This is an appeal against the decision of the learned Chairman of the First West Pakistan Industrial Court, Karachi, dated 8th October 1969. The impugned order was passed in an application under section 37(2) of the West Pakistan Industrial Disputes Ordinance, 1468 (hereinafter called the repeal` Ordinance) for permission to dismiss the appellant. It was alleged in the application that the appellant was a Bus Conductor, and that his bus was checked on 15th April 1968. It was found that he was carrying 16 passengers without tickets. He was charge-sheeted for misconduct under subsection (2)(i) of section 7 of the Road Transport Workers Ordinance 1961 (hereinafter called the Workers Ordinance). On enquiry, he was found to be guilty of the alleged mis--conduct.
It was contended before, the learned Court that no offence under subsection (2)(i) of section 7 of the Workers Ordinance was made out; inasmuch as he was not guilty of habitual negligence. The learned Chairman disposed of the objection in the following words:- "The learned Representative of the respondent has laid some emphasis ors subsection (2)(i) of section 7, of the Road Transport Workers Ordinance, 1961, and attempted to shove- that the respondent was not guilty of habitual negligence which is the allegation against him in the charge-sheet. The relevant section not only states habitual negligence but also or neglect of work."
3. The learned Court also came to the conclusion that the misconduct does not only constitute' neglect of official duty as conductor of the bus, but also dishonesty and fraud. in terms of subsection (2)(b) of section 7, of the Workers Ordinance.
4. Two point require my consideration, namely, (1) as to whether habitual negligence in subsection (2)(i) of section 7, qualifies "neglect of work" as well, and (2) whether the Industrial Court could make out a new case while considering the application for permission to dismiss a workman. I propose to dispose of these two points separately.
5. The relevant portion of section 7(2)(i) of the Workers Ordinance reads as under :-- "(2) Nothing in subsection (1) shall apply to the case of a worker whose services are terminated on account of his having been found guilty of misconduct.
Explanation.-For the purpose of this subsection ---the following acts and omissions shall be treated as misconduct namely (a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i) habitual negligence or neglect of work".
6. Wahid-ud-Din, J., while considering the similar provision of Standing Order 13(3)(i) to the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, namely, "habitual negligence or neglect of work", observed as under "It appears to me that the view of-the learned Industrial Court in this respect is perfectly correct because the words "negligence or neglect of work" are not used in disjunctive sense. There are very good ground to hold so. Firstly, neglect of work is also a kind of negligence and being of a lesser kind would be covered by it, which has a broader meaning. Secondly, it is a well-recognised principle of law that to carry out the intention of the Legislature, it is occasionally found necessary to use the conjunction "or" and "and" one for the other. Since the sub-clause in question is penal, I am inclined to construe it favourably to the employees. I mould, therefore, hold that the neglect of work mentioned in this subsection must be of a habitual nature:(1965 PLC 304)"
7. I would respectfully adopt the principle laid down by Wahiduddin, J, and hold that no case of habitual negligence V. or neglect of work was made out by the respondent.
8. I would now proceed to take up the second point. It T would be against the principle of natural justice to condemn a person without offering him an opportunity to meet the charge. The appellant was never charge-sheeted for dishonesty x and fraud, in terms of subsection (2)(b) of section 7 of the Workers Ordinance. A perusal of para.6, of the application under section 37(2), of the repealed Ordinance would show that the Enquiry Officer held the respondent (the appellant before me), guilty of the charges of misconduct as defined under subsection (2)(1) of section 7, of the Workers Ordinance. There is nothing on the record to show that the appellant was ever charge-sheeted for dishonesty or fraud or that permission to dismiss him was sought on that ground. In these circumstances permission could not be granted on the ground that the appellant was guilty of dishonesty or fraud.
9. I would, for the reasons given above, allow the appeal and order that the appellant should be re- instated.
10. The last question that requires consideration is as to whether the appellant, in circumstances of the present case should be entitled to the full emoluments since he had been dismissed from service. Since the appeal is allowed only on a technical ground, inasmuch as, it was open to the Corporation to have` charge sheeted. the appellant under section 7(2)(b) 'of the Workers Ordinance, on the same facts on which he was charged under section 7(2)(1),would allow no back benefits.