' The appellant, who was employed as a Marker in the Fabrication Wing of the respondent corporation, was dismissed from service, vide order, dated 12th March, 1981 on the charge of misconduct. He challenged the orders of his dismissal before the learned IVth Labour Court, which has dismissed his grievance petition, holding that the charges against the appellant were duly proved in a domestic enquiry which was fairly and properly conducted and in which the appellant was given full opportunity to defend himself.
2. According to show cause notice, dated 12th January, 1981, which was served upon the appellant, the charges against him were as follows :- "You, Mr. Abdul Shakoor Malik son of Abdul Rehman Malik Marker, P. No, 143308, Fabrication Wing (EPB), have been reported against that :-
(1) On 12th January, 1981 at 12.00 noon you were loitering in the corridor of Fab. Admn Building, without gate pass and by doing so, you were waiting your time. Your personal record shows that you were charged of similar and allied offences before.
(2) On the same day as aforesaid, you entered the office room of S. E. (pp) in his absence, and were found in the act of opening the drawers of his table. It is a subversive act to open the table drawers of an officer in his absence; and on being objected to by the Junior Officer (Admn)
Fabrication Wing for doing so, you reviled and abused him. Your personal record shows that you had misbehaved similarly with the same officer in the past.
(3) In continuance of your bad tempered and disrespectful attitude towards the said Jr. Officer
(Admn) Fab. Wing, on the above mentioned date, you became riotous and created a disorderly scene in Admn. Building of Fabrication, which a good many workers and staff have witnessed. Such disorderly behaviour on your part appears to have been a repeated feature, as is obvious from your service record.
' You are therefore, charged for :- (0 wilful insubordination or disobedience,
(ii) habitual breach of law applicable to the establishment ;
(iii) riotous or disorderly behaviour during working hours at the establishment ; which amounts to misconduct under section 15(3) (a), (g) and (h) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968,"
3. It will be seen that there were four separate charges against the appellant, namely, (1) liotering in the corridor of the fabricating building without pass ; (2) entering the office of Superintending Engineer (PP) in his absence and opening the drawer of his table without permission ; (3) on the Junior Officer (Administration) Fabrication Wing, objecting to the appellant entering the office of the S. E., during his absence and opening his drawer, he (appellant) is said to have reviled and abused the officer, and (4) that his conduct in the past had also been bad and disorderly.
4. It was contended by Mr. Choudhry Rasheed Ahmad, the learned counsel for the appellant, that the first charge, namely, liotering in the corridor without gate pass has not been proved as the appellant had a valid gate pass. The contention of the learned counsel is correct. In fact, the Enquiry Officer has also not held the appellant guilty of this charge, and consequently, the dismissal order is also not based on this charge nor does it make any reference to this charge.
5. With regard to the second allegation, namely, entering the room of S. E., during the latter's absence, and opening his drawer, it was sought to be explained by Mr. Choudhry Rasheed Ahmad that the appellant had been given a clearance certificate by the S. E., while the latter was on rounds at the site, and as the clearance certificate required the stamp of the officer, the appellant went to the office of the S. E., for the purposes of getting the stamp affixed on the clearance certificate but as there was no one in the office of S. E., he entered the office solely for the purpose of finding out the stamp so that he could affix the same on the clearance certificate. The contention of Mr. Choudhry Rasheed Ahmad in other words was that since the S. E., had signed the clearance certificate of the appellant, the latter honestly believed that he was entitled to enter the room of S. E., and to affix the stamp on the certificate. I regret that I find no force in this contention.
The mere fact that the S. E., had signed the clearance certificate of the appellant aad asked him to have the stamp affixed on the certificate did not authorize the appellant to enter the office of the S. E., particularly in his absence, and further to open the drawer for searching the requisite stamp. The conduct of the appellant becomes more reprehensive viewed in the light of the objection raised by the Junior Officer (Administration), to the conduct of the appellant, whereupon, instead of apologizing for his conduct and requesting the Junior Officer to arrange to have the S. E's stamp affixed on his clearance certificate, he misbehaved with the Junior Officer (Administration). It was sought to be argued by Mr. Ch. Rasheed Ahmad that the appellant should be deemed to have been given implied permission by the S. E., to enter his office and to have the stamp affixed on the clearance certificate. But this is not even asserted by the appellant himself either in his reply to the charge-sheet or in his statement made before the Enquiry Officer. It was finally submitted, in respect of this allegation by Mr. Choudhry Rasheed Ahmad that inasmuch as the S. E., who was the most material witness in this behalf, was not examined, the evidence on this issue at best is inconclusive. The S. E. No doubt, would have been a very material witness if the appellant had claimed that he had permitted him to enter his office during his absence and had authorised him to affix the stamp on the clearance certificate after searching for it in his office. However, as already pointed out, no such assertion or claim has been made by the appellant. In such circumstances, the examination of the S. E., either by the Enquiry Officer or by the learned Labour Court, cannot be said to have either prejudiced the appellant in his defence or even to constitute failure to examine a material witness.
6. With regard to the principal charge of reviling and abusing the Junior Officer (Administration), Mr. Abu Saleh, there is not only the written complaint of the said Officer as also his evidence before the Enquiry Officer, but he was supported in this behalf by 4 other witnesses, namely, (1) Mr. Gohar Ali (Senior Clerk) ; (2) Mr. S. Mudassir Zaidi (Superintendent) ; (3) Mr. Javed All Beg (Typist) and (4)
Mr. Hassan Faroorq Niazi (Technical Assistant). The evidence before the Enquiry Officer shows that the appellant used most improper, unbecoming and abusive language towards Mr. Abu Saleh. The evidence of Mr. Abu Saleh and other witnesses also shows that this action on the part of the appellant was entirely unprovoked and was due to Mr. Abu Saleh objecting to the appellant having entered the S. E.'s room during bis absence and the appellant opening the drawer of the table of the Superintending Engineer.
7. In respect of the last charge, namely, previous bad conduct of the appellant, it was contended by Mr. Choudhry Rasheed Ahmad that, firstly, the past record of the appellant was not before the Enquiry Officer, and secondly, that reference to this past record had coloured the opinion both of the Enquiry Officer as well as the punishing authority and had prejudiced the case of the appellant.
Now, as regards the first objection of Mr. Choudhry Rasheed Ahmad, it appears from the record of the Enquiry Officer that he has examined the previous record of the appellant. He could only do so if the record was before him. As such it would appear that the previous record of the appellant was sent for and examined by the Enquiry Officer during the enquiry. No doubt, the previous record could possibly have prejudiced the case of the appellant, but reference to the previous record was appropriate at least for the purposes of determining the quantum of punishment that was to be awarded to the appellant. In any case, since the misconduct that was established against the appellant was serious, the punishment of dismissal cannot be considered to be too harsh.
Moreover, it is for the management to determine what punishment should be awarded to a workman, if misconduct as defined in clause (3) of Standing Order 15 is established against him.
8. For the reasons discussed by me, above, I find no merit in this appeal and would dismiss the same in limine.