MUKHTAR AHMED JUNEJO, J.--Petitioner M/s. Atlas Autos Limited have invoked Constitutional jurisdiction of this Court for challenging an order dated 25-9-1988 passed in Appeal No, KAR- 207/84 by learned Sindh Labour Appellate Tribunal (hereinafter to be referred to as the Tribunal).
2. Admittedly respondent No, 2 Muhammad Ali was an employee of the petitioner. During the course of his employment the respondent No, 2 was issued by the Atlas Autos Limited a charge- sheet dated 22-6-1983 containing the allegations that the respondent No, 2 had misbehaved with the Assistant Manager and had threatened him. It was alleged by the petitioner that the respondent No,2 refused to receive the charge-sheet dated 22-6-1983, which was sent to him by registered post A.D. Subsequently, respondent No, 2 was issued a letter dated 27-6-1983 with which copy of the charge-sheet dated 22-6-1983 was attached and the respondent No, 2 was called upon to reply the charge-sheet. Respondent No,2 after reading the letter dated 27-6-1983 refused to receive it, as alleged. Consequently, on 29-6-1983 respondent No, 2 was gate-stopped. On 4-7- 1983 respondent No, 2 was issued a fresh charge-sheet containing the allegations, that he had refused to receive the charge-sheet dated 22-6-1983, that he had refused to receive the suspension letter dated 25-6-1983 and that he had refused to receive the Factory Manager's letter dated 27-6-1983. Instead of sending the charge-sheet dated 4-7-1983 to the respondent No, 2 by post or through anybody, the petitioner got the same published in daily Dawn dated 4-7-1983.
There was no response from the respondent No, 2 and consequently the petitioner decided to hold inquiry against the respondent No, 2 and issued such inquiry notice on 7-7-1983 and fixed the date of inquiry to be 9-7-1983. Instead of sending the inquiry notice to the respondent by post or through somebody, the petitioner chose to get it published in the daily Morning News dated 7-7-1983. This was followed by holding of the domestic inquiry on 9-7-1983 which proceeded ex parte as the respondent No, 2 did not attend. The Inquiry Officer submitted his report dated 10-7-1983 to the petitioner. The petitioner ordered on 11-7-1983 dismissal of the respondent No, 2 with immediate effect. Instead of sending the dismissal letter to the respondent No, 2 through registered post or any other mode, the petitioner got said notice published in daily Morning News dated 11-7-1983.
3. The respondent No, 2 submitted to the petitioner his grievance notice dated 21-7-1983, which was rejected by the petitioner on the ground that it did not disclose any valid or reasonable ground for reinstatement. Such reply to the grievance notice was got published in daily Morning News dated 11-8-1983.
4. Subsequently, the respondent No, 2 invoked the jurisdiction of the Sindh Labour Court No, 2 under section 25-A of I.R.O. for reinstatement.. His grievance application was dismissed under the order dated 9-8-1984, which he challenged before the Tribunal under Appeal No, KAR-207 of 1984. Under the impugned order dated 25-9-1988 learned Tribunal reversed order of the Labour Court and directed reinstatement of the respondent No, 2 in service of the petitioner with full back benefits.
Hence this petition.
5. Mr. Noor Muhammad, learned counsel for the petitioner argued that the petitioner had complied with all the relevant legal provisions of law while dismissing the respondent No, 2, and that dismissal of the respondent No, 2 was warranted by law as he, by refusing to receive the charge- sheet dated 22-6-1983 had committed wilful in subordination and disobedience of a lawful and reasonable order of a superior, for the purposes of Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Oiders) Ordinance (hereinafter to be referred to as the Ordinance). Explaining the reasons for communicating the various notices to the respondent No, 2 by publication, learned counsel for the petitioner argued that conduct of the respondent No, 1 was such that he did not accept any communication from the petitioner and if anything was sent to him by registered post A.D. then he would, after receiving such registered envelope, make complaint to the petitioner that the registered envelope sent to him was empty. It was added that in the circumstances the petitioner was left with no option except to send the various notices to the respondent No, 2 by publication. Learned counsel referred to para. 6 of the impugned order and disagreed with view of learned Tribunal, criticising the domestic inquiry to be a mere empty formality. Learned counsel referred to the evidence of Muhammad Ameer Awan who was Inquiry Officer. In support learned counsel for the petitioner cited the cases of (i) Muhammad Shamim v.
M/s. Pakistan Tocacco Company Limited and another 1975 5 C M R 46, (ii) Crescent Jute Product Limited v. Muhammad Yaqoob and others 1989 PLC 499, (iii) Akhtar Alam v. Sindh Labour Appellate Tribunal and others 1985 PLC 570, (iv) Cotton Export Corporation of Pakistan Limited v.
Sindh Labour Appellate Tribunal and others 1984 PLC 712 and (v) Abdul Rasheed v. Industrial Court of West Pakistan and another 1967 PLC 525.
6. In (i) above the domestic inquiry as per the charge-sheet was to be conducted by the Factory Personnel Manager, who being on leave, the inquiry was conducted by Assistant Personnel Superintendent; and it was held that the inquiry made was with approval of the employer. In (ii) above, the view taken by Lahore High Court was that where the employer was called upon to justify dismissal of a worker, the best course for him was to make available the record of the inquiry starting from the allegations against the employee, the charge-sheet, the inquiry itself followed by the inquiry report, the show-cause notice and the termination order and that it was not necessary for such employer to produce in Labour Court every witness who had been produced in the inquiry.
