This appeal is directed against the decision of the learned Vth Labour Court, given on 17-11-1.981, dismissing the grievance petition of the appellant herein against his dismissal from the service of the respondent corporation.
2. The relevant facts for the purposes of this appeal, shortly stated, are that on 13-10-1979, a first report was registered by the F.I.A. Against Mr. Aslam Siddiqi, acting General Manager (Finance), Rice Export Corpora--tion of Pakistan, on the complaint of the Chairman of the said Corpor--ation to the effect that the said Aslam Siddiqi had misappropriated on or about 31-3-1979, a Pay Order for Rs. 20,055.15. The said Aslam Siddiqi is said to be absconding. In connection with the case against Aslam Siddiqi, the appellant herein, who was employed as Assistant Manager in the respondent corporation, was arrested by the F.I.A. On 16-10-1979, and household articles of Aslam Siddiqi, including 2 refrigerators, 1 washing machine, 1 colour T. V. And 1 radio cassette recorder, are said to have been recovered from his possession. One car, two Suzukies and a sum of Rs. 7,000 said to be of Aslam Siddiqi, were also .Recovered by the F.I.A. From the possession of the appellant, The appellant was later, or, 21-10-1979, granted bail by the Special Judge, Anti-Corruption, who has observed in his order that it is not even alleged that the appellant had abetted Aslam Siddiqi in the commission of an offence under section 40S and that the keeping of the articles of an offender is not an offence punishable under P.P.C. However, on 28-11-1979, the appellant was suspended by the respondent corporation in connection with the case of Aslam Siddiqi and on 1-1-1980 he was served with a show-cause notice which reads as follows.
"On receipt of a report from F.I.A./Police a preliminary enquiry was conducted by this office and in consequence of the said enquiry you have been found prima facie guilty of the following misconduct within the ambit of section 15 (3) (b) (o) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 :- It was within your knowledge that Mr. Aslam Siddiqi, former Acting General Manager, R.E.C.P. Was required by the F.I.A /Police to be proceeded against on charges of embezzlement of Corporation's money. The said Mr. Siddiqi was not traceable and therefore, the F.I.A./Police was in search of his movable and immovable property for confiscation to recover the money belonging to R.E.C.P.
Having full knowledge of these facts you are reported to have wilfully removed one car, two Suzukis, two refrigerators, one television set, one radio' cassette player and one washing machine from the residence of said Mr. Siddiqi you are also reported to have managed to have the car of said Mr. Siddiqi disposed of through Sikandar Motors of Tariq Road. These acts of yours have deprived R.E.C.P. Of substantial amount which would have been recovered, through confiscation of the removed articles and the car. Your action thus amounts to fraud and dishonesty in connection with the Employer's business/property as well as wilfully causing loss to Employer's goods or property.
You are, therefore, directed to show cause as to why you should not be dismisses: from service under section 15 (3) (iv) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Your explanation in writing should reach the under. Signed within 14 days from the issuance of this charge-sheet, failing which the contemplated action will proceed against you ex parte."
The appellant submitted a detailed reply on 13-1-1980, to the aforesaid show-cause. Notice wherein he emphatically denied the allegations container in the chow-cause not ice charge-sheet and while admitting that the property and articles specified in the charge-sheet had been recovered by the F.I.A. From his possession or through him, explained that he had collected the said property and articles from the house of Aslam Siddiqi at request of Mrs. Aslam Siddiqi, on account of the fact that Mr. Aslam Siddiqi was stated to have gone to Islamabad and Mrs. Aslam Siddiqi was to leave for Punjab and she had apprehensions that during he absence the said property and articles may be stolen. It was further asserted by the appellant in his said explanation that as soon as the F.I.A contacted him and made enquiry from him be produced the said proper, and articles before the F.I.A. The explanation of the appellant was not considered satisfactory by the respondent corporation which ordered a domestic enquiry be held against him. The enquiry was held by Mr. S A.H. Zaidi, Manager, R.E.C.P., who submitted a detailed report on 31-3-1981, with a finding that the appellant was guilty of the charges of misconduct stated in the charge-sheet and recommended the award to him of a major penalty. On the basis of the said report and after giving the appellant opportunity of personal hearing and also considering the explana--tion submitted_ by the appellant to the second show-cause notice served upon him, the Managing Director of the respondent corporation by his order, dated 28-9-1980, ordered the dismissal from service of the appellant. A formal office order directing the dismissal of the appellant with effect from 28-9-1980, in accordance with the directions of the Managing Director of the respondent corporation was issued on 2-10-1980.
