1. ' MUHAMMAD NADIR KHAN, J.---This Labour Appeal Under section 37 of Industrial Relation Ordinance 1969 (hereinafter referred to as "I.R.O.") is directed against the judgment dated 21-12-2000 passed by District and Sessions Judge (Ad hoc)/Presiding Officer 1st Labour Court, Quetta (hereinafter referred to as the "trial Court") whereby the application filed by the appellant (hereinafter referred to as the applicant/worker) Under section 25-A of the I.R.O. Against respondents challenging the order of his dismissal from service, has been dismissed.
2. ' The relevant facts arising out of the record are that the applicant/worker initially joined service of the respondent hotel on 17-10-1992 as temporary telephone operator, he resigned from service on 20-12-1992 and was rehired on 19-6-1993 and his services were regularized/confirmed on 21-3- 1994. Subsequently on 24-11-1998 he being found involved in misconduct was dismissed from service after inquiry. The applicant feeling aggrieved by his dismissal from service, served the respondents with grievance notice dated 7-12-1998 and on receiving of negative reply he filed the grievance petition on 28-1-1998 wherein he denied committing of any misconduct and claimed that he was active member of "Quetta Serena Hotel Labour Union" and was lastly elected as General Secretary of the same. According to the appellant he was dismissed without any cogent reason or justification. It has been further stated by the appellant that the respondent threatened him not to take part in the activities of union failing which he will face dire consequences and he has been dismissed to avoid his lawful trade union activities.
3. ' The respondents resisted the application by filing of written statement wherein they raised number of preliminary objections with regard to the maintainability of the application and on merits the plea of the applicant was denied contending that before issuance of dismissal order domestic inquiry was held and the charge of using abusive language was proved against the applicant who was in habit of such practice.
4. ' The learned trial Court, out of the 'pleadings of the parties framed following issues:--
(1) "Whether the present application is liable to be dismissed in view of P/obs: 'A' to 'D' of the W.S.
(2) Whether the respondents intentionally and wilfully have snatched the job of the applicant just to avoid his lawful trade Union Activities?
(3) Whether the applicant was involved in unhealthy practice of using abusive language.
(4) Whether the applicant is entitled to relief claimed for?
(5) Relief?"
5. ' After framing of the issues the parties were called upon to adduce their evidence to support their respective pleas. Applicant, examined A.W.1 Yawar Shakil, AW.2 Luqman Khan, A.W.3. Irfanullah and also got recorded his own statement. On the other hand respondents in addition to the statement of their representative/attorney, examined three witnesses namely R.W.1 Saeed Ahmed, R.W.2 Liaquat Ali and R.W.3 Gul Ahmed.
6. ' The learned Presiding Officer, 1st Labour Court Quetta concluded the proceedings by means of judgment dated 21-12-2000 whereby the application under section 25 of I.R.O. Filed by the applicant, has been dismissed.
7. ' Mr. Kamran Murtaza, the learned counsel for the appellant and Mr. Abdul Sattar, the learned counsel for the respondents have been heard at length and the record of the case examined minutely. There is no dispute between the parties about applicant being in service of respondent as workman and was dismissed from service vide order dated 24-11-1998 as he allegedly committed misconduct by using filthy language against the General Manager in the meeting held on 2-11-1998.
8. ' The record reflects that one Liaquat Ali made an application to the Personal Manager of the respondent hotel stating that on 2-11-1998 at 4.00 PM he went to the Cafeteria to take tea. The meeting of General Body of the Union was in progress, during which Tauseef Dar was abusing General Manager. On the basis of above information the applicant was issued show-cause notice dated 5-11-1998 which reads as under:-- "It has been reported against you that on 2nd November 1998 at 4-15 P.M. When Serena Labour Union's General Body meeting was going on you have abused General Manager stating. {{URDU TEXT}} ' The above act of yours amounts to gross misconduct under the meaning of West Pakistan (Standing Orders) Ordinance 1968 section (15).
