter, dated 8th January, 1980 while writing to the President of the Bank, the appellant said while referring to the Senior Vice-President, Computor Division, "He called him in his chamber and appreciated the naked truth of the contents of my written explanation. He explained to me that the said memo. was issued through grave misunder standing for which he felt sorry. But as fate would have it, as a remedy he did not see his way to withdraw his memo. as a question of his self assumed personal dignity, but tried to dissuade me to file an amended expla nation pointing out that Mr. Khanani's report about refusal on my part to follow his instructions was false and baseless, leaving aside other details touched upon in any written explanation, which were seemingly detrimental to his interest." He went on to write subsequently "The Senior Vice -President called me a number of times in his chamber to make me change my mind according to his dictation." In the last paragraph, he went to write to the extent "To meet the ends of justice, I request an impartial and independent enquiry be instituted at a high level for appropriate action in the matter." In his letter, dated 12th January, 1980, which was address ed by him in reply to the letter, dated 8th January, 1980 addressed by the Senior Vice-President to the officers including the appellant, he took an excep tion to have been addressed without designation. He wrote "As there can be no person without a name, there can be no employee without a specific desig nation. It is rather unfortunate that in the letter under reference I am addressed by name without a designation whereas in the Memo. dated 5th January, 19801 am addressed by name/Class III Officer proper address is not a choice to it arbitrary discretion, regardless of position high or low. Psychologically, the omission of designation is an unholy attempt to humiliate a bona fide employee for pleasure's sake." The contents of the three letters taken as a whole would clearly indicate that the appellant referred to his superior Younus Umer Khanani under whom he was working and addressed the Senior Vice President and the President of the bank in a haughty and objectionable manner. The language used is definitely un-parliamentary, discourteous and impolite. While replying to the explanation called for from him he referred to the allegations of not following instructions of his superior and behaving in a non-co-operative manner as ridiculous and self-defeated. Chamber's Twentieth Century Dictionary assigns "Ridicule" a meaning as absurdity, derision mockery, to laugh at, to expose to meriment: to deride, to mock. `Ridi culous' means, deserving or exciting ridicule, absurd. The appellant by writing the word "ridiculous" to his superior while referring to the allega tion made against him definitely tried to mock and laugh at his superior officers. Apart from the writings being objectionable and derogatory, they would tantamount to insubordination as well. The same Dictionary assigns meaning to "insubordinate" as not subordinate or submissive". The same Dictionary says "submit" means, submissive subdued low-toned. The contents of the letters, on their plain reading can never be considered submissive or low-toned. In letter, dated 9th January, 1980, he has called for an enquiry to be instituted against his Senior Vice-President, Computor Division. In his letter, dated 12th January, 1980, he has taken exception to have not been addressed by his designation. Apart from all that the language of the three letters would clearly indicate that it is from a very hot-headed person. Mr. M. L. Shahani for the appellant has conceded that the language used may be of a haughty person but it was not at all derogatory or objec tionable and the charge against him would at best fall under Standing Order 15 (1) (ii) (a) or (b) or (c) as being disregard or disobedience of orders or rules, improper behaviour or making false and misleading statements. On the basis of the material available as referred above, I am afraid it would be impossible to agree with him. In support of his contention he has relied on the authority of the Supreme Court of Pakistan reported in the case of Pakistan International Airlines Corporation v. Junior Labour Court No. IV etc. (P L D 1978 S C 239). In that case, allegations against the employee were unauthorised absence for 5 days from duty, and it was held that it was not an act subversive of discipline and would at the most be covered by the acts or omission falling under subsection (i) (ii) of Standing Order 15 calling for a minor penalty. The facts and circumstances of the case would, on the face of it, be clearly distinguishable from the facts and circumstance of the instant case. He has also placed reliance in the case of Pun jab Urban Transport Corporation v. Khalid Dad (1980 P L C 930). Wherein the facts were that the charge against the bas conductor was of carrying excess cash while on duty. It was held that it would not amount to misconduct, and would at best amount to disregard or disobedience of rules as defined in Standing Order 15 (1) (ii) (a). The third case he has referred is reported in the case of Raja Muhammad Akram v. General Manager, Army Welfare Food Industries, Faisalabad (1981 P L C 454), in which case the Despatch Clerk was charged of sending a letter on wrong address and on calling for an explanation from him, he explained that it was an omission due to lack of experience and the learned member of the National Industrial Relations Commission held that he could not be charged for any act subversive of discipline. The other cases cited are not relevant to the issue at all. I would, therefore, find that none of the cases cited by Mr. M. L. Shahani for the appellant would be applicable to the facts and the circumstances of the instant case as they are clearly distinguishable.

