' AJMAL MIAN, J.-The petitioner through this petition has impugned the orders, dated 15th May, 1982 and 5th August, 1982 passed by respondent No, 2 and respondent No, 1 respectively dismissing the petitioner's application under section 25-A of the I. R.
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2. The brief facts leading to the filing of the above petition are that the petitioner was employed as a technical assistant in the respondent No, 3's establishment. He was served with a charge-sheet dated 10th May, 1980 for the misconduct; which was replied to by the petitioner by an explanation dated 12th May, 1980. Upon receipt of the above explanation, respondent No I found the same as unsatisfactory, and, therefore, ordered a domestic enquiry, which was held from 26th May, 1980 upto 28th June, 1980. Respondent No, 3 in the above enquiry examined (1) M. H. Siddiqui, (2) Ahsan Jawaid and (3) Noor Muhammad in support of the allegations contained in the charge-sheet, whereas the petitioner examined himself and one Iftikharul Haq in his defence. The Enquiry Officer, Mr. Irshad Khan concluded that the charges were fully established. Upon receipt of the above report of the Enquiry Officer,, the petitioner was served with a second show-cause notice dated 9th July, 1980 and was also given personal hearing by the General Manager (Shipping Design) under whom the petitioner was working. He also submitted explanation in writing running into 27 pages.
However, after considering the same the finding of the Enquiry Officer was maintained and the petitioner was dismissed from service by a letter, dated 17th July, 1980.
' The petitioner being aggrieved by the above dismissal order after serving requisite grievance notice filed an application under section 25-A of the i. R.
0. (Application No, 187/80) in the Court of learned Vth Sind Labour Court at Karachi. In support of the application the petitioner examined himself, whereas respondent No, 3 examined Sultan Ijaz Pervaiz, Manager of the Respondent No, 3's establishment and Irshad Khan the Enquiry Officer. The learned Labour Court held that the Enquiry Officer while conducting the enquiry adopted proper procedure and afforded full opportunity to the petitioner and that the findings recorded by him were proper. Consequently the petitioners above application was dismissed by the above order dated 15th May, 1982.
' The petitioner being aggrieved by the above order filed Appeal No, 'KAR-293 of 1982; which was dismissed by the learned Sind Labour Appellate Tribunal at Karachi by its aforesaid order, dated 5th August, 1982. The petitioner being aggrieved by the above order has filed the present petition.
3. In support of the above petition Mr. Muhammad Shafiq Qureshi, learned counsel for the petitioner has contended as follows :-
(I) That the alleged misconduct does not fall within the ambit of the definition given in clause (h) of para. 3 of Standing Order 15 and, therefore, the impugned orders cannot be sustained.
(ii) Since the full speech was not produced before the Courts below and no independent witness was examined the Courts below were not in a position to examine the entire facts of the case in terms of the Supreme Court judgment PLD 1978 SC 207.
(b) On the other hand, Mr. Makhdoom Ali Khan, learned counsel for respondent No, 3 has submitted as follows :-
(i) That the misconduct proved against the petitioner falls within the ambit of the definition given in clause (h) of para. 3 of Standing Order 15.
(ii) That there was sufficient evidence before the learned 2 Courts below to uphold the finding of the Enquiry Officer.
4. Before taking up the contentions of the learned counsel for the parties, it may be advantageous to reproduce the charges contained in the charge-sheet against the petitioner which read as follows :- "(a) On,5th May, 1980 a team of 18 Malaysian Trade Union representatives sponsored by Government of Sind visited the K. S. E. W. The visitors were accompanied by the Director Labour, Government of Sind and Joint Director Labour, Government of Sind. On conclusion of their visit to K.
S. E W. They were given lunch in one of the Canteens. You were invited along-with the guests.
(b) After the lunch, when the representative of the Malaysian Trade Unionists spoke expressing their appreciation for the hospitality extended to them and also presented a Souvenir of the Team to the K. S. E. W., you stood up and began addressing the visitors. You made derogatory remarks not only against the Management, but also against the Government of Sind and the Government of Pakistan falsely alleging inhuman behaviour on their part toward the workers who according to you were being allegedly deprived of their legitimate rights and privileges. Continuing your speech, you made baseless accusations against the Government of Sind and various functionaries of the Government of Pakistan, falsely .
(c) Accusing them of forcing workers to work under most Barbari working conditions and added that everything which was shown \to the visitors was false and stage-managed as against the inhuman working conditions prevailing. You also requested the visiting Malaysian delegates to take a note of the inhuman behaviour of Government of Sind and Government of Pakistan toward workers and to carry this message to the Malaysian Government and to the workers in Malaysia to inform them of so-called actual conditions prevailing in Pakistan in general and in the Karachi Shipyard and Engineering Works in particular.
(d) By delivering the said speech unauthorisedly before foreign delegates and indulging in this hostile outburst against the Management and decrying the Government of Sind and Government of Pakistan before foreign representatives you have committed an act subversive of discipline which is tantamount to gross misconduct on your part."