3. The appellant challenged the orders of his dismissal through a grievance petition filed before the learned Vth Labour Court. The dismissal orders were challenged on merits as well as on the ground that they were passed in violation of clause (4) of Standing Order 15 as the show-cause notice/charge-sheet was served upon the appellant much after the expiry of the period specified in the said clause. The respondent Corporation resisted the grievance petition . On the grounds, firstly, that it was not maintainable as the appellant was not a workman for the purposes of the Standing Orders but an officer of the respondent corporation exercis--ing the powers of a Deputy Manager, secondly, that the charge-sheet was served upon the appellant within one month of prima facie case of misconduct on the part of the appellant coming to the notice of the employer, and thirdly that the misconduct of the appellant was duly established in an impartial and independent domestic enquiry. The learned Labour Court upheld the contentions of the respondent corporation including the contention that the grievance petition of the appellant was not maintainable as at the relevant time he was not a workman but an officer exercising the powers of a Deputy Manager. The. Learned Labour Court further observed that admittedly Mr. Aslam Siddiqi was absconding and the property of an absconder can be attached under the provisions of the Criminal Procedure Code and the respondent corporation could recover some of the misappropriated funds from the property belonging to the absconder Aslam Siddiqi. On these findings, it dismissed the appellant's grievance petition.
4. The first issue which was canvassed by the learned counsellor the parties was whether the appellant was a workman as defined in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and entitled to file a grievance petition against his dismissal from service.
It was strongly contended by Mr. Obaidur Rehman's, the learned counsel for the Rice Export Corporation of Pakistan that as the appel--lant was holding the post of Assistant Rice Manager in the respondent corporation. And had also been vested with the powers of Deputy Manager (Disbursement), he does not fall within the definition of "workman" as given in the aforesaid Ordinance. In support of his contention, Mr. Obaidur Rehman's relied upon the decision of this Tribunal in the cases reported as Abdul Qayum v. Cotton Trading Corporation of Pakistan (1979 PLC 513), Johnson & Johnson (Pak.) Ltd v. Zubair Ahmed (1980 PLC 622) and Karachi Transport Corporation v. Muhammad Hafeez Siddiqt (1980 PLC 644). On the other hand, Mr. Malik Muhammad Saeed, the learned counsel for appellant workman, relied upon the following circumstances and pieces of evidence in support of his contention that the appellant was a workman, employed to do manual and clerical duties :-
(a) The admitted position is that not only the procedure provided in the Standing Orders was adopted in charge-sheeting the appel--lant, appointing the enquiry officer, issuing second show- cause notice to the appellant and passing orders of his dismissal, but further specific reference to the Standing Orders was made in the charge-Sheet, the report of the enquiry officer, the order of the Chairman of the respondent corporation directing the dismissal of the appellant and even in the formal orders of dismissal of the appellant dated 2-10-1980.
(b) In the comments submitted by the respondent corporation to the High Court in the Constitutional Petition filed by the appellant, the respondent corporation had tacitly conceded the position that the appellant was a workman for the purposes of the Labour Laws.
(c) The observations made by the High Court in the Constitutional Petition filed by the appellant to the effect that the appellant has statutory remedy by right by way of individual grievance under section 25-A, I.R.O.