5. Mr. Mahmood Abdul Ghani for the respondent has relied on the Supreme Court authority reported in the case of Abdul Rasheed Qureshi v. Industrial Court of West Pakistan, Lahore and Pakistan Tobacco Co. Ltd., Jhelum, (1967 P L C 525). In support of his contention to the effect that the alleged writing as stated above on the part of appellant would clearly indicate conduct sub versive of discipline. In that case, the appellant was employed as a clerk in the Jhelum establishment of Pakistan Tobacco Company and was the General Secretary of the employees union when he addressed to the Director, Labour Welfare, West Pakistan, a letter on behalf of the union making a reply to several matter that had arisen between the company and the employees' union, and in particulars a charge which had been made against the Propaganda Secretary of the Union and a copy of the same was not sent to the Branch Manager of the company at Jhelum. The, letter said "it is quite wrong that the union propaganda secretary had some hand in the strike of casual labour and domestic servants. On the other hand it was the personnel Manager who arranged the casual labour strike with the intention to make a public contract with a labour contractor." The Honourable Judges of the Supreme Court observed "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. He has also referred to the case decided by the Industrial Appellate Tribunal, West Pakistan in support of his con tention reported in the case of Ghulam Rasool Khan v. The District Manager, Government Transport Service, Hyderabad (1970 P L C 356) wherein the learned Chairman of the Tribunal held that the term willful insubordination" is a very wide term and it would include mis-behaviour on the part of a workman, and that if a workman acting in a haughty and insulting manner towards his superior, it would be covered up by the term is "willful insubordination". He has also referred to the cases of this Tribunal of which one is reported in the case of Muhammad Yousuf v. Messrs Indus Jute Mills Ltd. (1980 P L C 972). It was held in that case that a false statement against management that it stopped workers from offering prayers would likely excite strong prejudice against management leading even to riot and would amount to misconduct subversive of discipline with penalty of dismissal. In the case reported in Gharo Textile Mills Ltd. v. Muhammad Sultan (1980 P L C 999), employee waylaying security incharge on way from rounds of factory to residential quarter within Labour Colony abusing and insulting and assaulting him with reference to his duties and performance, would affect employer on his business seriously prejudicing factory, discipline and in such circumstances it was held that he was rightly charged and dismissed for misconduct of act subversive of discipline. There is no doubt that if a subordinate who misbehaves with his boss is let off, it will become impossible to control and get work from subordinates. Judging the conduct of the appellant in the instant case in the light of the decisions above referred, there appears to me no doubt that in his letters throughout he used derogatory ands objectionable language to his superiors for no reason except that an explana tion was called from him for his non-co-operative behaviour and a circular letter was addressed to him in his name and not by reference to his designation. In my view, he is very clearly guilty of misconduct fort acts subversive of discipline as well as insubordination, within the meaning of Standing Order 15 (3) (a) (h) of the Standing Orders Ordi nance, 1968.

6. As regards the second contention raised on behalf of the appellant by his learned counsel, I have perused the enquiry proceedings at Exh. 3/H which are in all in 15 pages. I find that the enquiry was spread over a number of hearings and that the appellant participated in the enquiry and cross-examined the respondent's witness Muhammad Kabir Alam. Reference in the enquiry was also clearly made to the three letters, dated 6th January, 1980, 9th January, 1980 and 12th January, 1980 con taining derogatory and objectionable observations towards his superiors by the appellant and I find that in no way the appellant can have any grievance against the conduct of such an enquiry. He instead of having examined himself filed an already prepared statement spread over 7 pages which was accepted and had also allowed himself to be subjected to cross-examination with a special reference to the material issue in, lived in the enquiry with regard to the misconduct alleged against him and 1:e had no defence witness to examine. On the basis of evidence adduced in such an enquiry, the enquiry officer submitted his well-considered report. I find it well-reasoned as well and fail to understand as to how either the enquiry proceedings or the enquiry report can be challenged as being opposed to principles of natural justice, and also being perverse. The enquiry report dated 2nd March, 1982 is very clearly based on the relevant material and the evidence adduced in the enquiry which appears fair and impartial and Such a report cannot be called perverse. Accordingly, I find that even this contention raised on behalf of the appellant has no substance.

