1992 PLP 507 (PLC)

11. Mr. Manzoor Ali Khan, learned counsel for the appellant maintained that since the Corporation had been established by the Central Government and the Regulations had been framed with its sanction and approval--adoption of (Efficiency and Discipline) Rules later was with its approval--proviso of clause (c) of subsection (4) of Standing Order I of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, will be attracted and provisions of the said Ordinance were not applicable in dispute between the Corporation and its employees. In support of his contention he referred to a number of citations namely 1989 SCMR 842- National Bank of Pakistan v. Manzoorul Hassan 1982 PLC 1002; Muhammad Nawaz v. SLAT and another PLD 1976 Kar. 514; Karachi Development Authority v. Presiding Officer, Vth Sindh Labour Court and 2 others 1990 PLC 593 and a few more. There can be no quarrel about the proposition broadly put.

12. Mr. Ali Amjad learned counsel for the respondent, however, maintained that there was something more to it. If a Corporation, was involved in commercial activities and the administration and even the policies were in the hand of a Board then the exemption provided under clause (c), subsection (4) of Standing Order I will not be available even though the Corporation might have been established by the Central or Provincial Government. He relied upon 1988 SCMR 1725 Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal and others and 1975 PLC 1--National Shipping Corporation of Pakistan v. SLAT and 2 others.

13. In the Supreme Court case mentioned above, the contention was that since the Punjab Small Industries Corporation had its own Service Rules, therefore read with proviso to Standing Order 1(4)(c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 reinstatement could not be sought by the employee through a Labour Court. This contention was turned down and reference was also made to Article 18 of the Constitution which envisages the carrying on of the business of the Federal Government or by a Provincial Government or by a Corporation controlled by any such Government. It goes on to say that "In the proviso, excluding the operation of the Standing Orders Ordinance, it is prescribed that "provided that nothing in this Ordinance shall apply to Industrial and Commercial Establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein". It further says "that the Corporation have been omitted from the proviso and the requirement is of Provincial or Federal Government carrying on business under its authority and the existence of the statutory rules." In the case before us it is a common ground that the Provincial Government has set up a Corporation which is the appellant and which is running the establishment of which the respondents were employees. It is clear, therefore, that on the words of the proviso Standing Orders do not become inapplicable and the decision in the case of National Shipping Corporation correctly lays down the law on the subject.

14. Since the other citation mentioned earlier has been accorded approval in the aforesaid judgment it is not necessary to refer to the same any further. The position, therefore, that emerges is that the Standing Orders Ordinance becomes applicable to any dispute between it and its workmen.

15. The relevant provisions for cases of `misconduct' are to be found in Standing Order

15. Under Standing Order 15(3) the acts and omissions have been mentioned from (a) to (1). The one relevant for our purpose is Standing Order 15(3)(a), which reads as under:-- "(a) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior It is misconduct, which entails the punishment of dismissal. Then comes Standing Order 15(4) which is in the following terms:-- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer 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, the employer shall institute independent inquiries before dealing with charges against a workman: Provided

(omitted)

16. Since there was no `inquiry' in the instant case at all, it will not be necessary to refer to the cases which have been cited at the Bar. I might, however, make mention of only two cases 1974 PLC 66, was a case decided by this Tribunal. It pertains to the dismissal of a Driver on the ground that he had refused to carry on duties beyond scheduled hours; though there was a feint suggestion from the side of the employer that it could be managed within time. In the circumstances as found therein, it was not possible and the Tribunal was of the view that even though the Driver was entitled to `overtime' yet he may have been reluctant to remain on duty beyond the stipulated hours, being tired, and for any other consideration. Further he could not be compelled to carry on the order. As such the order was not reasonable. Then there is a case to be found in 1990 PLC 373 where an employee had refused to receive a letter and it was found that the demand was not reasonable as it could be sent by post.

17. In the instant case the respondent per chance happened to find himself in the office of the Zonal Manager and he was asked to receive a letter. This happened to be at a time when the relations between the respondent and the official heirarchy could not be said to be too pleasant. It is not necessary to delve deep into the allegations whether he was on leave on that day or not. There was no reason as to why this letter was being passed on io the respondent and why not despatched through the post or the Qasid. The senior officials of the management, it appears, were determined to axe him, reason or no reason, and without a semblance of legality in their action.

18. Now let us turn to Rules 5 and 6 of the Government Servants (Efficiency and Discipline) Rules, 1973. "

5. Inquiry procedure: --(I) The following procedure shall be observed when a Government servant is proceeded against under these rules:- (i)

(Omitted). (ii) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or. Inquiry Committee, if he so decides, the procedure indicated in rule 6 shall apply. (iii) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee,. he shall

(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or 1InV part thereof it is not expedient to give such opportunity. (iv) On receipt of the report of the inquiry Officer or Inquiry Committee or where no such officer or committee is appointed, on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass order accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper. "

6. Procedure to be observed by the Inquiry Officer and Inquiry Committee.

When an Inquiry Officer or Inquiry Committee is appointed, the authorised officer shall-- (1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration. (2) Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the date to the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person. (3) The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross -examine the witnesses against him. (4) Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons therefore, shall be reported forthwith to the authorised officer. Normally no adjournment shall be for more than a week. (5) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper, the progress of the enquiry he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the enquiry in such manner as he or it thinks best suited to do substantial justice. (6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised officer, submit his or its findings and the grounds thereof to the authorised officer.

19. True that by adopting the procedure as given under Rule 5, inquiry can be dispensed with. But in Syed Muhammad Aslam Qadri v. Central Board of Revenue and others 1989 PLC (Service Cases) 767, it was clearly laid down that the show-cause notice must be comprehensive. In the case before the Tribunal the reply was virtual admission; and the goods extorted were secured, alongwith the money. Similarly in the case reported in 1989 SCMR 496 Muhammad Ishtiaq v. Pakistan and another, the petitioner had confessed his guilt in writing. The statement was voluntary. It was observed by the Court that it was the truth and the appeal was dismissed with the observation that in the circumstances there was no harm, if the Government Servants (Efficiency and Discipline) Rules had not been properly applied.

20. The picture is totally different in the case before this Tribunal. The reply was far from admission. It was exactly in the words as put forward before the Court. It does not smack of any insolence and insubordination, but was a polite refusal to accept what was being thrust upon him. And he gave a reason for it. There were two officers of the Department sitting with the Zonal Manager. Their version never saw the light of the day. It is not necessary to dilate on this episode any further, as the Standing Orders Ordinance would be applicable and there was no inquiry, which was indispensable before any order of dismissal could be passed.

21. I will, therefore, uphold the order passed by the learned Labour Court and dismiss the appeal. H.B.T./2014/Lb.S Appeal dismissed.