DECISION This is an appeal against an award of the learned Chairman of the Second Sind Labour Court, Karachi, dated the 26th of January 1971, whereby the learned Court ordered the re--instatement of Sirajul Hassan Hashmi (hereinafter called the respondent) with "all the benefit of employment and continuity of service". The facts giving rise to the present appeal briefly put are these.
2. The respondent was employed in the Company of the appellant on 3rd March 1969. At the the of the employment the respondent gave his age as 18 years. Under a settlement arrived at on 3rd January 1970, between the Union and the Management all those, who were Matriculates were entitled to some better pay. The respondent in proof of the fact that he was a Matriculate, filed this Matriculation Certificate. According to the Matriculation Certificate, the respondent was borne on 26th June 1953. On the date of employment, therefore, the respondent was only 15th years and 9 months old. 'The respondent was charge-sheeted for misconduct and after an enquiry he was dismissed from service on 22nd January 1971.
3. The respondent made an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), challenging his dismissal on various grounds. The learned Labour Court came to the conclusion that there was hardly any material to hold that the respondent was dismissed from service as a result of his Union activities. The learned Court, however, came to the conclusion that the finding of the Domestic Enquiry was perverse and on that conclusion ordered the re-instatement of the respondent.
4. Mr. Mahmood A. Ghani, the learned representative for the appellant contended, in the first place, that the as and is based on misconception of law and, therefore, bad in law. He submitted that section 34, of the Factories Act of 1934, relates to weekly hours that an adult is required to put in. It is true that section 34, reproduced in the award, does not find any place in the Factories Act of 1934.
5. In the second place, Mr. Ghani contended that the reasons for the conclusion that the Domestic Enquiry was perverse are based merely on conjectures and surmises, He submitted, in this connection, that the grounds given for the conclusion that the finding was perverse was available only if the learned Court was sitting in appeal over the finding of the Domestic Enquiry. It was submitted that the finding of the Domestic Enquiry could not be held to be perverse simply because the Manage--ment accepted the age of the respondent as given by him at the the of his employment and did not ask him to produce the Matriculation Certificate. The fact that sometimes School Certificates do not truly disclose the age of person is also no ground for holding that the finding of the Domestic Tribunal was perverse. A finding of a Domestic Enquiry can be said to be perverse only if no reasonable person could arrive at such a finding. The mere fact that the Enquiry Officer accepted the age given in the School Certificate in preference to what is stated by the respondent, cannot be a ground for holding that the enquiry was perverse or against the principle of natural justice.
6. After hearing the learned representatives for the parties, I have come to the conclusion on another ground that the enquiry was not fair. The Enquiry Officer in his report came to the following conclusion:- "In the presence of Matriculation Certificates, the automatic proof of age will be this document and no other document can be preferred to it."
7. The Enquiry Officer ignored to attach any value to the Medical Certificate produced by the respondent along with his explanation to the show-cause notice. He stated in his reply to the show-cause notice that he has submitted a Medical Certificate given by Dr. Ansar Ahmad in support of his statement that at the the when he was employed he was 18 years of age. The Medical Certificate is not on the record of this case and no explanation has been given by the Management for not producing the same before the learned Labour Court. 'The Medical Certificate was an important piece of evidence in support of the statement of the respondent. The failure on the part of the Enquiry Officer to take into consideration the Medical Certificate greatly prejudiced the respondent. It cannot, therefore, be said that the Domestic Enquiry was fair.
8. The learned Labour Court came to the conclusion that furnishing of wrong age will not amount to misconduct, as defined in section 3(a) to (i) of Standing Order 15, of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). Misconduct has not been defined in the Standing Orders Ordinance. Mis--conduct means `improper conduct'. In this connection, reference may be made to a Supreme Court decision in the case of Pro--vince of East Pakistan v. Muhammad Sajjad Ali Mazumdar (1962 PLC 528 What is a misconduct, will depend upon the circumstances of each case. Standing Order 15 of the Standing Orders Ordinance is not exhaustive of the cases of misconduct. In this connection reference may be made to an unreported case of the Supreme Court of Pakistan in Civil Appeal No. K-52 of 1964 (Karachi Steam Roller Flour Mills Limited v. Karachi Steam Roller Flour Mills Employees'
Union). In that case, S. A. Rahman, J. Who delivered the judgment of the Court, observed that Order 13 of the Standing Orders was not exhaustive. In my opinion, the conduct of an employee, which may lead to criminal prosecution of his employer, would amount to misconduct. The admitted position is that the respondent if less than 18 years of age could not be employed by the Management without a Fitness Certificate by a Certifying Surgeon that the respondent was fit for full day's work in the Factory. The employment by the Management of an adult without a certificate by the Certifying Surgeon is an offence under the Factories Act of 1934 and is punishable under section 60 of the said Act. The at of an employee, which may entail criminal prosecution of its employer, would amount to misconduct. In this connection Mr. Ghani relied on Pearce v. Foster ((1886) 17 Q B D 536). He relied on the observation of Lopes, L. J. It runs as under:- "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the the, but also if he discovers it afterwards, in dismissing that servant."
9. I would hold that furnishing of wrong age by and employee, if proved, which may entail criminal prosecution of C its employer, would amount to misconduct.
10. Having come to the conclusion that the Domestic Enquiry was not fair, as the Enquiry Officer failed to take into consideration the Medical Certificate filed by the respon--dent, the order removing him from service, therefore, must be set aside. In this connection, reference may be made to the Steel Corporation of Pakistan Limited's case. In that case Cornelius, C. J. Observed as under:- "If the Industrial Court finds fault with the enquiry or the procedure thereof, its duty would be, while refusing permission to dismiss, to indicate where the fault or error lay, which vitiated the enquiry."
11. It would be open to the Management to hold another enquiry giving an opportunity to the respondent to produce all the evidence that he wishes to produce. The Enquiry officer should give his finding one way or the other only after giving due weight to the medical evidence that the respondent may produce.
The order of the learned Labour Court modified to this extent that the respondent will be entitled to back benefits only if the Enquiry Officer finds the respondent not guilty, of the misconduct he is charged with. The respondent is re-instated and would be entitled to Rs. 150.00 as costs. If the enquiry is not held within three weeks of this order, it would be deemed that the respondent is not guilty of the charge.