1. RAIDER ALI PIRZADA, J.--The petitioner through this petition has impugned the order of dismissal by the respondent No.2 on account of misconduct as recommended by the respondent No.3.
2. The brief facts leading to the filing of the above petition are that the petitioner was employed as a Staff Nurse in the respondent No.1 Corporation and the Corporation provided an accommodation to her. It has been averred that in the year 1979 the petitioner had requested the respondent No.1 that the present accommodation provided to her was not suitable looking to the status and the job assigned to the petitioner. In spite of taking any action on the application of the petitioner, the respondent No.1 started harassing and compelling the petitioner to vacate and hand over the present accommodation and shift to a single room quarter which was actually meant for security guard and was not suitable looking to her status. When the administration pressed her hard for vacation of the accommodation she filed a Civil Suit No. 3260 of 1982 in the Court of XXI Civil Judge IInd Class, Karachi for permanent injunction. It is the petitioner's case that the filing of the suit against the respondent No.1 annoyed the superiors and they started other means to compel and force the petitioner to withdraw the suit otherwise she would be involved in great difficulty and even might loose the job. She was served with a charge-sheet, dated 8th September, 1982 for the misconduct, which was replied to by the petitioner by an explanation, dated 10-9-1982. Upon receipt of the above explanation respondent No.1 found the same as unsatisfactory and, therefore, ordered a domestic enquiry which was held. The respondent No.1 in the above enquiry examined
(1) Rehmat Khan, (2) Sabghat Ullah, (3) Muhammad Malik, (4) Arshad, (5) Muhammad Siddiq and
(6) Gul Muhammad in support of the allegations contained in the charge-sheet, whereas the petitioner examined in her defence. The Enquiry Officer concluded that the charges were fully established. Upon receipt of enquiry report, dated 26-9-1982 the petitioner was served with a second show-cause notice, dated 6-10-1982 and was also given personal hearing by the General Manager under whom the petitioner was working. She also submitted an explanation in writing.
3. However, after considering the same, the finding of the Enquiry Officer was maintained and the petitioner was dismissed from the service by a letter, dated 12-10-1982. She also submitted representation to the respondent No. 1. As she did not receive any reply, the petitioner filed the above petition.
4. Mr. A.R. Mirza, learned counsel for the petitioner has contended as follows:
(i) 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 order cannot be sustained.
(ii) The direct petition is being filed under Article 9 of Provisional Constitutional Order 1981 as neither the N.I.R.C. Has jurisdiction to entertain the case nor the Labour Court. The learned counsel has further contended that there is no other civil remedy available to the petitioner under any law in view of the provisions of Pakistan Essential Services (maintenance) Act of 1952 (hereinafter called the said Act).
5. On the other hand Mrs. Majida Rizvi, the learned counsel for the respondents 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 the Standing Order 15.
6. (ii)The petitioner should have taken steps to institute the proceedings as provided by section 7 of the said Act.
7. (iii)The Constitution petition is not maintainable.
8. Before taking up the contention of the learned counsel for the parties, it is advantageous to reproduce the charges contained in the charge-sheet against the petitioner which reads as follows:- "That on 23-8-1982 during evening hours while Assistant Inspector Watch and Ward namely Mr. Rehmat Khan was going to watch Kabbadi game. He saw your children playing with the plants planted by the President of Pakistan. He prevented the children from spoiling these plants when you arrived there. Mr. Rehmat Khan explained to you that the plants had to be protected so that they may grow on that you used abusive language towards him in an insulting tone.
9. That act of your amounts to misconduct, it being subversive of discipline."
10. The above charges reproduced hereinabove were fully established before the Enquiry Officer. No infirmity in conducting the enquiry was alleged in the petition.
11. We may revert back to the contentions of Mr A.R. Mirza, 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 order cannot be sustained, it may be pertinent to quote here in below the above clause, which reads as under:- "(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline."
12. It has been contended by the learned counsel for the petitioner that in order to constitute an act of 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 subversive of discipline and was committed during working hours at the establishment. His submission is that the word 'or' appearing after the words establishment and before the ward 'any' and not as 'or'. In furtherance of the above submission he has referred to the following cases:-
(I) P.I.A.C. v. Junior Labour Court IV, Karachi PLD 197, SC 239. In the above case the fact were that the petitioner was an airhostess. She had left her base of duty without having: prior permission as required under the Services Rules, nor she left her address with the employer before leaving the base as required by the Rules. She was dismissed. She after serving requisite grievance notice filed an application under section 25-- of the I. R.O. Which was allowed .On the ground that the alleged misconduct was of a minor nature not warranting dismissal from the service. The appeal filed against the above order was dismissed. After that a Constitution petition challenging the above orders was filed which was dismissed by a Division Bench of the Court. Against the above judgment of the High Court, a petition for leave to appeal was filed. The Hon'ble Suprer:4: Court while dismissing the above petition for leave observed e a under as to the scope of the above-quoted clause (h): Coming now to clause (h) words any act subversive of discipline in it must be construed ejusdem generis with the preceding words namely, riotous or disorderly behaviour. These word in ordinary parlance mean disturbance of peace and law less behaviour, 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 omission of the 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.
