DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi dated January 31, 1913, whereby the learned Labour Court dismissed the application of the appellant. The facts necessary for the disposal of this appeal briefly put are these.
2. Mahmood Hussain (hereinafter called the appellant), was employed as a Driver by the United Distributors Limited (hereinafter called the respondent). The respondent is a Company registered under the Companies Act, 1913. The case of the appellant is that he was an active member of the Union and that he was charge-sheeted for mis--conduct because of his Union activities, which were not liked by the respondent-Company. The respondent issued a slow-cause notice on 26th September 1972. According to the appellant, ex parte enquiry was held against him as he was not informed about the date when the enquiry was to be held. The appellant was dismissed front service on 14 October 1972. It is contended by the appellant that his dismissal from service is illegal, as he did not commit any misconduct.
3. It was contended by the respondent in it, objections , that the application under section 25-A of the Industrial Relations Ordinance, 1969, (hereinafter called the Ordinance?, was not maintainable, ;as the appellant hat- not complied with the procedure prescribed therein. It was submitted by the respondent that the appellant did not participate in the enquiry, in spite of the not-a served on him and, therefore, the Enquiry Officer was obliged to hold an ex parte enquiry and come to its conclusion.
4. The learned Labour Court came to the conclusion that the appellant had not followed the procedure prescribed under section 25-A of the Ordinance. 'The learned Labour Court further came to the conclusion that the appellant himself did not participate in the enquiry and, therefore, thereth was no violation of the principle of natural justice, The learned Labour Court lastly held that the Domestic Enquiry being fair and legal and the appellant having been found guilty of in-- subordination, which is a gross misconduct, he was rightly dismissed from service.
5. The first point that requires consideration is as to what is the effect of the failure on the part of the appellant to follow the procedure prescribed under section 25-A of the Ordinance. The learned Labour Court rightly held that the appellant did not follow the procedure prescribed under section 25-A of the Ordinance. The application, however, was under section 25-A read with section 34 of the Ordinance. The question would be as to whether an application, which was not maintainable under section 25-A of the Ordinance, could be maintainable under section 34 of the Ordinance. Mr. S. M. Yaqoob, the learned Representative for the respondent-Company, very strenously contended that failure to follow the procedure prescribed under section 25-A of the Ordinance was fatal. He submitted that where an applicant has failed to follow the procedure prescribed under section 25- A of the Ordinance, he could not fall back on the provision of section 34 of the Ordinance. In this connection, the learned Representative for the respondent, very strenuously relied on Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). It reads as under:- "The services of a workman shall not be terminated, nor shall a workman be removes, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and hereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." (Underline* is mine).
6. Mr. Yaqoob relied on the underlined* portion of Standing Order 12(3) of the Standing Orders Ordinance in support of his contention that the only remedy open to a workman in case his services were terminated; and he had any grievance; was to follow the procedure under section 25-A of the Ordinance. There is not much force in this contention.
7. On 2nd November 1972, when the appellant made his application before the Labour Court, he had a choice under the Ordinance, either to follow the cumbersome procedure prescribed under section 25-A of the Ordinance or to go straight to the Labour Court for redress of his grievance under section 34 of the Ordinance. In either case, whether he made an application under section 25-A of the Ordinance or under section 34 of the Ordinance, his grievance bad to be in respect of anvil right guaranteed to him under any law. He could get redress under either of the two provisions of law only if he succeeded in establishing that he had any right guaranteed or secured to him under any law or any award or settlement. In the present case, the appellant's services were terminated on 14th October 1972, and without following the cumbersome procedure of section 25-A of the Ordinance, he at once came to the Labour Court for redress of his grievance on 2nd November 1972. The mere fact that the Standing Orders Ordinance which, is an independent.
Ordinance, gives a choice to a workman to apply under section 25-A of the Ordinance, does not- mean that his right to apply under section 34 of the services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may bring his grievance to the notice of his employer ire the manner laid down in section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the .Said section shall apply as they apply to the redress of an individual grievance." (Underline* is mine).
6. N1ir. Yaqoob relied on the underlined* portion of Standing order 12(3) of the Standing Orders Ordinance in support of his contention that the only remedy open to a workman in case his services were terminated, and he had any grievance, was to follow the procedure under section 25-A of the Ordinance. There is not much force in this contention.
