DECISION ' This is an appeal against the order of learned Presiding Officer, Sind Labour Court No. V at Karachi, dated 8-9-1988, whereby the grievance petition of the appellant was dismissed.
2. The facts of the case, in brief, are that the appellant, who was an employee of the respondents remained absent from duty on 1-4-1985 on the ground of sickness without producing any medical certificate in terms of the settlement arrived at between the union and the respondents, dated 27- 10-1984. However, Mr. Dobash, one of his superiors came to know through his friends in the European Asian Bank that on 1-4-1985, the appellant had appeared in the said bank to give interview for some posting. The appellant was charge-sheeted for making false statement and was put under suspension. Then there was correspondence between the parties wherein the appellant allegedly persistently repeated untrue statement with regard to his absence on 1-4-1985 and also made allegations against his superior, Mr. Dubash. The appellant also filed a civil suit which was decided against him. On 27-5-1985, a fresh charge-sheet was sent to the appellant and after an enquiry, his services were terminated. Aggrieved by this orJer of termination of services, the appellant, after service of grievance notice, filed his grievance petition before the learned Labour Court which was dismissed by the impugned order.
3. The respondents resisted the grievance petition on the ground that the charges of misconduct were proved against the appellant and after due enquiry, his services were legally terminated.
4. I have heard Mr. Hassan Jafri, the learned Advocate for the appellant and Mr. Abdul Hafeez, the learned Advocate on behalf of the respondents and have also gone through the record and proceedings of the case.
5. The main contention of the learned counsel for the appellant is that the appellant had remained on sick leave for one day and he did not attend European Asian Bank for the purpose of any interview and even if it is held that he did attend the European Asian Bank after he felt better on that day, that would not amount to misconduct and would not disprove the averments of the appellant that he was sick on that day. It is further submitted that even if it is held, that he ;emained on leave for one day on false pretext, the misconduct was not of such serious nature as to call for termination of his services. Mr. Abdul Hafeez, the learned counsel for the respondents has contended that the appellant had not been removed from service for remaining absent on false pretext of sick leave on 1-4-1985, but, the enquiry was held against him on other charge-sheet which was for the charges that he persisted in making false statement and that he had made false allegations against his superior.
6. To appreciate the respective contentions of the parties, it may be necessary to refer to correspondence exchanged between the parties. Annexure 'B' produced through the appellant is a show-cause notice, dated 2-4-1985, whereupon he was called to show cause why action should not be taken against him for making untruly statement with respect to his sick leave on 1-4-1985.
Annexure C-1' is a reply of the appellant to this show cause. He has denied the charges and further reiterated that he was sick. He further alleged therein that Mr. Dobash verbally threatened him with dismissal from service if he tried to deny the charges. In letter, C-2', the respondents denied the allegation that Mr. Dobash had threatened the appellant with dismissal. In reply to this letter, marked C-3', the appellant again denied the charges. In letter, C-4', dated 14-41985, the appellant was informed by the respondents that his period of suspension expired on 9-4-1985 and his absence from duty thereafter was unauthorized and without leave. In reply to this letter, the appellant, vide his letter C-5' again alleged that on 16-4-1985, he reported for duty to Mr. Dobash who took him in his cabin and tried to persuade him to withdraw his reply to the charges and insisted to apologize. In reply to this letter, the respondents, vide letter, C-6' informed the appellant that he made untrue allegations against Mr. Dobash which were denied and because he was persisting in making untrue statement as such he was liable to be proceeded for misconduct as defined in Standing Order 15(3)(j) read with Standing Order 15(1)(ii)(c). There was lengthy exchange of correspondence between the parties wherein the appellant persistently repeated his statement with regard to his absence on 1-4-1985, and that he did not appear for interview before another bank. He was charged for misconduct by making serious allegations against Mr. Dobash in his letter addressed to the bank and for repeatedly making false statements. The Enquiry Officer after holding enquiry found the appellant guilty of both the charges.
7. It would be seen that the enquiry was not held for remaining absent on 1-4-1985 on false pretext, but the enquiry was held for persisting in making false statement with regard to absence on 1-4- 1985 and with regard to misconduct for making allegations against superior, Mr. Dobash.
8. Mr. Hassan Jafri, learned counsel for the appellant has submitted that order of termination was wrong as the appellant was not given second show-cause notice and also was not supplied copy of the enquiry report. He has further submitted that the appellant has made certain allegations against Mr. Dobash to explain the charge against him and that it did not amount to misconduct. It has also been submitted that if at all it amounted to misconduct, it was not a serious misconduct so as to warrant dismissal from service. It was also submitted that the reasons for absence on 1-4- 1985 were not false.