(d) .The nature of duties performed by the appellant are clearly of clerical nature.
(e) The contributions of the appellant to the union funds on account of his membership of the workers' union were deducted from his salary by the management under the checkoff system, which further establishes the position that the appellant was workman for the purposes of Labour Laws.
5. Mr. Obaidur Rehman's, the learned counsel for the respondent corporation, strongly contended that the merefact that the procedure of the Standing Orders was adopted in taking action against the appellant would not establish that the appellant was a workman as defined in the Standing Orders if in fact he was not employed to do any clerical or manual work for there is no estopped against the Statute. The conten--tion of Mr. Obaidur Rehman's is undoubtedly correct and the proposition that there can be no estoppel against the Statute is supported by number of authorities of the Supreme Court and the High Courts. How ,s ever, where an, employer chooses to treat an employee and to deal with him as workman for the purposes of the Standing Orders, the burden o establishing that he does not fall within the ambit of workman as defined in the Standing Orders would be on the employer. In the case of Abdu Aziz v. Sind Labour Appellate Tribunal (C. P.
No. D-204/81), it was observed by the High Court :-"We are inclined to hold that if an employer takes action under the provisions of the Ordinance against his employee, the burden of proof is shifted on him to prove that the employee concerned does not fall within the definition of the workman given in the Ordinance, though the charge-sheet was issued, inquiry was held and service was terminated under the provisions of the Ordinance."
6. It is, therefore, to be examined whether the respondent corpora--tion has discharged the burden that the appellant is not a workman as defined in the Standing Orders Ordinance. No chart of duties has been filed either by the appellant or the respondent corporation. Mr. Obaidur Rehman's, however, relied upon the evidence of Sadiq Rana, the Deputy Manager id the respondent corporation, in regard to the nature of duties which the appellant was required to perform and was performing in the respondent corporation. According to this witness the appellant was confirmed as Assistant Manager and was looking after the Disbursing Section in addition to his own duties.
According to the witness, being Incharge of Disbursing Section, the appellant was working on an execu--tive post, sanctioning overtime and supervising the staff working under him in that section.
The witness, in his cross-examination, admitted that the appellant was never promoted as Deputy Manager but was assigned the duties of Deputy Manager in addition to his own duties. The office order assigning the work of Disbursement section to the appellant is dated 4-4-1979. However, long before the appellant was charge-sheeted on 1-1-1980, by an office order, dated 9-10-1979, the appellant was trans--ferred from the Head Office of the respondent corporation to its Pipri office as Assistant Manager. Mr. Muhammad Ahmed Qureshi, the Deputy Manager under whom the appellant was working at Pipri, was examined before this Tribunal at the request of the parties, and he has testified that the nature of duties of the appellant at Pipri included -(1) maintenance of leave account of workers, (2) maintenance of personal files of the workers and (3) dealing with the Rest and Recreation leave and Rest and Recreation allowances of workers.
7. Mr. Muhammad Ahmed Qureshi has testified that at Pipri no staff was working under the appellant and he was himself required to maintain and deal with the registers and files in his charge. He has further testified that at Pipri, the appellant had no administrative powers nor was he authorized to promote any worker or to grant leave to him. The evidence of this witness firmly establishes that at Pipri the nature of duties of the appellant was purely clerical and he was not assigned any administrative or managerial functions. I am, therefore clearly of the B view that at the relevant time when the appellant was charge-sheeted and disciplinary proceedings were initiated against him, he was assigned to perform only clerical work and thus comes within the definition of "workman" as given in the Standing Orders.