7. On 2nd November 1972, when the appellant made his application before the Labour Court, he had a choice under the Ordinance, either to follow the cumbersome procedure prescribed under section 25-A of the Ordinance or to go straight to the Labour Court for redress of his grievance under section 34 of the Ordinance. In either case, whether he made an application under section 25-A of the Ordinance or under section 4 of the Ordinance, his grievance had to be in respect of any right guaranteed to him under any law. Me could get redress under cither of the two provisions of law only if he succeeded in establishing chat lie had any right guaranteed or secured to hire under any law or any ward or settlement. In the present case, the appellant's services were terminated on 14th October 1972, and without following the cumbersome procedure of section 25-A of the Ordinance, he at once came to the Labour Court for redress of his grievance on 2nd November 1972. They mere fact that the Standing Orders Ordinance which, Is an independents, Ordinance, gives a choice to a workman to apply under section 25-A of the Ordinance, does not mean that his right to apply under section 34 of the Ordinance is taken away, I would interpret the word "nay" occurring in clause (3) of Standing Order 17 of the Standing Orders Ordinance as obligatory and not mandatory. It was open to him to make as application under section 25-A of the Ordinance. No litigant much less a workman, who is not supposed to be very conversant with the intricacies of law, is deprived to pursue his remedy, in the absence of anything specific, under section 34 of the Ordinance. The Legislature up to 10th November 1972, when section 34 of the Ordinance was amended by omitting the ward "workman" gave an option to the workman to apply uncle: either of the sections of the Ordinance. The Legislature expressed its intention only on 10th November 1972, that a workman should not have recourse to section 34 of the Ordinance in respect of any grievance relating to any right guaranteed to him under any law or any award as settlement by omitting the word "workman" from section 34 of the Ordinance. The workman, in short, from 10th November 1972, when the amendment was published in the Gazette Extraordinary, could not snake an application under section 34 of the Ordinance. A legitimate inference can be drawn that the Legislature knew that so long as section 34 of the Ordinance was not amended the option was open to a workman to apply either under section 25-A or section 34 of the Ordinance. Moreover, a workman by applying under section 34 of the Ordinance cannot be said to have gained any advantage over its employer. The best that can be said is that if the workman had followed the procedure prescribed under section 25-A of the Ordinance, the employer may have redressed his grievance. If that is so, the employer could show his magnanimity by accepting his demand when he made the application before the Labour Court.
8. The employer cannot be allowed to defeat the claim of workman on a technical point, specially when no prejudice is caused to him. If them are two interpretations possible, the one which favours the workman should be accepted. The interpretation advanced by the learned Representative for the respondent, if accepted, will result in dismissal of hundreds of applications that are pending for disposal in the Labour Courts. Thus would lead only to industrial unrest. I would hold that it was optional for the workman to apply either under section 25-A or section 34 of the Ordinance. The application by the appellant under section 34 of the Ordinance is maintainable.
The important point for consideration in this appeal is as to whether on the show-cause notice any case for misconduct was made out or not. The show-cause notice, is on the record of the Labour Court. It is dated 26th September 1972, and runs as under:- "It has been reported that on 25-9-1972 at 7 p.m. You were asked by our Mr. Muhammad Saeed, Godown Incharge to deliver stocks of cigarettes to Nazimabad Depot but you refused to do so despite the stocks were loaded in your van. You stated that it was 5 p.m. And as such you will not take stocks to Nazimabad Depot as you were not interested in overtime, although you were supposed to be on duty up to 5-30 p.m. You disobeyed the order and went away to the Garrage with the stocks of cigarettes, lying in your van.
You are, therefore, hereby asked to explain, in writing within two days from the receipt of this as to why disciplinary action should not be taken against you."
10. Under Standing Order 15(3) of the Standing Orders Ordinance acts and omissions which would amount to misconduct are specified. The relevant provision is Standing Order 15(3)(a) and it reads as under :- "(3) The following acts and omissions shall be treated as misconduct:-
(a) wilful insubordination or disobedience, whether alone or. In combination with others, to any lawful and reasonable order of a superior ;"
11. Insubordination or disobedience of an order in order to amount to misconduct must fulfil the following ingredients :-
(1) It must be lawful; and
(2) It must be reasonable.
12. The best that can be said in favour of the Management is that the refusal was wilful. Wilful would mean an act done intentionally, knowingly and purposely as distinct from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The order may also be said lawful, inasmuch as the employer can ask a workman to do overtime work, but the question is can the order in the circumstances mentioned in the show-cause notice itself be said to be reasonable.
13. Mr. Yaqoob, the learned Representative for the respondents contended that the reasonableness of the order cannot be looked into at the appellate stage. In this connection, he contended that the question of reasonableness of the order was neither raised before the Labour Court nor in the Memo of appeal before the Tribunal. A reference to the application before the learned Labour Court would show that though the question of reasonableness has .Not been taken in so many words, but it has been impliedly taken as it was contended that the charge-sheet did not amount to misconduct under Standing Order 15(3)(a) and (h) of the Standing Orders Ordinance. The relevant portion reads as under :- "The opponents, by issuing a show-cause notice to the applicant and in alleging that the charges levelled against him constitute mis--conduct under Standing Order 15(3)(a) and (h) have misread and/ or misinterpreted the law for ulterior motives. The applicant is not guilty of the offence charged with and his consequential dismissal is a nullity in law."