9. Mr. Abdul Hafeez, the learned counsel for the respondents has relied upon the case of Hind Construction and Engineering Co. Ltd. v. Their Workmen, 1965 L C 652, where Supreme Court of India has observed that "it has been ruled that the award of punishment or misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequac) of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.
10. In 1971 L L C 7, the Industrial Appellate Tribunal, West Pakistan, has observed that the practice of giving second show-cause notice to Road Transport Corporation employees prevailing before the promulgation of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, formed part of conditions of employment and must be complied with and that the principle of natural justice required that the workman served with second show-cause notice must be furnished with a copy of Enquiry Officer's report. "It may be pointed out that neither the service of second show-cause notice is mandatory under Standing Orders Ordinance nor the supply of the report of the Enquiry Officer is mandatory. In the case of District Manager, Government Transport Service v. Hussain Bakhsh 1975 L L C 121, this Tribunal had held that failure to supply copy of Enquiry Officer's report and non-service of second show-cause notice was serious lacuna, not curable even by personal hearing by appellate authority after infliction of punishment.
11. In the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal 1975 PLC 818, a learned single Judge of Lahore High Court has observed that copy of Enquiry Officer's report must be supplied to the employee and issue of second show-cause notice was also necessary to afford opportunity to the workman to explain adverse findings of the Enquiry Officer. Similar view was taken in the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore 1976 L L C 613. Therein the Supreme Court has held that it was necessary that the workman should be furnished with copy of enquiry report against him and should also be given an opportunity to show cause against order of dismissal and mere fact that workman had a personal audience with his employer was not enough.
12. In this case, there is no evidence to show that the issuance of second show-cause notice or supply of copy of the enquiry report was a part of the terms and conditions of service of the appellant. In this connection, Mr. Hafeez has relied upon the case of Dawood Cotton Mills v. Guftar Shah PLD 1981 SC 225, where their Lordships of the Supreme Court while interpreting Standing Order 15(4) of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 has held that the second show-cause notice after completion of enquiry was not a requirement of rules of natural justice nor supply of report of Enquiry Officer was such a requirement. The requirement in such cases is "to give information of alleged misconduct and opportunity to explain circumstances alleged against workman and to defend himself by cross- examining witnesses and examining himself or any other witnesses in defence." A reference was made in this case to the earlier decision of the Supreme Court in the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal and it was observed that as the report of Enquiry Officer contained extraneous matters which were not relatable to the charges leveled against workman in regard to which he had submitted his explanation and which greatly influenced the Enquiry Officer to recommend the dismissal of the workman and as the second show-cause notice, which formed part of the conditions of the workers of the Road Transport Corporation was not given to the delinquent workman, his case has been prejudiced as he had no opportunity to rebut the allegations. It was in these circumstances that Supreme Court, while dismissing the petition for special leave to appeal, held that the workman should have been furnished with the copy of the enquiry report and also the second show-cause notice as this was consistent with the principle of natural justice. It was further observed that this observation must be understood in the context of the peculiar facts of that case and does not lay down the broad principle that they form part of the rules of natural justice or for that matter to be spelt out from the provisions under consideration.
13. In the case of Ghulam Rasool Khan v. The District Manager, Government Transport Service, 1970 PLC 356, the Industrial Appellate Tribunal, West Pakistan, had held that the term 'willful insubordination' was wide enough to include misbehavior of workman, worker acting in a haughty and insulting manner towards his superior would be guilty of misconduct on account of willful insubordination.
14. In the case of Dr. Anklesaria Nursing Home v. Zafar Iqbal, 1982 PLC 553, this Tribunal had held that use of abusive language in hospital premises and that too in a room adjoining Surgeon's room, cannot but be considered subversive of discipline and such riotous and disorderly behavior at an establishment or any act subversive of discipline constitutes misconduct entailing punishment of dismissal.
15. Reliance is also placed on the case of Abdul Rasheed Qureshi v. Industrial Court of West Pakistan, Lahore and Pakistan Tobacco Co. Ltd., Jhelum PLD 1967 SC 367. In that case, Propaganda Secretary of the Union had written a letter to the establishment stating therein that the Union's Propaganda Secretary had no hand in the strike of casual labour and domestic servants, but, on the other hand, it was the personnel manager who arranged the casual labour strike with the intention to make a public contact with a labour contractor. Their Lordships of the Supreme Court have held "that there was a direct attack on the probity of a superior Executive Officer of the company directly concerned in the management of the Labour force and a very grave accusation that this officer was himself engineering trouble among the workmen. There could be no question but that such conduct was calculated to be destructive of discipline."
