ABDUL AZIZ KUNADI, J.--- Asmatullah appellant being aggrieved by the judgment and order, dated 30-10-2004, passed by Presiding Officer, Labour Court, Peshawar, dismissing his grievance petition under section 25-A, Industrial Relations Ordinance, 1969 (hereinafter referred to as Ordinance) has through the instant appeal, questioned the same praying for reversal of the impugned judgment and order and acceptance of his grievance petition with full back wages and benefits.
2. Previously stated facts of the case are that while posted as Junior Captain in Pearl Continental Hotel, Peshawar, appellant was elected as General Secretary of the Workers Union, Pearl Continental Hotel, Peshawar, which was the collective bargaining agent union of the said hotel. It was on 21-10-1998 that he was served with a charge sheet of the said date, charging him that he on 17-10-1998 while visiting the A carpenter shop threatened Jan Muhammad, Carpenter of dire consequences in appellant's capacity as General Secretary of the CBA Union and also threatened to be forbidden from duty by force and that the appellant's this act amounts to misconduct under Standing Orders 15(3)(a) and (h) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as Standing Orders). This charge sheet was duly replied by the appellant on the same day denying the allegations of threatening Jan Muhammad aforesaid and stated that he had only inquired about the notice board on which at the relevant time stay order granted by N.I.R.C. In favour of the President of the Union was pasted.
The management having not found the reply satisfactory vide its order, dated 26-10-1998, ordered inquiry in the matter and appointed one Mr. Abdul Bari, CSO as Inquiry Officer. On appellant's representation, dated 28-10-1998, the Inquiry Officer was changed and one Mr. Khizar Hayat, Laundary Manger appointed on 29-10-1998 to do the needful. Appellant's objection, dated 31-10- 1998 for change of the newly appointed Inquiry Officer did not find favour with the management vide its order, dated 2-11-1998.
3. During the course of inquiry, the matter was taken before National Industrial Relations Commission, Islamabad, because appellant's request for allowing him to associate one of the workers' to assist him in the inquiry in terms of proviso to clause 4 of standing order 15 of the standing orders was refused. The said petition was ultimately dismissed by single member Bench of the Commission on 18-12-1998, however, a direction was issued that the employer can go ahead with the disciplinary proceedings by allowing a coworker of the appellant to sit in the proceedings.
4. On the following day i.e, 19-12-1998 appellant's services were terminated by General Manger of the Employer concern, which promoted the appellant to serve grievance notice, dated 28-12-1998 upon the respondent. Having found no response, appellant ultimately filed his petition under section 25-A, Ordinance (ibid) before Labour Court on 10-3-1999.
5. In the meantime, on a complaint under section 22-C, Ordinance (ibid), a single Bench of N.I.R.C., Islamabad vide its order, dated 26-7-1999 ordered reinstatement of the appellant which order was on appeal by the respondent set aside by a full Bench of N.I.R.C. On 30-7-2003.
6. Before the Labour Court petitioner-appellant recorded his own statement and placed on file Exh.P.W.1/1 letter, dated 24-9-1998 by Director Labour to Government of N.-W.F.P., Labour Department; Exh.P.W.1/2 charge sheet, dated 21-10-1998; Exh.P.W.1/3 reply, dated 24-10-1998 to charge-sheet; Exh.P.W.1/4 notice of Inquiry, dated 26-10-1998; Exh.P.W.1/5 objection, dated 28-10- 1998 to Inquiry Officer; Exh.P.W.1/6 letter, dated 29-10-1998 regarding change of Inquiry Officer; Exh.P.W.1/7 application, dated 31-10-1998 objecting to the Inquiry Officer; Exh.P.W.1/8 letter, dated 2- 11-1998; Exh.P.W-1/9 letter dated 2.11.1998; Exh.P.W.1/10 application, dated 3-11-1998 for permission to associate a co-worker; Exh.P.W.1/11 postal receipt; Exh.P.W.1/12 order, dated 18-12-1998 passed by N.I.R.C.; Exh.P.W.1/13 termination order, dated 19-12-1998, having been found guilty of misconduct under standing order 15(3) (a) and (h); Exh.P.W.1/14 grievance notice, dated 28-12-1998 and Exh.P.W.1/15 postal receipt. In his cross-examination, respondent brought on record Ex.P.W.1/D-1 application, dated 4-11-1998 by appellant; Ex.P.W.1/D-2 and Ex.P.W.1/D-3 letters by Inquiry Officer addressed to appellant.