7. I would then come to discuss the contention raised on behalf of the respondent that the grievance application is time-barred and therefore not maintainable. It was filed on 16th August, 1982 whereas the first grievance notice, dated 3rd June, 1982 was served on 6th June, 1982. Subsequently, departmental appeal was filed on 17th June, 1982 and the grievance notice was withdrawn on 30th June, 1982. The second grievance notice was served on 17th July, 1982 and the departmental appeal was replied by letter, dated 30th August, 1982, whereas the grievance applica tion was filed on 16th August, 1982. Mr. Mahmood Ghani has contended that the first grievance notice, dated 3rd June, 1982 was withdrawn on 30th June, 1982 and since only one grievance notice is contemplated by law, no grievance notice can be said to have been given in the instant case and the application is not maintainable on that ground alone. In the alternative, he has contended that the grievance notice, dated 3rd June, 1982 was replied and rejected on 8th June, 1982 and the period of limita tion of two months if computed from that date, the grievance application filed on 16th August, 1982 would be time-barred. I find no force in these contentions. So far his first contention is concerned, in case the first grievance notice, dated 3rd June, 1982 was withdrawn the appellant's departmental appeal was filed on 17th June, 1982 which was definitely within a period of 3 months since when the cause of action arose and it can be treated as grievance notice as it has been invariably held that even appeal, representation and mercy petition can be treated a grievance notice as no form of the grievance notice is prescribed and that only a grievance has to be brought to the notice of the employer in whatever form. So far his second contention is concerned, the appellant has denied knowledge of reply to his first grievance notice and its rejection, and the respondent has failed to discharge their obligation by producing such a reply, dated 8th June, 1982, if any. I have searched throughout the record but no such reply, dated 8th June, 1982 appears to have been produced. The period of limitation of two months, therefore, cannot be computed from 8th June, 1982 but can only be calculated from 6th June, 1982 when the grievance notice was served on the respondents and in that view of the matter, the appellant filed the grievance application on 16th August, 1982 definitely within a period of months and 15 days of the service of the first grievance notice, dated 3rd June, 1982. In my view, the first grievance notice, dated 3rd June, 1982, alone is envisaged by section 25-A, I. R. O., 1969, irrespective of the fact as to whether it was withdrawn or not and the limitation would run from either the date of the service of the grievance notice or the reply to it as the case may be. In the case of M. Ghiasuddin v. Chairman, Karachi Port Trust (1978 P L C 350), it was held that two grievance notices are not envisaged by section 25-A, I.R.O., 1969 and the limitation runs from the date of the reply of the first notice. This view was endorsed by the Karachi High Court in the case of S. W. H. Jafri v. Muhammad Salim Sheikh and 2 others (1979 P L C 431). It is well -settled law that the time begins to run from the service of the first grievance notice and the period of limitation cannot be extended by serving succes sive grievance notices for any reason. It is also well-settled that the period of limitation when once starts it does not stop till it expires. In the instant case, since there is no definite evidence that the first grievance notice, dated 3rd June, 1982 was replied and rejected on 8th June, 1982 as contended on behalf of the respondents, the limitation would not start from 8th June, 1982 but it would start from 6th June, 1982 the date of service of notice and since the grievance application filed on 16th August, 1982 was within a period of 2 months and 15 days from 6th June,. 1982, it was definitely filed within a period of limitation as contemplated by section 25-A, I. R. O., 1969. Accordingly, I find no substance in this contention raised on behalf of the respondents by their learned repre sentative.

8. The result is that the appeal is dismissed. M. Y. M. Appeal dismissed.