8. It was next urged by Mr. Malik Muhammad Saeed that the disciplinary proceedings taken against the appellant where invalid inasmuch as the appellant was not given notice of the misconduct alleged against him within one month of the commission of the act of misconduct coming to the notice of employer, as provided in clause (4) of Standing Order 15. The charge against the appellant, which has formed the basis of his dismissal from service, was that he has wilfully removed 1 car, 2 suzukis, 2 Refrigerators, 1 T. V. Set, 1 radio Cassette Player and 1 Washing Machine from the residence of Aslam Siddiqi, Acting General Manager of the respondent corporation, having the knowledge that he was absconding and was involved in a case of misappropriation of the funds of the corporation. The' charge-sheet does not mention when the said articles were removed by the appellant from the residence of Aslam Siddiqi. However, according to the letter, dated 31-3-1980, from Assistant Director F. I. A. To the Chairman, Rice Export Corporation, the said articles were removed by the appellant from the residence of Aslam Siddiqi on 2-10-1979. 'tee appellant was arrested by the F. I. A. On I7-10-1979 as appears from the letter of that date from the Assistant Director, F. I. A., to the Rice Export Corporation. By his detailed letter, dated 31-10-1979, the Assistant Director, F. I. A., informed the Chairman of the Rice Export Corporation that the appellant had produced 2 Refrigerators, 1 T. V. Set, 1 Radio Cassette Player and 1 washing machine, which he had removed from the house of Aslam Siddiqi and the same had been secured. By the same letter, the Chairman of the Rice Export Corporation was informed that the car and 2 Suzukis removed by the appellant had also been secured. It would thus appear that on or about 31-10-1979, the respondent corporation had full knowledge of the commission of the alleged acts of misconduct on the part of the appellant. Notice of the alleged acts of misconduct thus should have been given to the appellant within 30 days of the receipt of the F. I. A.'s letter, dated 31-10-1979. Furthermore, the appellant who had been arrested by the F. I. A. On 17-10-1979, was granted bail by the Special Judge (Central) by his order, dated 21-10-1979. This fact obviously must have been within the knowledge of the respondent corpora--tion and its officers. However, the charge-sheet was served upon the appellant on 1-1-1980 exactly 2 months after the receipt by the respondent corporation of the detailed letter of F. I. A. Dated 31-10-1979. As such notice of the alleged act of misconduct was not served upon the appellant within the period provided in clause (4) of Standing Order 15 and consequently, the proceedings based upon the said charge-sheet, including the dismissal orders in respect of the appellant would be invalid, as held by this Tribunal in the case of Gul Ahmed Textile Mills v. Amir Badshah (198/0 PLC 1007).
9. The only other point which was canvassed before this-Tribunal by the learned counsel of the pasties. Was whether the charges against the appellant constitute misconduct for the purposes of Standing Order 15. The acts/omissions alleged against the appellant in the charge-sheet are ---.-
(a) That he was aware that the former Acting General Manager, Mr. Aslam Siddiqi, was required by the F.I.A./Police to be proceed--ed against on charges of embezzlement and that the said Aslam Siddiqi was absconding;
(b) That having full knowledge of these facts, the appellant removed certain household articles and 2 suzukis from the house of Aslam Siddiqi as well as 1 car, which he disposed of through Sikandar Motors ;
(c) That by the said acts the appellant has deprived the respondent corporation of amounts which it could have recovered.