7. As against that on behalf of employer-respondent Khizer Hayat, Inquiry, Officer recorded his statement as R.w.-1 and produced Inquiry Report, copy Exh.R.W.1/1; copy of order, dated 29-10-1998 passed by N.I.R.C. As Exh.R.W.1/2; attested copies of documents from N.I.R.C. As Exh.R.W.1/3; reinstatement order of the appellant by N.I.R.C. As R.W.1/4; settlement between the Establishment and the Union as Exh.R.W.1/5; General Rules and Regulations Exh.R.W.1/6 and the report of Jan Muhammad, carpenter as Exh.R.W.1/7.
' Then was examined R.W.2 Maj. (Retd.) Naveed Izaat Niazi, Chief Security Officer, P.C. Hotel, Peshawar who confirmed his statement Ex.R.W.2/1 having been recorded by the Inquiry Officer.
' Muhammad Quresh Khan, Assistant Personal Officer, P.C. Hotel, Peshawar was examined as R.W.3 who produced personal file of the petitioner-appellant as Exh.R.W.3/1 (64 sheets).
8. On conclusion of trial Presiding Officer, Labour Court, Peshawar vide his order, dated 30-10-2004 proceeded to dismiss grievance petition of the petitioner-appellant as under:--- "The impugned order Exh.P.W.1/13 would reveal that he was adjudged guilty of misconduct but instead of writing dismissal the word termination was used by the Estt. In fact the impugned order is not a termination order rather it is the dismissal order from service because the petitioner was charge-sheeted, enquiry was conducted, he was found guilty and on the basis of report of the enquiry officer the impugned order was passed.
' In these circumstances I see no merits in the present petition, the same is dismissed with no order as to costs".
9. Learned counsel for the appellant vehemently argued that charge against the petitioner- appellant was not at all proved; that inquiry was conducted in a partial manner, that petitioner- appellant was deprived of a statutory right by not allowing him to associate a co-worker to assist him, in the inquiry proceedings in terms of proviso to clause 4 of Standing Order 15 and thus caused material prejudice; that admittedly petitioner-appellant was General Secretary of Collective Bargaining Union of the Employer's concern and thus the entire proceedings against him were based on malice aimed to get rid of him. Lastly it was contended that the punishment inflicted is too harsh, not commensurate with the charge, if held to have been proved. Non-supply of inquiry report to the petitioner-appellant was also pressed into service to be fatal for the defence of the respondents.
10. Learned counsel for the respondents while opposing the appeal defended the impugned judgment and argued that inquiry was conducted in a fair and impartial manner and that charge against appellant was legally proved; that request of the appellant for allowing him to associate a co-worker in the inquiry was never declined, nor was any such worker produced before Labour Court to substantiate his allegations. The allegation of malice of the employer-respondent were also refuted.
' Arguments heard. Record perused.
11. Vide charge-sheet, dated 21-10-1998 Exh.P.W.1/2 petitioner-appellant was charged for misconduct under Standing Order 15(3)(a) and (h) and impugned order of his termination from service, dated 19-12-1998 Exh.P.W.1/13 also holds him guilty of misconduct under the said provision of law, it would be thus better to reproduce the same for sake of ready reference:-- "15.Punishments:---
(1) .............................................................
(2) ........................................................................................................................
(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) ............................................................................................................................
(c) ............................................................................................................................
(d) ........................................................................................................................
(e) ........................................................................................................................
(t) .............................................................................................................................
(g) ........................................................................................................................
(h) riotus or disorderly behaviour during working hours at the establishment or any act subversive of discipline.
12- A plain reading of the above would show that under sub-clause (a) reproduced above it is wilful insubordination or disobedience to any lawful and reasonable order of a superior which has been made a misconduct.