9. ' You are therefore called upon by meaning of this notice to "Show Cause" within three days from the receipt of this letter, as to why disciplinary action should not be taken against you for committing an act of this misbehaviour.
10. ' In the event no reply is received from you within the above mentioned period, it will be presumed that you have nothing to say in your defence and the matter will be decided ex parte as provided under the law."
11. ' The applicant vide his reply dated 7-11-1998 denied the allegations. His reply was found to be dnsatisfactory whereupon inquiry letter dated 10-11-1998 was issued to the applicant, informing him that on 12-10-1998 at 10.00 AM the inquiry will be held in the office of Assistant Manager, Manpower Development. The said letter was followed by letter dated 13-11-1998 reflecting that the applicant did not attend the inquiry on 12-11-1998 and he was provided another opportunity by adjourning the inquiry to 16-11-1998, meanwhile services of the applicant were suspended by means of letter dated 10-11-1998 and he was charge-sheeted. The applicant joined the inquiry. The applicant admitted holding of the meeting on 2-11-1998, however, he denied use of abusive language. To prove the charge the respondent hotel examined Mr. Anwar, Mr. Shaukat Khan and Liaqat Ali. In rebuttal the applicant examined Luqman Khan, and while the inquiry was in progress and his second witness Muhammad Anwar was being cross-examined, the applicant refused to participate in the inquiry and declined to produce Muhammad Anwar for further cross-examination. The Inquiry Officer concluded the inquiry and submitted his report dated 20-11-1998 with following recommendation:- - RECOMMENDATION OF THE INQU IRY OFFICER ' In the light of the Findings and the past acts of Misconduct committed by Mr. Tauseef Ahmed Dar, it is recommended that strict disciplinary action should be taken against him."
12. ' After submission of the inquiry report final show-cause notice dated 20-11-1998 was issued to the applicant which was replied by him on 24-11-1998 but the employer/respondent hotel found the same as unsatisfactory and he was dismissed from service vide order dated 24-11-1998. Being aggrieved by his dismissal order, the applicant after serving notice under section 25 of I.R.O. Filed the grievance petition before the Labour Court.
13. ' During trial the applicant denied the allegation of respondents and in support of his plea three witnesses namely AW.1 Yawar Shakil, AW.2 Luqman Khan and AW.3 Irfanullah were examined by him.
14. ' AW.1 Yawar Shakil was previously in service of Serena Hotel and was removed from service prior to 1998, he without stating above the meeting held on 2-11-1998 wherein the appellant allegedly used filthy language, stated that while he was working as duty manager in the hotel, he was asked by the management to fabricate cases against employees namely Luqman and Irfan. In cross- examination he admitted that as he was not in service of the hotel in year 1998, therefore, he has no knowledge about the meeting of General Body held in year 1998. AW.2 Luqman stated about attending the meeting on 2-11-1998. He further stated that he did not hear any abusive language used by the applicant, however, in cross-examination he admitted that he heard people saying that the applicant abused the General Manager, he further admitted that till date Management did not involve any of the employee in a false case. He further stated that during speech the applicant did not abuse anyone and after speech of applicant he left the meeting. AW.3 Irfanullah stated that in the meeting of General Body held on 2-11-1998 applicant Tauseef did not abuse anyone. AW.3 in cross-examination admitted that he was also suspended in the same case as he was alleged to have used abusive language and after inquiry he was acquitted of the charge. According to AW.3 he was acquitted in result of the agreement between administration and union and the inquiry against him was formal. AW.3 expressed his lack of knowledge that five members of the union gave in writing that the applicant used abusive language. The applicant in his statement though denied the allegations but admitted that a detailed inquiry was held by the Department and he did not object to the same.
15. ' On the other hand the statements of R.W.1. Syed Anwar and R.W.2 Liaquat Ali employees of Serena Hotel against whom applicant failed to bring on record any or motive for making of false allegation about use of abusive language by applicant, in their statements deposed about their presence during the meeting held on 2-11-1998 wherein the applicant abused the General Manager and used filthy language.
