DECISION ' These two appeals are both directed decision given by 979, setting aside the his reinstatement in benefits were refused to s habituated to the use the extent of attempt No, 596 of 1979 has g Home Ltd. Hereinafter in question the direction al, while Appeal No, 60 directed against the refusal back benefits. This Order against a the learned First Labour Court, on 19th December 1 dismissal of technician Zafar Iqbal and directing Service but without back benefits. Back ben Zafar Iqbal on the ground that not only he w of vulgar and filthy language but he even went to ting to justify the use of such language. Appeal been filed by Dr. Burjor Anklesaria Nursing referred to as the Nursing Home and calls for the reinstatement in service of Zafar of 1980 has been filed by Zafar Iqbal and is by the learned Labour Court to award him will dispose of both the appeals.
2. The facts which form the background of those two appeals, shortly stated, are that Zafar Iqbal was employed in the Nursing Home as O. T. Technician and was lastly drawing emoluments of Rs.
650 per month. On 7th June 1976, he was charge-sheeted for using foul language whilst on duty, being extremely rude to and misbehaving with the Incharge Medical Officer Dr. Zaidi, and attempting to assault the said Dr. Zaidi. On the basis of this charge-sheet, a domestic inquiry was held against Zafar Iqbal by the Administrator of the Nursing Home, Brig. Irani, who submitted a report to the Management on 17th. June, 1976, to the effect that the charges against Zafar Iqbal bad been established in the domestic inquiry, in consequence, Zafar was dismissed from service with effect from 8th July, 1976, after a second show-cause notice was served upon him and his reply thereto was considered by the management. Zafar Iqbal thereupon challenged his dismissal orders before the learned Labour Court.
3. The Nursing Home resisted the grievance petition filed by Zafar Iqbal on the grounds, firstly, that the labour laws were not applicable to hospitals, nursing homes, etc., and secondly, that the misconduct of Zafar Iqbal had been fully established in a fair and impartial domestic inquiry where full opportunity was given to him to defend himself. The learned Labour Court took the view that Ordinance LI of 1979, which has excluded establishments maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons from the purview of the I.R.O., has prospective and not retrospective operation and as Zafar Iqbal's right to challenge his dismissal from service had accrued long before the coming into force of the said Ordinance, his grievance petition was maintainable. On merits, it held that the charges against Zafar Iqbal had not been proved in the domestic inquiry as there was no evidence in support of the charge of assault, that admittedly no foul language was addressed to or used in respect of Dr. Zaidi and that the mere derogatory mode of address by Zafar Iqbal to Dr. Zaidi, by using the words and did not fall within the ambit of disorderly behaviour. Both the Nursing Home and Zafar Iqbal consider themselves aggrieved by the said decision of the learned Labour Court and have accordingly come up in separate appeals to this Tribunal.
4. I have heard Mr. Badaruddujja, the learned counsel for the Nursing Home and Mr. S. I. Siddiqui, the learned counsel for Zafar Iqbal. Mr. Badaruddujja assailed the impugned decision of the learned Labour Court on the grounds-..
(i) that it is not permissible for a Labour Court to sit in appeal over a domestic inquiry, which is what has been done in the instant case by the Labour Court ;
(ii) that the scope of the inquiry by the Labour Court is to see whether the charge against the workman has been proved and that the domestic inquiry against him was fairly and properly conducted, but the learned Labour Court, in the instant case, has acted in excess of its jurisdiction ;
(iii) that the labour laws are not applicable to the Nursing Home, particularly the Standing Order ;
(iv) that by reason of Ordinance LI of 1979 the grievance -petition by Zafar Iqbal was not maintainable ; and ,
(v) that on merits the misconduct of Zafar Iqbal had been fully established in a fair and impartial domestic inquiry.
5. In support of his first and second contentions, which are interlinked the learned counsel cited the decisions reported in (1) 1975 SC M R 46 I (2) PLD 1973 SC 614 ; (3) PLD 1976 Kar. 376 (4) PLD 1976 Kar. 1100 and also some decisions of this Tribunal as well as the Labour Appellate Tribunal for the Punjab-I have examined these decisions and find that in none of them has reference been made to subsection (5) of section 25-A, I. R. O. The said subsection enjoins upon Labour Courts, while adjudicating and determining a grievance petition under the above section, including a grievance petition against dismissal from service, to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. The scope of this subsection came up for consideration before their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. Jaranwala v. Mohammad Yaqub etc. (1) on appeal from NLR 1978 Labour (Lah.) 588. Their Lordships, while repelling the contention that was not necessary on the part of the employer to satisfy the Labour Court that there exists cause for dismissing the employee as this was a matter which was to the satisfaction of the employer and all that the employer had to show was that he had dismissed the employee after taking proper proceedings and that he is not required to justify the dismissal on the merits. Of the case before the Labour Tribunal. Interpreted the scope of subsection (5) of section 25-A, I. R.O. As follows :- "In subsection (5) of section 25-A of the Industrial Relations Ordinance, XXIII of 1979, it is laid down that in adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. From the language of the statute hereinbefore reproduced it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circumstances of the concerned case it was justified or not, both on merits as well as law. The words shall go into all the facts of the case, are a clear guide with regard to the wide scope of the enquiry which a Junior Labour Court undertakes under section 25-A. These words indeed have been used with a purpose and have to be given full effect so as to achieve the result desired. These words show that when a case is brought before a junior Labour Court, the scope of enquiry is wider than for example the scope of a Tribunal examining only the legality of an order impugned before it. The words shall into all the facts of the, case' clearly signify that the junior Labour Court has run and complete powers to enter even into questions of fact and to arrive at its own conclusion regardless of there being no illegality of procedure in the domestic proceedings. By use of these words the intention of the Legislature appears to provide a double check, one in the form of a domestic enquiry to be held by an employer and the other in the form of a judicial determination by the Junior Labour Court itself. In other words the intention of subsection (5) of section 25-A appears to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal,, is based."
