DECISION ' This appeal is directed against the order of the learned Presiding Officer, Sind Labour Court No, IV, dated 19-3-1988.
2. The brief facts leading to this appeal are that the respondent is admittedly a workman employed with the appellant. He is alleged to have disobeyed the orders of the appellant to come to the factory at 7 a.m. To help the skilled worker in starting the boilers, generators, air-conditioners etc. And maintain the temperature. The respondent was performing his duties as above since 1-7-1987 to 21-7-1987 but thereafter refused to comply with the orders. He was served with the charge-sheet for allegedly committing misconduct as defined under Standing Order 15(3)(a) and after due inquiry he was dismissed from service. After serving grievance notice the respondent filed grievance application before the learned Labour Court. The contention of the respondent was that the order was neither reasonable nor legal and that he did not refuse to obey any order. The appellant resisted the application on the ground that the conduct of the respondent amounted to misconduct as defined under Standing Order 15(3)(a).
3. I have heard Mr. Syed Qamaruddin Hasan, counsel for the appellants and Mr. Ali Amjad, Advocate for the respondent and also perused the record proceedings of the case.
4. It may be pointed out at the very outset that the appellants have examined no witness in support of their case. Even written statement filed by them is not verified on solemn affirmation. Mr. Ali Amjad, the learned counsel for the respondent has submitted that even this written statement cannot be looked into and the appellant would be deemed not to have put any defence. He has relied upon the case of Mst. Khair-ul-Nisa v. Muhammad Ishaq and others PLD 1972 SC 25 wherein their Lordships have observed:-- "Written statements cannot be the exhibits in a case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case. Written statement cannot be an exhibit if defendant dies without being examined."
' Thus, the only evidence on record is the averment made by the respondent and the evidence of the respondent and his cross-examination by the appellants.
5. It is admitted fact that regular hours of working in the factory are from 8.15 a.m. To 5 p.m. With one hour break. Admittedly respondent was asked to come at 7 a.m. To assist another skilled worker in starting the boiler, air-conditioning etc. And in maintaining the temperature so that the workers when they come at 8-15 a.m. Could start work without any delay. Admittedly the respondent did so work from 1-7-1987 to 21-7-1987. Admittedly no order in writing fixing this duty of the respondent was passed or served upon the respondent but he was given oral instructions by Muhammad Illyas, Maintenance Supervisor in Engineering/Maintenance Department. It is also admitted by the respondent in cross-examination that Muhammad Illyas did not withdraw this order. It is submitted by Mr. Syed Qamaruddin Hassan, learned counsel for the appellant, that failure of respondent to attend the factory at 7 a.m. In pursuance of the said order of Muhammad Illyas would amount to misconduct under Standing Order 15(3)(a), which reads as under:-- "(3) The following acts and omissions shall be treated as misconduct:--
(a) willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior."
5-A. It is submitted by Mr. Ali Amjad that such an oral order cannot be an order as contemplated under the Standing Orders as it was not in writing. Furthermore this order was neither reasonable nor lawful. He has drawn the attention of this Tribunal to averments in the affidavit-in-evidence of the respondent wherein he stated that he was living at a distance of 20 K.M. From the factory and public transport was normally not available at such an early hour and that if he came by taxi or rickshaw the fare of one side came to Rs,50 or Rs,60 whereas he was paid only conveyance allowance of Rs,6. He also stated that he worked for three weeks from 7 a.m. And that he did not receive any oral or written order to continue to work from 7 a.m. It is submitted by Mr. Ali Amjad that under the circumstances after the respondent had put in overtime continuously for three weeks it was not reasonable for the appellants to ask him to continue to work overtime from 7 a.m.
Indefinitely when he was coming from such a long distance and had to incur such a heavy expenditure. He further submitted that the above averments made by the respondent in his affidavit-in evidence have not been challenged in the cross-examination. Though in the cross- examination the respondent admitted that Muhammad Illyas did not withdraw the said oral order but it does not mean that he passed an order asking the respondent to continue overtime for indefinite period. Admittedly the respondent was unskilled worker. Admittedly there are scores of unskilled workers working in the factory who could have been asked to put in overtime and assist the skilled worker. It is submitted that insistence upon the respondent to continue overtime even after three weeks for indefinite period, under the circumstances, cannot be considered as reasonable. Reliance was placed on the case of Cotton Export Corporation of Pakistan Ltd. v. Slat and others 1984 PLC 712, wherein Division Bench of Karachi High Court observed:-- "It may be highlighted that violation or disobedience of every order of a superior does not constitute misconduct in terms of Standing Order 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the 'Ordinance') but the order should be lawful and reasonable. The question, whether an order is reasonable or not will depend on the facts of each case."
6. In view of the circumstances of the case I am inclined to agree with Mr. Ali Amjad that the order, if any, directing the respondent, who was living at a distance of twenty kilometres from the place of work, to continue overtime from 7 a.m. Even after he had put in continuous overtime for three weeks cannot be distance of twenty kilometres from the place of work, to continue overtime from 7 a.m. Even after he had put in continuous overtime for three weeks cannot be considered a reasonable order. Word "reasonable" has been defined in Black's Law Dictionary as: "Fair, proper, just, moderate, suitable under the circumstances."
Such an order cannot be considered as fair, just or suitable under the circumstances of the instant case and, therefore, is not a reasonable order.
7. The learned Labour Court has held the order not to be legal order as the provisions of Rule 6 of the Sind Factories (Adult Exemption) Rules, 1985 have not been complied with. I am unable to agree with the learned Labour Court as Rule 6 is applicable in case of urgent repairs and in the instant case the work that the respondent was doing was not repair work but routine work. Mr. Qamaruddin relied upon Rule 7 under which certain types of workers are exempted from the provision of sections 34, 35, 36, 37, 38, 39 and 40 of the Factories Act. The respondent does not fall in the category of workers specified in Rule 7 but according to Mr. Qamaruddin he would be covered under Rule 7 because he was employed solely on maintenance work. Admittedly the employment letter does not show that he was employed solely for the maintenance work. Mr. Qamaruddin has relied upon admission of the respondent in the cross-examination that he used to report to Mr. Muhammad Ilyas who was Maintenance Supervisor in the Engineering/Maintenance Department.
The Employment letter Exh. A/2 shows that respondent was employed as unskilled worker in the company and that he would perform duties and work assigned to him. He could be transferred to any job department, section or place, anywhere in Pakistan. Exh. A/4 is overtime register which is produced by the appellant through the respondent which shows that the respondent had been doing overtime in the Engineering Department. Word 'solely' connotes exclusiveness. To invoke the aid of Rule 7 it was incumbent upon the appellant to show that the respondent was employed exclusively for the maintenance work. However, the documents Exh. A/2 and Exh. A/4, as pointed out above, show otherwise. Therefore, Rule 7 would not be applicable to the case of the respondent.
Provisions of section 40 could not be therefore exempted. Section 40 of the Factories Act requires that no change in the system of work shall be made without previous sanction of the Factories Inspector. No such sanction has been obtained in the instant case. As such, the order, if any, which the respondent is alleged to have disobeyed would not be considered as lawful.
8. For the aforesaid reasons I am inclined to agree with Mr. Ali Amjad that the respondent had not committed disobedience of any legal or reasonable order and as such his dismissal was not justified. I, accordingly, find no merit in the appeal which is, hereby dismissed. The order of the learned Labour Court is upheld.