' Similarly under sub-clause (h) it is riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline which has been held to be misconduct.
13. The allegation against the appellant in the charge sheet Ex.P.W.1/2 are:--- "That on October, 17th 1998 you went to carpenter shop and asked Mr. Jan Muhammad, carpenter as to why he had removed the Notice Board and threatened him of consequences that you being General Secretary of the Union will forbid him from duty forcibly. You also threatened him that the officer who had ordered him to remove the board will also be banned from duty by the union in front of Chief Security Officer Mr. Naveed Izaat Niazi".
14. It is to be seen, whether the charge as made stood proved in the inquiry proceedings culminating into inquiry report Exh.R.W.1/1 and if so, whether it would be misconduct under sub- clauses (a) and (h) (ibid).
15. In his complaint, dated 20-10-1998 Jan Muhammad, carpenter terms the incident to have taken place twice, firstly in carpenter shop on 17-10-1998 at 4-30 p.m. And then on 19-10-1998 at un- specified time and place but in the presence of Security Officer, Major Niazi and Security Assistant Mr. Naseem. In his complaint, he charged the appellant of having given him threats only but in his statement, dated 5-11-1998 he went a step ahead and charged the appellant of having abused him and the officers of the employer's concern.
16- Major (Retd.) Naveed Niazi also appeared before the Inquiry Officer but neither he, nor complainant himself named Security Assistant Naseem to be present on 19-10-1998, nor was the said witness produced in inquiry to support the complainant. Petitioner-appellant has though been shown present on both these occasions when statements were recorded but he has not opted to cross-examine the said witnesses and rightly so because his application, dated 3-11-1998 Exh.P.W.1/10 for allowing him to associate a co-worker in the exercise of his right under proviso to clause (4) of Standing Order 15 was not positively responded. The said proviso makes it obligatory for the employer by using the word "shall" to allow he workman so nominated to be present in the inquiry to assist the workman proceeded against and shall not deduct his wages, if the inquiry is held during his duty hours.
17. In the case of Hafeez Shah and 3 others v. United Bank Limited and 2 others 2001 SCM R 931=2001 PLC 489, the honourable apex court held that provisions of Standing Orders 15(4) of Ordinance, 1968 are mandatory and their non-observance would vitiate the proceedings.
18. The non-provision of assistance of a co-worker is manifestly clear from Exh.P.W.1/12 judgment, dated 18-12-1998 passed by N.I.R.C, which concludes as under:-- "That the respondents can go ahead with the disciplinary proceedings by allowing the co-worker of the petitioner to sit in the inquiry proceedings".
' It was a day after i.e, 19-12-1998 when the impugned order of termination was passed.
19. Though the Inquiry Officer had in his statement in court stated that he had without any order in black and white allowed a co-worker to associate with the appellant but his said statement in the light of the above direction by NIRC stands belied because admittedly after 18-12-1998 except for the impugned termination order no proceedings were conducted.
20. The upshot of the above discussion is that not only the charge of misconduct as levelled against the appellant was not legally proved but because of non-compliance of proviso to clause 4 of Standing Order 15, the entire proceedings stand vitiated.
21. Half hearted reliance of the learned counsel for the respondent on the cases reported as 1998 SCM R 644 Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others and 1999 SCM R 373 titled Pak Arab Refinery Limited v. Muhammad Rashid is misconceived because it had never been the case of the respondent that appellant was not a "workman" or "worker" within the meaning of standing orders or Ordinance of 1969.
22. Petitioner-appellant has in his statement on oath before the Labour Court stated "Since my termination I am jobless. It is, therefore, requested that I may be reinstated in service with all back- benefits and wages"
23. His this stand has not at all been challenged.
' Resultantly, while allowing this Labour Appeal, the impugned judgment and order dated 30-10- 2004 passed by Labour Court, Peshawar is set aside; grievance petition of the petitioner-appellant is accepted, his termination of service order dated 19-12-1998 is set aside and he is reinstated in service with all back benefits.
' Parties to bear their own costs.