6. This Tribunal has respectfully been consistently following the above decision since its pronouncement. In view of the authoritative decision of their Lordships of the Supreme Court it is unnecessary to " consider the earlier decisions cited by Mr. Badaruddujja.
7. In regard to his third contention namely whether the labour laws are applicable to the Nursing Home, Mr. Badaruddujja sought to argue that the Standing Orders are not applicable to it. He, however, failed to satisfy me on commercial establishment employing not less a newer and to industrial establishments employing not less than fifty workmen. It is an admitted position that the Nursing Home employs over 200. {{FOOT NOTE}}
(1) PLD 1978 SC 207 {{FOOT NOTE}} ' persons. Furthermore, it is admittedly run on commercial lines and is a limited Company.
8. It was next contended by Mr. Badaruddujja that as Ordinance LI of 1979, has excluded the application of the provisions of the I. R. O. To hospitals, nursing homes, etc., the grievance petition of Zafar Iqbal was not maintainable and could not legally be entertained. The precise argument was that section 25-A, I. R. O, is in the nature of procedural law and since an amendment in procedural law acts retrospectively. On the promulgation of the aforesaid Ordinance on 20th September, 1979, the right either to file or to continue a grievance petition by an employee of a nursing home, hospital, etc., was lost. This identical issue was examined at some length by this Tribunal in the case of Mohammad Yameen v. Pakistan Security Printing Corporation, decided on 11th February, 1980 and it was held, on the basis of the provisions of clause (3) of Standing Order 12 and section 6 of the General Clauses Act, 1897 and on the authority of the decision of their Lordships of the Supreme Court in the case of Saeed Ahmad v. State (1) as to the effect of repeal or amendment of a statute on the substantive rights of the parties to litigate that the amending statute had prospective and not retrospective effect As such, I find no force in this contention of Mr. Badarudduja.
9. It finally falls to be considered whether there was tangible evidence in the domestic inquiry establishing the misconduct of Zafar Iqbal. The charge-sheet against him contained these allegations, firstly, that he had used abusive and filthy language during working hours, within the premises of his place of duty and in the presence of his superior, Dr. Zaidi, secondly, that when Dr. Zaidi remonstrated with him for his improper conduct he misbehaved with him and that finally he even attempted to assault Dr. Zaidi, I have been taken through the evidence recorded in the domestic inquiry, particularly, the evidence of Dr. Zaidi. It is clear from his evidence and that of the other witnesses examined in the domestic inquiry that Zafar Iqbal did use extremely vulgar and filthy language during working hours. This language was used by him in the technician's room which adjoins the Surgeon's room Even the learned Labour Court was satisfied that Zafar Iqbal had used abusive and vulgar language which was heard by Dr, Zaidi. I am further satisfied that Zafar Iqbal used insulting and improper language towards Dr. Zaidi, who was his superior officer, and misbehaved with him. It appears from the evidence given by Dr. Zaidi in the domestic inquiry conducted by Brig. Irani that when the former remonstrated with Zafar Iqbal for using abusive language in the hospital, Zafar Iqbal, in an extremely rude and menacing manner told him- {{URDU TEXT}} ' Dr. Zaidi was exhaustedly cross-examined by Zafar Iqbal but Dr. Zaidi remained unshaken in his evidence. Substantial corroboration to his testimony has been furnished by the witnesses examined in the domestic inquiry Dr. Nadeem Hasan and Ward Boy Maarruf Dr, Nadeem Hasan has testified that when he went to the technician's room on hearing Dr. Zaidi saying in a loud voice : "do not abuse in front of me, and don't do it again", he saw Zafar Iqbal addressing Dr. Zaidi in a raised and rude voice words such as and {{URDU TEXT}} {{FOOT NOTE}}
(1) PLD 1964 SC 266) {{FOOT NOTE}} ' although he does not recollect what exactly were the other words used by him. Dr. Nadeem Hasan further has testified that he directed Zafar Iqbal to stop talking like that. The learned Labour Court although it has held that Zafar Iqbal did use unbecoming and harsh words, such as and {{URDU TEXT}} to his superior. Dr. Zaidi, took the view that it was just temperamental talk which did not amount to misconduct. Reliance for this view was placed on the decision of the Punjab Labour Court in the case of Pianrex Ltd. v. Kazim Ali Shah (I) which just makes the bald statement that temperamental talk cannot be said to be misconduct, without any discussion as to what is 'temperamental talk' and under what circumstances it does not constitute misconduct. The learned Labour Court should have considered the nature of the allegation which were established against Zafar Iqbal and were not seriously disputed by him, and examined the issue whether the use by him of abusive language during working hours in an hospital and addressing his superior in a dergatory manner constituted misconduct or not, even if the charge of actual or threatened assault on Dr. Zaidi was not established. To describe