' Though the verbatim speech delivered by the petitioner at the lunch was not produced but the substance of the speech was inter alia proved by documentary evidence as well as by oral evidence referred to by the learned Sind Labour Appellate Tribunal in its order, namely, the complaint made by Mr. M. H. Siddiqui, Deputy Manager (Works) on the very day and his deposition before the Enquiry Officer. It may be advantageous to reproduce the portion of the deposition referred to in the above order of the learned Sind Labour Appellate Tribunal, dated 5th August, 1982 which reads as follows:- "Pakistanis and Malaysians are brothers and if any Pakistani is in trouble then that should be naturally felt in Malaysia.
' In Pakistan are suffering cruelties since last 30 years. Their working conditions are extremely poor and their salaries are so meagre that they cannot properly feed their children. Their dwellings are dirty and without necessities of life. Their correct position can be assessed from their weak bodies and discontented/depressed faces. Whatever, has been shown to delegation is just an eye-wash and exhibitory. He further stated that treatment also with the workers of K. S. E. W. Is extremely cruel, intuitive and inhuman and the Government of Sind, whose officers are present, are equal participant in this cruel and barbaric system. In the same way Mr. Akhtar Alam also blamed Government of Pakistan for not doing anything for labourers. Mr. Akhtar Alam particularly addressing the members of Malaysian Trade Union delegation, who knew Urdu, asked to note all these things and communicate to Malaysian Government such that they pressurise and influence Government of Pakistan for improvement of conditions of labourers in Pakistan."
' Both the Courts below have held that the above charges reproduced hereinabove were fully established before the Enquiry Officer. No infirmity in conducting the enquiry or in the finding of the Enquiry Officer was found by both the Courts.
5. Having dealt with the question of fact, we may revert back to the contentions of Mr. Muhammad Shafiq Qureshi, learned counsel for the petitioner that the alleged misconduct does not fall within the ambit of clause (h) of para. 3 of Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and, therefore, the impugned orders cannot be sustained, it may be pertinent to quote hereinbelow in extenso the definition given in the above clause, which reads as follows "(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline."
' It has been contended by the learned counsel for the petitioner that in order to constitute an act subversive of discipline on the part of a workman, it is incumbent on the part of an employer to prove that the act complained of was riotous or disorderly and was committed during working hours at the establishment. In other words, it was canvassed at the bar that the word 'or' appearing after the words establishment and before the word "any act" in above clause (h) should be read as "and" and not as "or". In furtherance of the above submissions he has referred to the following cases :-
(i) Pakistan International Airlines Corporation, Karachi v. Junior Labour Court No, IV, Karachi, PLD 1978 SC 239. In the above case the facts were that the petitioner was an air-hostess. She had left her base of duty without having prior permission as required under the Service Rules, nor she left her address with the employer P. I. A. Before leaving the base as required under the rules. She was charge-sheeted. After necessary enquiry she was dismissed. The petitioner after serving requisite grievance notice filed an application under section 25-A of the I. R.
0. Which was allowed on the ground that the alleged misconduct on the part of the petitioner was of a minor nature not warranting dismissal from the service. The appeal filed against the above order was dismissed. After that a writ petition challenging the above orders was filed which was .Dismissed by a Division Bench of this Court and it was held that the alleged misconduct was of the nature for which under Standing Order 15(1) (ii) (a) the punishment of reprimand or fine could have been imposed. Against the above judgment of the High Court a petition for leave was filed. The honourable Supreme Court dismissing the above petition for leave observed as under as to the scope of the above-quoted clause (h). ; "Coming now to clause (h), the words "any act subversive of discipline in it must be construed ejusdem generis with the preceding words namely, "riotous or disorderly behavior". These words, in ordinary parlance mean "disturbance of peace and lawless behavior", respectively. Therefore, the words "act subversive of discipline" must also be construed in that context. They reflect an act which has some criminality in it. We fail to see how the mere failure to take permission can be regarded as an act or omission of this nature. Again, the third respondent was not charged for an act subversive of discipline and, therefore, it was inappropriate to contend that her case was covered by this clause. Standing Order .15 enumerates acts and omissions which either fall under subsection (I) (ii) or under subsection (3) for which different punishments are prescribed. It will be out of context to regard a violation of clause (1) (ii) (a) as one converted by clauses (a) and;
(i) of subsection (3). Accordingly, the High Court was right in concluding, as it did, that it was a case of a violation of a Rule and not misconduct."
' It may be noticed that the honourable Supreme Court has not held. That the word "or" appearing between the above words should be read as "and" but has held that the words "any act subversive of discipline" must be construed ejusdem generis with the preceding words namely, riotous or disorderly behaviour appearing in the above clause (h)
(ii) Abdul Ghani v. M. P.
0. WAPDA Lahore and others 1969 PLC 48, in which the learned Industrial Court West Pakistan while construing Standing Order 13 (3) (h) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 which was parallel provision to the present clause (h) of para. 3 of Standing Order 15 held that individual and private quarrel between the two workers were not governed by the definition of the misconduct given under the above clause.