In (iii) above, a Division Bench of this Court dealing with the provisions contained by clause (h) of para. (3) of Standing Order 15 of the Ordinance observed that said clause provided two categories of the acts which may constitute a misconduct, namely, riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline and that the words "any act subversive" must be construed ejusdem generis with the words preceding them. In (iv) above a learned D.B. of this Court held that the question whether employee's refusal to obey order of his superior constituted misconduct or not, was a question of fact which could not be interfered with in exercise of Constitutional jurisdiction of the High Court. In the cited case the employer had not brought on record, as to, what was the nature of the urgent work which the workman declined to attend during the lunch hours and as to whether the urgent work was such, which could not have been postponed for about 45 minutes. In cited case there was no question of an employee's refusal to receive a charge-sheet. In (v) above an employee who was Clerk in the establishment and was General Secretary of his union wrote a letter to the Director Labour on behalf of the Union alleging that it was the Personnel Manager who arranged the casual labour strike with the intention to make a public contract with a labour contractor. On the basis of such letter, the management proceeded against him under Standing Order 15(3)(h) and gave him punishment. It was held that no fault could be found with conclusion of the Industrial Court that the concerned employee was guilty of acts subversive of discipline for having recklessly made a defamatory statement. In the cited case there was no allegation about refusal to receive a charge-sheet.
7. Mr. Mirza Muhammad Kazim, learned counsel for respondent No, 2 defended order of the Tribunal and argued that even if it be conceded that the respondent No, 2 refused to receive the charge- sheet dated 22-6-1983, such act would not fall either under clause (a) or under clause (h) of para.
(3) of Standing Order 15 of the Ordinance. It was next argued that the respondent No, 2 was victimised due to union activities and that the respondent No, 2 was not communicated the second charge-sheet that was published in daily Dawn dated 4-7-1983 and his reply to the charge-sheet was not obtained before ordering domestic inquiry against him and that there was no proper communication to the respondent No, 2 that he had to face domestic inquiry on 9-7- 1983. It was further argued that the petitioner had firstly to send its communications to the respondent No, 2 through somebody or through registered post, and he had to follow the spirit of Order 5 Rule 20 of C.P.C. In support learned counsel cited the cases of Crescent Jute Products Limited v. Muhammad Yaqoob and others PLD 1978 SC 207 and the Workers of Bata Shoe Company Limited v. Bata Shoe Company Limited and another 1971 PLC 1.
8. The allegations on the basis of which dismissal of respondent No, 2 was ordered read as follows:- "(a) That on 22-6-1983 at about 12-10 noon you were asked to receive a charge-sheet dated 22-6- 1983. But refused to receive the said charge-sheet issued and signed by the Factory Manager directing you to submit your written explanation within 48 hours of the date of receipt thereof.
(b) On 25-6-1983 you were given a suspension letter dated 23-6-1983 signed and issued by the Factory Manager pursuant to the above charge-sheet but you also refused to receive the same.
(c) That on 27-6-1983 you again refused to receive the Factory Manager's letter reference No, ALL- Admn./405/83, dated 27-6-1983 whereby you were specifically told that refusal to receive a written communication/direction from your superiors amounts to misconduct of wilful insubordination and accordingly you were specifically directed by the Factory Manager's said letter dated 27-6- 1983 to receive the same but you still refused to receive it, i,e, the Factory Manager's said letter of 27-6-1983."
Learned Counsel for the petitioner conceded that the alleged acts do not fall under clause (h) of para. (3) of Standing Order 15, but vehemently argued that the same fall under clause (a) of para.
(3) of Standing Order 15. Clause (h) speaks of riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline. The words riotous or disorderly behavoiur reflect an act having some criminality. Moreover, before attracting clause (h), the alleged riotous or disorderly behaviour should be at the establishment and during working hours. Refusal to receive a charge-sheet can by no stretch of imagination be construed as an act subversive of discipline. We therefore, hold that alleged acts do not fall under clause (h) of Standing Order 15(3).
9. Learned counsel for the respondent No, 2 argued that the alleged acts of the respondent No, 2, can at the most fall under clause (ii) of para. (1) of Standing Order 15, for which a worker can be fined but he cannot be dismissed. It was also argued that alleged acts of the respondent No, 2' did not fall under clause (a) of Standing Order 15(3).
10. "Wilful" implies a knowledge or intention and in the case of Pakistan International Airlines Corporation v. Junior Labour Court and others PLD 1978 C SC 239 it was held that mere failure of an air hostess to take permission to leave base of duty, was not an act of wilful insubordination or disobedience of any .lawful and reasonable order of a superior. Learned counsel for the petitioner did not cite at the bar any authority to show that failure to receive a charge-sheet amounted to wilful insubordination or disobedience to any lawful and reasonable order of a superior. In the case of Abdul Karim v. District Manager, G.T.S. 1969 L L C 350 there was refusal by the workman to receive charge-sheet and the only consequence of that, as per the Industrial Appellate Tribunal was, that the Inquiry Officer was not bound to intimate the date fixed for the ex parte proceedings to the worker. We, therefore, agree with learned counsel for the respondent No, 2 that the alleged acts of the respondent as mentioned in the charge-sheet published in daily Dawn on 4-7-1983 do not fall under clause (a) of para. (3) of Standing Order 15.
11. In view of aforesaid findings, no exception can be taken to the impugned order of learned Tribunal.
12. We, therefore, dismiss this Constitutional Petition with no order as to costs.