Appellant Dilawar Khan who was an employee of the respondent in Syrup Section of the Factory was found in possession of 30 bore pistol at its exit. He was served with a show-cause notice and on receipt of his reply was proceeded against. When the charge against him was established in a duly held inquiry, he was dismissed from service vide order dated 8.9.2000. When his petition before the Presiding Officer, Labour Court, Mardan was dismissed vide order dated 17.1.2004, he filed the instant appeal before this Court.
2. It was argued by the learned counsel for the petitioner that even if the allegations levelled against the appellant are taken to be proved against him a reprimand in terms of S.O. 15(1)(ii)(a) of Industrial and Commercial Employment (Standing Orders) Ordinance (VI) of 1968 was sufficient by all means to meet the ends of justice and that dismissal from service being too harsh in the circumstances of the case cannot be sustained under the law. He next urged that where nothing has been brought on record to show that the appellant ever committed breach of any law much less habitually, the charge of habitual mis-conduct too cannot be said to have been proved.
3. As against that the learned counsel appearing on behalf of the respondent argued that where the gravity of the act committed by the appellant clearly and squarely brings his case within the definition of misconduct as defined by S.O. 15(2) and (3) of the Ordinance, punishment of dismissal being perfectly in accordance with law is not open to any exception. The learned counsel to support his argument placed reliance on the case of Pakistan Tobacco Company vs. Ghana Khan and others (1980 PLC 981). The learned counsel next urged that where the conduct of the appellant is improper in every sense of the word it is immaterial that it is. not covered by the standing S.O. 15, as the list of the acts or omissions given therein is not exhaustive. The learned counsel to support his contention placed reliance on the case of Muhammad Riaz vs. Sindh Appellate Tribunal, Karachi and others (1993 PLC 301).
4. I have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
5. It cannot be disputed on the record that the employer prohibit his employees to carry arm inside the premises. It too can't be disputed that the appellant was found in possession of a pistol at the exit of the premises. Now the questions which emerge for the decision of this Court are as to what is the nature of the act committed by the appellant and whether it being one of disobedience simplicitor is punishable with a reprimand or a fine as urged by the learned counsel for the appellant or it being one of misconduct is punishable with dismissal from service as contended by the learned counsel for the respondent. Before I answer the questions it will be worth while to refer to the relevant provisions of the Ordinance which read as under:--
15. Punishments: (1) A workman may be reprimanded or fined in the manner prescribed under the payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month, for any of the following acts or omissions, namely:--
(i) in cases where the Payment of Wages Act, 1936 (IV of 1936), is applicable, the list of 'acts and omissions for which fine may be levied shall be same as approved by the Chief Inspector of Factories or any other officer concerned:
(ii) in other cases, the following shall be the list of acts and omissions:--
(a) disregard or disobedience of rules or orders;
(b) improper behaviour, such as drunkenness;
(c) making false or misleading statements;
(4) inefficient, dilatory, careless or wasteful working; (e) malingering.
(2) A workman found guilty of misconduct shall be liable. to any of the following punishments:--
(i) fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), up to three paisa in the rupee of the wages payable to him in a month:
(ii) withholding of increment or promotion for a specified period not exceeding one year;
(iii) reduction to a lower post; or (iv)dismissal without payment of any compensation in lieu of notice.
(3) The following acts and omissions shall be treated as misconduct:--
(a) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) wilful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days:
(f) habitual late attendance:
(g) habitual breach of any law applicable to the establishment;
(h) riotous or disorderly behaviour during Working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (I):
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(1) go-slow.
(4)----------------------- (5)-------------------------
7. There is nothing in the above quoted provision to show that carrying arm by an employee in the premises of an employer is an act I amounting to misconduct and as such can be punished with dismissal from I . service, therefore, it cannot be pushed into the mischief of misconduct by any I stretch of imagination. As a matter of fact it being an act of disobedience simplicitor falls within the purview of S.O. 15 I (ii)(a) of the Ordinance which can only be punished with a reprimand or a fine.
8. The argument of the learned counsel for the respondent that the gravity of the act committed by the appellant brings his case within the pale of 15(2)(3) of the Ordinance has not impressed me to the least as the act committed by the appellant does not fall within the pale of any of the acts or omissions listed in S.O 15(3) of the Ordinance. The argument that the list of acts and omissions being not exhaustive would include any improper act, too. ' has not moved me to the least firstly because carting arm is not mentioned in the relevant S.O as an act or omission constituting a misconduct so as to justify the punishment of dismissal; secondly because a punishment of this magnitude cannot be awarded unless the act or omission constituting misconduct is defined in clear and distinct terms in the statute itself with reference to their consequences in terms of punishment and thirdly because the Courts of law will never by supplying omission construe an act to his one of misconduct and thereby read in the statute which is not there. Needless to stress that the acts or omissions incurring any punishment or liability of any type must rather be clear and well defined than abstract or indefinite, I therefore, I will not, with due deference to the Hon'ble Judges of the Karachi High Court, agree with the view taken by them in the case of Muhammad Riaz Vs. Sindh Appellate Tribunal. Karachi 'and two others supra.
9. It is true that according to the Industrial Relations Ordinance, 2002 (XCI of 2002) carrying arm within the premises of an employer without any legal authority is an offence but it cannot be applied retrospectively in view of the provisions contained in Article 12 of the Constitution of the Islamic Republic of Pakistan when it was not an offence at the relevant time.
10.The charge of habitual breach of the law applicable to the establishment, however, remained unsubstantial as no such evidence has been brought on record to show that the appellant committed any such breach muchless habitual.
11. When the case of the appellant falls within the pale of S.O 15(1)(ii)(a) and cannot be pushed into the purview of S.O. 15(2)(3) of the Ordinance, I am afraid, it would neither amount to misconduct nor call for the punishment of dismissal, therefore, reprimand in the circumstances of the case would by all means be sufficient to meet the ends of justice particularly when the appellant has already suffered for more than four years after his dismissal. The case of Pakistan Tobacco Company us. Chang Khan and others supra will not thus advance the case of the respondent, as in that case the act constituting misconduct, besides involving moral turpitude clearly fell within the mischief of S.O. 15(3) of the Ordinance.
12. Above all else where there is absolutely nothing on the record to show that the employer ever indicated or held out to his employees before hand that the act of carrying arm inside the premises would be punishable with dismissal from service, under no canons of law and jurisprudence such punishment could be awarded to the appellant. For the reasons discussed above, this appeal is allowed, the impugned order of the respondent and the judgment of the learned Labour Court are set aside and the appellant. is directed to be reinstated forthwith. However, he shall not be entitled to previous benefits.