14. It is true the appellant had not taken the point specifically that the order being unreasonable did not amount to misconduct. It is well--settled law that an appellant can be allowed to take a point which is a mixed question of fact and law even in second appeal if no further evidence is required to be adduced. This is a first appeal. An appellant is entitled to take a point, which he can urge from the material already on the record of the Court. In the present case, the contention of Mr. Aijaz Rizvi, the learned Representative for the appellant is that on the facts mentioned in the show-cause notice itself no case of misconduct is made out.
15. It is a question of inference to be gathered from the circumstances and facts of each case as to whether an order is reasonable or otherwise. The admitted facts are that the working hours of the appellant Driver was from 8-30 a.m. To c-30 p.m. Mr. Yaqoob, the learned Representative for` the respondent, admitted at the Bar that the van was loaded on M. A. Jinnah Road. It was to go from Jinnah Road to Nazimabad. The learned Representative for the respondent referred to the Enquiry Report to establish that the order was reasonable, inasmuch as, if the Driver could take the van from Jinnah Road to. Nazimabad, almost within his duty hours, with a difference of few minutes on this side or that side. In this connection, the summary of the Enquiry Officer's Report, which is based on the evidence that was produced before him, may be reproduced as under :- "Furthermore, from the statement of the witnesses it is clear that Mr. Mahmood Hussain came back to the godown at about 4-30 p.m. On 25th September 1972. His van was loaded by 4-40 p.m. At about 4-50 p.m. When the van was still not taken out Mr. Muhammad Saeed, Godown Incharge called him and asked him as to why he had not taken the van out. Mr. Muhammad Hussain took the plea that he might be delayed beyond duty hours. Mr. Saeed tried to convince Mr. Mahmood Hussain that he was waiting and doing nothing since 4-30 p.m. He should take the van with stocks to Nazimabad Depot and it would take about 20 minutes to reach there. Another 5 minutes might be required for unloading the van and 10-15 minutes might be required to go to the garrage to park the van."
16. My impression from the conclusion of the Enquiry Officer reproduced above, is that there was a deliberate attempt on the part of the Management to justify that the appellant could take the van to Nazimabad and be back within his duty hours. The evidence led by the Management before the Enquiry Officer is in conflict with the show--cause notice. In the show-cause notice it is definitely mentioned that the appellant was asked at 5 p.m. By Mr. Mahmood Hussain, Godown Incharge, to deliver stocks of cigarettes to Nazimabad Depot. I am of the view that there was a deliberate attempt on the part of the witnesses of the Management to set back the time, though only by few minutes, to prove that the appellant could perform his duty by 5-30 p.m. I strongly disapprove of such an attempt on the part of the Management to justify the charge. On the other hand, it would appear from the address of the respondent given in the Memo of appeal and before the Labour Court that their office is on M. A. Jinnah Road, opposite Memon Masjid. The admitted position is that the cigarettes were loaded on Jinnah Road. The part of Jinnah Road, where the office of the respondent-Company is situated, is a busy locality. Five in the evening is also peak hour for Jinnah Road. A driver taking a van on Jinuah Road has to be cautious. He cannot drive at a speed which he may like. From Jinnah Road to Nazimabad at 5 in the evening it is not easy to go by a van or by car. The road is crowded. It will certainly take over half an hour tea reach Nazimabad. It is easy to say that it will take only 5 minutes for unloading. I think it might take more than 5 minutes even for the porters to be called to unload the van. However, even if the another half an hour to come back to Jinnah Road for parking the van. Mr. Yaqoob, the learned representative ]or the respondent, did not show me any provision of law under which a workman could be compelled against his wishes to perform overtime duty. The best that can be said is that an employee is expected to readily obey the order of his employer in case of emergency, even if he did not like to perform overtime duty. In the present case, the appellant was conscious of the fact that had there been an emergency to take the load of cigarettes to Nazimabad, he would have done so. This is clear from his plea in the application before the Labour Court. The appellant stated as under :- "Consequently the refusal to do overtime in non-emergent circum--stances does not amount to any misconduct."
17. There is not a word in the statement of Mr. Abdullah, one of the Directors of the respondent- Company, to disclose that there was any emergency to carry the cartons to Nazimabad. In my opinion, if a workman did not feel like doing overtime duty, he could not be compelled to do it, unless it was a case of emergency. The Management is not expected to act as autocrat in seeing that all its orders, whether reasonable or unreasonable, are carried out. The wishes of the; workman, who had been working from section 30 p.m. And driving s van till five in the evening, when he might be feeling too tired to perform overtime duty, should not have been lightly ignored, there being no emergency. I would hold that the order of the Godown Incharge to carry the van from Head Office to Nazimabad at five in the evening was unreasonable. The award of the learned Labour Court dated 31st January 1973, is set aside. The appellant is re-instated with full back benefits. The respondent-Company also to pay Rs. 100 (Rupees one hundred only) as costs to Mr. Aijaz, the learned representative for the appellant, within a week.