10. The finding of the enquiry officer on the aforesaid charges is that by his acts of misconduct the appellant had wilfully caused losses to the respondent corporation. The Chairman of the corporation has also accepted this finding and taken the view that the appellant had caused wilful loss to the respondent corporation by taking from the house of Aslam Siddiqi the aforementioned items of property. Even the learned Labour Court appears to have been influenced by these findings and has observed that the property of an absconder can be attached under the provisions of the Criminal Procedure Code and the respondent corporation could recover some of their mis-appropriated funds from the property of absconding accused, Now, in the first place, the property of an absconder. Can only be attached where a Court is satisfied, after taking evidence, that a person against whom a warrant had been issued by it had absconded or had concealed himself so that the warrant cannot be executed and after a written proclamation requiring the absconder to appear at a specified place and at specified time not less than 30 days from the date of publication of such proclamation had been issued. There is no evidence that any warrant or proclamation under section 87 of Cr. P. C. Was issued in respect of Aslam Siddiqi. As such, when on 2-10-1979, the appellant removed the said property from the house of Aslam Siddiqi, it was not liable to attachment. Even if this property were liable to attachment, T have not been referred to any law whereby the respondent corporation would be entitled to, reimbursement of its losses from the sale-proceeds of such property. Moreover, there is no evidence whatsoever on record to indicate or to suggest that the property which the appellant removed from the house of Aslam Siddiqi was purchased or acquired from the funds which Aslam Siddiqi is said to have misappropriated. In this connection; I may refer to an important circumstance which the Enquiry Officer has taken into consideration in holding the appellant guilty of the charges against him and recommending his dismissal, although that circumstance was not stated in the charge-sheet. This circumstance is the receipt by the appellant of a sum of Rs. 7,000 from Mohammad Jameel Khan, a Junior Clerk in the respondent corporation. This amount was received by Muhammad Jameel Khan from a shopkeeper in Empress Market on account of the sale --proceeds of Rehmat Poultry Farm. It is an admitted position that this amount was handed over by Muhammad Jameel Khan because Aslam Siddiqi was not available. It is claimed by the appellant that he took this amount from Muhammad Jameel Khan for payment to the were of Aslam Siddiqi. The bona fides of the appellant could perhaps be gauged from the fact that he passed a receipt for the amount to Muhammad Jameel Khan. Since the finding of the Enquiry Officer is at least partly based on this allegation against the appellant, for which no mention is made in the charge-sheet, the dismissal orders would be further vitiated, as the employer would be influenced by the finding in regard tp an allegation which does not find place in the charge-sheet served updn the appellant. Even the- other charges against the appellant, as I have shown; are not covered by any of the items constituting misconduct specified in clause (3) of Standing Order 15.
11. In view of the above position, it was sought to be argued by Mr. Obaidur Rehman's that the acts/omissions specified in clause (3) of Standing Order 15 are not exhaustive of the acts/omissions which are to be treated as misconduct for the purpose of the said Standing Order but are merely illustrative. In support of his contention, the learned . Counsel relied upon the decision of my learned predecessor, reported as Opel Laboratories Ltd. v. Workers' Union (1972 PLC 83). He also sought to argue that the words "concern" and "deal" have were connotation and in support of his contention he referred to the definition of these words in Law Terms and Phrases Judicially Interpreted by Sardar Mohammad Iqbal Khan Mokal and :the decision of the Karachi High Court reported as Hazoor Alam v. National Industrial Relations Commission (1974 PLC 161). I have exhaustively dealt with this issue in the recent case of Muhammad Izharul Ahsan Qureshi v.
Pakistan International Airlines Corporation (Appeal No. KAR-610/81 decided on 9th August, 1982), and have held that clause (3) of Standing Order 15 is exhaustive of the fact and omission which can be treated as misconduct for the purposes of the said Standing Order. I have found no reason to change from the view taken by me in that case.
12. The upshot of the above discussion is that I hold that the appellant is a workman for the purposes of the Standing Orders, that notice of the acts constituting misconduct on his part was not given to him within the period provided in clause (4) of Standing Order 15 and that the acts on the basis of which he had been dismissed from service do not constitute misconduct for the purposes of Standing Order 15. 1 would accordingly set aside the impugned order of the learned Labour Court and direct the appellant's reinstatement in service by the respondent corporation. As regards the claim of the appellant for the award of back benefits, I do not find this fit case to award the same to the appellant as the appellant, who obviously must have been aware of the fact that Aslam Siddiqi had absconded, should have immediately brought to the notice of the corporation the fact that he had been asked by Aslam Siddiqi to take charge of the household goods, car and Suzukis, said to have been belonging to Mr./Mrs. Aslam Siddiqi. No doubt he produced this property before the F. I. A., but this was apparently only when the F. I. A., had arrested /detained him. 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.