16. ' The respondent exhibited the inquiry report along with the relevant documents i,e, notice about the meeting of general body, application made by R.W.2 Liaquat Ali, notices and the reply of the applicant, the inquiry proceedings, inquiry report and the earlier show-cause notices/inquiry letters issued to the applicant during his service.
17. ' As stated hereinabove the applicant attended that inquiry proceedings and. The evidence of prosecution was examined in his presence, applicant also produced two witnesses and declined to participate in the inquiry when his second witness namely Muhammad Anwar was being cross- examined by the respondent hotel and no reason has been brought on record for his such act of the applicant who failed to point out any procedural defect or illegality committed by the employer hotel in conducting the inquiry and his dismissal from service as the Inquiry Officer was of the view that in the light of the findings and the past acts of misconduct committed by Mr. Tauseef Ahmed Dar strict action should be taken against him.
18. ' After going through the proceedings of the inquiry and the evidence produced by the parties before 1st Labour Court, Quetta I find myself in agreement with the findings of the Inquiry Officer as well as the Labour Court about applicant having used filthy language against the General Manager.
19. ' The learned counsel for the applicant argued that use of filthy language cannot be termed as misconduct. According to the learned counsel on the said allegation the Management lodged a complaint against the applicant in the police station but subsequently the same was withdrawn thereby meaning that the allegation was withdrawn, hence in such view of the matter the applicant could not be dismissed from service on the said charge.
20. ' Order 15 of the schedule of the Industrial Commercial Employment (Standing Orders) Ordinance 1968 (hereinafter referred to as the Standing Orders) provides the punishments for omissions and misconduct committed by a workman, it also defines misconduct and provides the procedure for initiating action against the workman for the omission and misconduct, which reads as under:-- "Punishments: (1) A workman may be reprimanded or fined in the manner prescribed under Payment of Wages Act, 1936 (IV of 1936), up to 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 and 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) discharged or disobedience of rules or orders;
(b) improper behaviour, such as drunkenness;
(c) making false or misleading statements;
(d) 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 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 of 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 or any act of omission referred to in clause (1);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(l) go-slow
(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's] 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 that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.
(5) Where, for the purposes of conducting an inquiry into the alleged misconduct of a workman, the employer considers it necessary, he may suspend the workman concerned for a period not exceeding four days at time [so, however that the total period of such suspension shall not exceed four weeks except the matter is pending before an arbitrary, a Labour Court, Tribunal or Conciliator for the grant of permission under section 47 of the Industrial Relations Ordinance, 1969 (XXIII of 1969). Vie order of suspension shall be in writing and may take effect immediately on delivery to the workman. During the period of suspension, the workman concerned shall be paid by the employer subsistence allowance of not less than fifty per centum of the wages. If the workman is found not guilty, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been suspended."
21. ' The record reflects that prior to the incident of 2-11-1998 too the applicant was alleged to have committed omissions and misconduct as he allegedly was found entering the rooms occupied by female guests in violation of Hotel Rules and he also allegedly tampered the telephone vouchers.
22. The applicant was suspended from service and he was issued warnings on different occasions. The applicant could not negate any of the documents produced by the respondent about his previous conduct and it has already been held that the evidence available on the record proves that on 2- 11-1998 the applicant used abusive/filthy language against the General Manager, hence his behaviour was improper and he frequently repeated the acts of omission for which he was warned but instead of mending his behaviour he acted in disorderly manner. The accumulative effect of his acts in view of Standing Order 15 is found to be misconduct. Therefore, the action taken by the respondent hotel cannot be said to be against the law or in violation of the procedure laid down by the Standing Order 15. The dismissal order of the applicant, therefore, being unexceptional, cannot be interfered. Accordingly the judgment dated 21-2-2000 passed by District and Sessions Judge (Ad hoc)/Presiding Officer 1st Labour Court, Quetta based on the evidence of the parties and free from any legal infirmity is upheld. The appeal having no merits is dismissed.