the action of Zafar lqbal as mere temperamental talk appears to me to be wholly misconceived. The use of abusive language in the hospital premises and that too in a room adjoining the Surgeon's room cannot but be considered subversive of discipline. The misconduct of Zafar Iqbal is further compounded and aggravated by his not feeling repentant when he was remonstrated by Dr. Zaidi on the use of vulgar language and on the contrary using derogatory mode of address to his superior. Riotous or disorderly behaviour at an establishment or any act subversive of discipline constitutes misconduct falling under sub- clause (h) of clause (3) of Standing Order 15 and entails punishment of dismissal. It was held by this Tribunal in the case of Ghulam Rasool v. District Manager, Government Transport Service (2) that if a workman acts in a naughty and insolent manner to his superior this will be covered by the term 'wilful insubordination'. It will also in my respectful opinion, constitute an act grossly subversive of discipline. It will be impossible to preserve peace, quiet atmosphere and discipline in a sheltered institution like an hospital, which are so essential for its proper and efficient running. If employees can with impunity use filthy and vulgar language and address their superior in a naughty and insulting manner.
10. Mr. S. I. Siddique, the learned counsel for Zafar Iqbal, however, attempted to argue that no proper inquiry was held and that the Enquiry Officer. Brig. Irani, was partial towards Dr. Zaidi, who was his friend. The second allegation is based on two letters written by Zafar Iqbal to the management, one dated 15th June, 1976 and the other dated 16th June, 1976, complaining against the Enquiry Officer and requesting that he be replaced. It may, however, be pointed out that even the first letter was written after the material evidence against Zafar Iqbal had been recorded by the Enquiry Officer.
Moreover all that has been stated in the letter is that Brig. Irani is a friend of Dr. Zaidi and often goes about with him. The request for change of Enquiry Officer was rightly refused by the management on the ground that the Enquiry Officer had been appointed on 11th June, 1976 and some enquiry had already been made by him and hence the allegation against him appears to be an afterthought and without substance. The second letter, dated 16th June, 1976, contains more specific {{FOOT NOTE}}
(1) 1978 PLC 173 (2) 1970 PLC 397 {{FOOT NOTE}} ' allegations. The first is that the inquiry Officer was not properly recording the statement of the witnesses but was distorting their evidence and recording in his own way what was being stated by them. However, this allegation stands wholly un-substantiated. It also repeated the allegation that Dr. Zaidi is a friend of the Enquiry Officer and both of them come and go together. Again, apart from the bare allegation, there is no evidence to substantiate at the said allegation. No doubt after the rejection of his second letter. Zafar Iqbal boycotted the enquiry proceedings, but even if the enquiry proceeding after the boycott are to be excluded, there is sufficient material to establish misconduct on the part of Zafar Iqbal.
11. It was also argued by Mr. Siddiqui, and it may be pointed out that this argument found favour with the learned Labour Court that the important witness Baboo. Lal was not examined. Whatever may have been the reason for not examining Baboo Lal, it may be pointed out that he was a witness only in regard to the alleged assault on Dr. Zaidi, which is said to have occurred in a second and subsequent incident. The Enquiry Officer has not referred to this second incident in his report.
Furthermore, the second show-cause notice also made no mention of it. As such, the non- examination of Baboo Lal, on the one hand, does not falsify the evidence regarding the first incident, and on the other hand, does not benefit Zafar Iqbal in his defence.
12. The learned Labour Court has also commented adversely on the Enquiry Officer's report and as pointed out that he has failed to discuss the evidence led before him. This criticism of the Enquiry Officer's report is undoubtedly justified but merely by reason of this omission, it would not be justifiable to set aside the order of dismissal in respect of Zafar Iqbal, since the evidence in the domestic enquiry, which I have examined at some length, clearly established gross misconduct on his part.
13. Mr. S. I. Siddiqui finally assailed the enquiry proceedings on the ground that though, the enquiry officer is said to have submitted his report on 17th June, 1976, the proceedings continued even on 18th June, 1976. However, no question was put to Brig. Irani that any proceedings were conducted by him on 18th June, 1976. Furthermore, Mr. S. I. Siddiqui was unable to point out to me any proceeding of the enquiry which were held on that date, In fact, it appears from the order of dismissal in respect of Zafar Iqbal dated 17th July, 1976, that the enquiry against Zafar Iqbal was conducted on 15th, 16th and 17th June, 1976 only.
14. The upshot of the above discussion is that Appeal No, KAR586 of 1979 by the Nursing Home is allowed and Appeal No, 60 of 1980 of Zafar Iqbal is dismissed. Order accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.