' On the other hand Mr. Makhdoon Ali Khan learned counsel for respondent No, 3 has referred to the following cases.
(h) Gharo Textile Mills Limited v. Muhammad Sultan 1980 PLC 999, in which the learned Sind Labour Appellate Tribunal while construing above clause (h) held that an act subversive of discipline need not necessarily be committed during the working hours or in the establishment. It was further held that waylaying Security Incharge on way from round of the factory to residential quarters within the labour colony abusing and insulting and assaulting with reference to his duties and performance would affect employer in his business seriously and would also prejudice factory discipline and would constitute act subversive of discipline.
(ii) ulistan v. Sind Labour Appellate Tribunal, Karachi and 2 others 1982 PLC 1007. In the above case a Division Bench of this Court held that section 25-A of the I. R.
0. Should be read as a whole. Reliance was placed by Mr. Makhdoom Ali Khan on the meaning of the word 'or' given in Black's Law Dictionary, 5th edition, quoted in the above judgment which reads as follows :- "A disjunctive particle used to express an alternative or to give a choice of one among two or more things. The word 'or' is to be used as a function word to indicate as alternative between different or unlike things."
We are inclined to hold that in order to constitute an act subversive of discipline, it is not necessary that it should be riotous or disorderly. The above clause (h) provide two categories of the acts which may constitute a misconduct, namely, riotous or disorderly behaviour during working hours at -the establishment or any act subversive of discipline. In other words, the word 'or' appearing between the words "riotous of disorderly behaviour during working hours at the establishment" and the words "any act subversive of discipline" is to be read disjunctively. The only qualification is that the words "any act subverive" must be construed ejusdem generis with the words preceding to it.
6. It was also vehemently urged by Mr. Muhammad Shafiq Qureshi that the above clause is attracted only during working hours of the establishment and that the working hours are defined in sections 34, 36 and 37 of the Factories Act and that the lunch hours are not covered and hence the above clause was not attracted to it may be advantageous to reproduce herein below the above sections which read as follows :- "34. Weekly hours.-No adult worker shall be allowed or required to work in a factory for more than forty-eight hours in any week, or, where the factory is a seasonal one, for more than fifty hours in any week : Provided that an adult worker in a factory engaged in work which for technical reasons must be continuous throughout the day may work for fifty six hours in any week.
36. daily hours.
Provided that a male adult worker in a seasonal factory may work the hours in any day.
37. intervals for rest.
(a) so that no period shall exceed six hours and so that no worker shall work for more than six hours before he has had an interval for rest of at least one hour ; or
(b) so that no period shall exceed five hours, and so that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour, or for more than eight and a half hours before he has had at least two such intervals."
' It may be noticed that section 34 provides forty-eight hours as maximum working hours per week in a normal factory, whereas for a seasonal factory fifty hours for a week, furthermore, section 36 gives the maximum daily working hours, namely nine hours in a day in a normal factory and ten hours in a day in a seasonal factory, whereas section 37 regulates working of the daily working hours by providing intervals.
In our view there is a distinction between factory working hours and the working hours of a workman. The time consumed in a lunch break may not be included while computing the working hours of a particular workman but it cannot be denied that the lunch intervals fall within the working hours of the factory. In order to attract the above clause (h) what is required is that the riotous or disorderly behaviour should be committed during the working hours at the establishment, which may not be working hours of the workman concerned.
Without going in to the question whether an act subversive of discipline can be committed in terms of the above clause outside the working hours of the establishment we are inclined to hold that in the instant case the act complained of was committed during the working hours at the establishment in terms of the above clause.
7. Adverting to the second contention of Mr. Muhammad Shafiq Qureshi that the petitioner's speech in verbatim was not produced and no disinterested witness was examined and, therefore, the two Court below could not consider the entire facts of case, it may be observed that he has referred to the case of Crescent Jute Products Ltd.. Jaranwala v. Muhammad Yaqub etc. , in which the honourable Supreme Court of Pakistan while construing subsection (5) of section 25-A of the I. R.
0. Held that the Labour Court has the jurisdiction to go behind the dismissal order and to see 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 on law.
In our view the requirements of the above Supreme Court judgment have been complied with by both the Courts below. They have not only examined the question of conducting of the enquiry fairly but also the merits of the allegation of misconduct. The fact that the petitioner's speech in1 verbatim was not produced, in our view, is of no consequence. It is not the case of the petitioner that he had made a written speech or that he had circulated the speech among the persons attending the lunch in question. The substance of the speech as pointed out hereinabove is proved by the documentary evidence as well as by oral evidence. The nature of the speech in our view was such which would amount to an act subversive of discipline as admittedly the above lunch was attended by 52 selected shop-stewards of respondent No, 3 establishment including the petitioner besides the Malaysian Delegation, representatives of the Government of Sind departments concerned and of respondent No, 3 establishment. The inflammatory speech made by the petitioner could cause indiscipline.
8. For the aforesaid reasons the petition is dismissed, but there will be no order as to costs. PLD 1978 S 207