13. Standing Order 15 enumerates acts and omissions which either fall under subsection MOO or under subsection (3) for which different punishments are prescribed. It will be out of context to regard a violation of clause (i)(ii)(a) as one covered by clauses (a) and (h) of subsection (3). Accordingly, the High Court has right in concluding as it did, that it was a case of violation of a Rule and not misconduct."
14. It may be noticed that the Hon'ble 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 contstrued ejusdem generis with the preceding words namely riotous disorder behaviour appearing in the above clause (h).
15. (ii)Muhammad Anwar Bhatti v. Pak. American Fertilizers Ltd. 1964 CLC 41 in which the learned Industrial Court West Pakistan, Lahore while construing Standing Order 13(3)(h) of the Industrial and. Commercial (Standing Orders) Ordinance, 1960 which was a parallel provision to the present clause (h) of para. 3 of Standing Order 15 held that any act subversive of discipline must be one which affects the discipline of other workmen and must be done by a workman in the capacity of a workman and not in his private capacity and must adversely affect the employer in his business, property or reputation. It was also held that the first part of the clause obviously did not apply, because the incident took place in the housing colony some 2 miles away from the establishment and not within the working hours.
16. (iii)Abdul Ghani v. M.P.O., 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, held that individual and private quarrel between the two workers were not governed by the definition of the misconduct given under the above clause.
17. Apart from the above cases, in Gharo Textile Mills Ltd. v. Muhammad Sultan 1980 PLC 999 the learned Sind Labour Appellate Tribunal while construing above clause (h) held: "A bare perusal of the above clause makes it abundantly clear that the condition of 'during working hours on the establishment' is applicable only to riotous or disorderly behaviour but not to an act subversive of discipline. An act may be subversive of discipline as will be presently shown, even though may not have been committed during office hours or on the establishment. It would not be reasonable interpretation of the law or in harmony with the object of the Statute to exclude such acts from the pale of misconduct for the purpose of taking disciplinary action under sub-clause (h)."
18. In the same case it has been further held: "In the instant case, as already pointed out, the act established against the respondent-workman was that he waylaid the Security In charge, while the latter was on his way from rounds of the factory to his quarter within the labour Colony of the Mills and not only abused and insulted him but also assaulted him and charged him with being a stooge of the company. It is thus, clear that the assault and the attack on the Security In charge was by reason of his position under the company and the functions which he was performing therein. The misconduct of the respondent thus, was directly linked to the maintenance of discipline in the company "and could have serious repercussions on such discipline and on the working of the company. I am, therefore, convinced that it was an act which was clearly subversive of discipline falling under Standing Order 15(3)(h)."
19. 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) provides two categories of the acts A 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 or disorderly behaviour during working hours at the establishment' and the words 'any act subversive of discipline' is B to be read disjunctively. The only qualification is that the words 'any act subversive' must be construed ejusdem generis with the words preceding to it.
20. It was also vehemently urged by Mr. Mirza, that the above clause is attracted only during working hours of the establishment.
21. In our view 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.
22. In our opinion, on a plain reading of the clause, the words 'at the establishment' refers not to the place where the act which is riotous or disorderly behaviour of subversive of discipline is committed but where the consequence of such an act manifests itself. In other words, an act where even committed, if it has the one effect of riotous or disorderly behaviour or of subversive discipline at the establishment will amount to misconduct under Standing Order 15 para. 3 clause (h). We are unable to agree that Standing Order 15 para. 3(h) leaves out of its scope an act committed out side though it may result in riotous or disorderly behaviour or subversive discipline at the establishment in question. Such a construction would be quite unreasonable.
23. Reverting to the second contention of the learned counsel for the petitioner that neither the N.I.R.C.
24. Has jurisdiction to entertain the case nor the Labour Court and there is no other civil remedy available to the petitioner. It is common ground that section 6 of the said Act and the Rules of 1962 are self-contained and override the provisions of the other enactments. Section 5(I) of the said Act provides that any person engagement in any employment or class of employment to which the said Act applies.