16. In the case of Maqbool Hussain v. Presiding Officer, Punjab Labour Court 1977 SCMR 480, the petitioner had addressed a letter to the Finance Manager with copies to certain officers, wherein serious allegations were made against the officers couched in insolent and insubordinate language. He was accordingly issued a charge-sheet and after being given opportunity to be heard, he was dismissed from service. The petition before the Labour Court was dismissed and his appeal was also dismissed. A writ petition filed by the petitioner was also dismissed and their Lordships of the Supreme Court found that it was not the case for interference.
17. In the case of the Inn, Airport, Karachi v. Mahmood Ali 1978 PLC 347, the Vice-President of Union accompanied an aggrieved worker to Personnel Officer of management in angry mood, resorting to rude and insulting behavior when asked to leave worker to be dealt with alone, and, insisted upon his right to accompany any aggrieved worker in his capacity as Vice-President of Union, it was held by this Tribunal that the charges of misconduct under circumstances were held rightly set up because such miss behavior amounted to willful insubordination constituting misconduct, dismissal on basis of such charge proved in impartial enquiry was held to be not exceptikmable."
18. The allegations against Mr. Dobash were made by the appellant for the last time in his letter, dated 14-5-1985. Mr. Hafeez was asked to explain how the charge-sheet, dated 27-5-1985, could be considered within time. Mr. Hafeez contended that under Standing Order 12(4) the duty of the employer was only to inform the appellant or the employee about the alleged misconduct within one month of the misconduct and it was not necessary that the formal charge-sheet should also be framed within one month. He further submitted that vide letter, dated 20-4-1985, which is C-6', the appellant was informed about his misconduct of making false and serious allegations against Mr. Dobash which amounted to willful insubordination and/or acts of subversive of discipline under Standing Order 15(3)(h) and/or 15(3)(j).
19. The charge of making serious allegations against superior officer is borne out from the documents produced by the parties. As held in the aforesaid cases of Abdul Rasheed, Maqbool Hussain and The Inn, Karachi Airport, such A conduct amounted to misconduct which was calculated to be destructive of the discipline and also to willful insubordination of discipline and dismissal on such charges was upheld by the superior Courts, even by Supreme Court.
20. With regard to the first charge of persistently making false statement as to reason for leave on 1-4-1985, there is only oral evidence of the respondents' witness rebutted by the oral evidence of the appellant himself. No one from European Asian Bank has been examined to show that the appellant had appeared before the said bank for interview on the said date. Certain letters have B been produced in support of this allegation but those letters have not been proved as the writer of the same has not been examined. Even if any letter of interview was issued to the appellant or even if some person by that name had appeared before the said bank, there is no evidence to show that the appellant had appeared for interview before the said bank. In view of evidence on record, in my opinion, the first charge does not stand proved against the appellant.
21. It may be argued that when there was no sufficient evidence and when the first charge is not proved then the fact, that the appellant was charge-sheeted C on the charge of obtaining leave on false pretext and time and again he was asked to explain the allegation would amount to harassm ent and consequently his conduct in making allegations against Mr. Dobash would be understandable and excusable. The fact that the charge was not proved would not necessarily mean that the respondents did not have bona fide reasons to believe that the appellant had obtained leave on false pertext. The evidence of Mr. Dobash before the Enquiry Officer shows that he had received this information from the European Asian Bank people. Respondents have also produced one letter which is at page 165 of the record and proceedings of the trial Court. It is a letter from European Asian Bank addressed to the respondents informing them that Mr. Nunes had called on them on 1-4-1985 for interview. Though, this letter has not been properly proved, but, still the contentions of the respondents that they had such an information, cannot be said to be unfounded. Their conduct in calling for explanation of the appellant, therefore, cannot be considered as mala fide or harassme nt and the appellant had no justification for that reason to lose temper and make serious allegations against his superiors. The nature of the business of the bank requires that there should be trust and understanding between the employer and the employee and once the employee loses the confidence of the employer by making allegations against the superiors, such an employee cannot he forced upon the bank against their will specially when the charge against him stands proved from the documentary evidence.
22. For the aforesaid reason, I exonerate the appellant from the first charge but maintain the order of dismissal from service on the second charge of misconduct and consequently, the appeal is dismissed.