25. "5--(1) Any person engaged in any employment or class offences of employment to which this Act applies who-- (a)disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order (for refuses to work to continue to work, whether or not acting in combination with, or under a common understanding of, any other person engaged in such employment), or (b)without reasonable excuse abandons such employment or absents himself from work, or (c)departs from any area specified in an order under subsection (I) of section 4 without the consent of the authority making that order, and any employer of a person engaged in an employment, or class of employment declared under section 3 to be an employment or class of employment to which this act applies who without reasonable excuse:-
(i) discontinues the employment of such person, or
(ii) by closing an establishment in which such person is engaged, causes the discontinuance of his employment is guilty of an offence under this Act.
26. Section 6 (i) of the said Act provides that the Federal Government may make rules regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment declared D under section 3 to be an employment or class of employment to which the said Act applies, reference may be made to the case of K . E. S. C. Ltd. v. N.I.R.C. PLD 1982 SC 113. In this case the facts were that the respondent No.2 was appointed as Data Processing Manager. His services were terminated.
27. Feeling thus aggrieved, he filed an application before the respondent No.1 in which he stated that his services were wrongly terminated and prayed therein that he should be re-instated. The respondent No.1 took cognizance of his grievance and despite the objection by the appellant as to its jurisdiction to grant the relief his prayer was allowed. The appellant filed Constitution petition to challenge the orders of re-instatement. The petition was dismissed. The appellant filed petition for Special Leave to Appeal before the Supreme Court. Leave was granted and the appeal was allowed. The Honourable Supreme Court laid the following dictum: "Section 5 dealt with the cassation of employment either at the behest of the employer or the employee. It would thus, include termination of service according to the terms and conditions, discharge, dismissal, absence or abandonment and retrenchment. The direction issued in terms of Rule 3(2)(d) concerning the termination of employment will also be covered in view of the wide and all embracing language of this section. Any discontinuance of employment has necessarily to be judged from the test laid down in the section namely, that it was 'without reasonable excuse'.
28. Therefore, if the respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termination according to the terms and conditions of service, or by way of dismissal or discharge, was without lawful excuse or not as the expression 'without reasonable excuse' signifies an excuse which is not lawful."
29. In the case of Pakistan Burma Shell Ltd. v. Central Labour Commissioner and other PLD 1982 Kar.
30. 33, a Full Bench of this Court also considered the relevant provision of the said Act and held: "Having reviewed the cases cited or noticed on the questions under consideration and following the view of Dorab Patel, J. In the case of Syed Manzour Ali Rizvi v. Messrs National Bank of Pakistan and 3 others and Shafiur Rahman, J. In the case of General Manager, Heavy Mechanical Company, Texila v. Bashir Malik, Member, N.1.R.C. And the Division Bench decision reported in 1980 PLC 196 on the first question referred to the Full Bench, I am of the opinion that the provisions of all other enactments as regards the wages and other terms and conditions of service case to apply to an employment or class of employment as soon as the notification under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 is issued by the Central Government extending the provisions of the Act to such employment or class of employment and the provisions of other enactments as regards other matters ceases to apply to the extent of inconsistency between them and the provisions of the Act..
31. As regards the second question, I am of the opinion that the effect of introduction of section 7-A in the Act is the same as mentioned above and the provisions of other enactments are effective to the extent mentioned in the answer to the first question.
32. As regards the additional question, I agree with my learned brother Abdul Hayee Kureshi, J. That the same could be considered by the Full Bench and accordingly, I have considered the same and for the reasons already stated. I am of the opinion so far as the disputes relating to wages and other terms and conditions between the employer and employee governed by and under the Act are concerned such disputes could be decided by specified authority which at the relevant time was the Central Labour Commissioner."
33. We are inclined to hold that the petitioner should have taken steps to institute the proceedings as provided by section 7 and in that g event it would have been open to the specified authority to determine as to whether the dismissal was without lawful excuse.
34. As a last resort, it was contended on behalf of the respondents that Constitution petition is incompetent because the petitioner did not avail herself or remedy available to her under the statute. It was also contended on behalf of the respondents that Constitution petition is incompetent as no writ can be issued to a corporation.
35. In the circumstances of this case as narrated above, we do not feel justified to decide the other contentions raised by the counsel of the petitioner as well as the contentions of the learned counsel for the respondents about maintainability of the petition as the petitioner is not entitled to any relief as the order of dismissal seems to be in F consequences with the law.
36. In the result this petition, therefore, fails and is dismissed. In the circumstances of the case the parties will bear their own costs, A. A.