DECISION This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, IV at Karachi, dated 20-8-1989, whereby the grievance petition filed by the appellant was dismissed.
2. The brief facts leading to this appeal are that the appellant was employed with the respondents since 1963 and was working as Secretary to the Manager since 1975. It is alleged by her that in order to deprive her of the benefits on retirement after 25 years service, the respondents pressed her to resign and served upon her about 25 memos, during the period from 10-4-1986 to 17-4-1986 relating to alleged acts of omissions and negligence for the period of September, 1985. On 13-10- 1986 she received a warning letter followed by another letter, dated 14-10-1986 under which she was charge-sheeted under Standing Order 15(3)(j) read with Standing Order 15(1)(ii)(d) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Ordinance). She submitted her explanation on 16-10-1986. After domestic enquiry in which she could not participate because she did not receive notice in time, the appellant was ordered to be dismissed, vide order, dated 3-11-1986. After serving the grievance notice upon the respondents, the appellant filed grievance petition before the learned Labour Court which was successfully resisted by the respondents and was dismissed by the learned Labour Court.
3. I have heard Mr. Siddiq Mirza, learned Advocate for the appellant and Mr. A.Hafeez, learned Advocate for the respondents and also gone through the record and proceedings of the case.
4. The first point urged by Mr. Siddiq Mirza, the learned Advocate is that the charge-sheet was barred by the provisions of Standing Order 15(4) of the Ordinance. Standing Order 15(4) may be reproduced as under in order to appreciate the submission of the parties:-- "15(4)- No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman."
5. The charge-sheet was communicated to the appellant under letter, dated 14-10-1986, which has been produced as Annexure 'C' in the cross examination of the appellant and has also been produced as Exh. E/16 in the enquiry proceedings. In this letter, she was informed that she was issued 33 letters between 18-2-1986 to 23-4-1986 alongwith copies of letters and documents in which the relevant acts of omissions and commissions had occurred and that she was subsequently advised by a letter, dated 23-4-1986, to the following effect.
"Since verbal advices and pursuasions failed, memos had to be written and should you continue to give cause in future, you will continue to receive such memos.
However, it is sincerely hoped that you will not give any cause in future to necessitate the issuance of any such memos to you."
She was therefore, asked to explain in writing within 48 hours after the receipt of the show-cause notice as to why disciplinary action should not be taken against her in accordance with Law.
6. It is admitted fact that the subject-matters of the enquiry and the charge-sheet were certain acts of omissions and commission which amounted to inefficiency and negligence on the part of the appellant during the period between 18-2-1986 to 23-4-1986. It is, therefore, submitted that this charge-sheet, dated 14-10-1986, viz., after about 6 months of the alleged acts of misconduct was barred under Standing Order 15(4) which has been reproduced above.
7. Mr. A. Hafeez, the learned Advocate for the respondents on the other hand had submitted that under Standing Order 15(4), it was obligatory upon the employer to bring to the notice of the employee, the acts of misconduct within one month of the alleged act of misconduct, but, it was not necessary for him to issue a formal charge-sheet or show-cause notice within this period. It is submitted that each act of misconduct was brought to the notice of the appellant within one month of such misconduct as is apparent from various memos produced by the respondents which are admitted by the appellant and as such, n violation of the Standing Order 15(4) of the Ordinance has been committed h the respondents.
8. In support of his contention, Mr. A. Hafeez, the learned Advocate for the respondents has relied upon certain decisions of this Tribunal. In the case o Usman Ghani v. Globe Textile Mills Ltd., Karachi, reported in 1980 PLC 1213, this Tribunal had observed that under Standing Order 15(4), the alleged misconduct was to be brought to the notice of the accused and issuance o charge-sheet was not essential legal requirement. In that case charge-sheet and complaint forming basis thereof was supplied to accused in Urdu, and it was held that the requirement of Law had been completed. In that complaint it was prayed that the action be taken against the accused person. In the case of S.M. Irfan v. Messrs Pakistan Defence Officers Cooperative Housing Society Ltd., Karachi, reported in 1981 PLC 192, it was observed by this Tribunal "that clause (4) o Standing Order 15, does not provide for the service of the charge-sheet nor does it make mention of the charge-sheet. All that said Clause requires is that the act of misconduct should he brought to the notice of the offending workman within one month of its coming to the notice of the employer. It was, therefore, held that the delayed service of charge-sheet subsequently, in circumstances was not exceptionable." In the case of Samiullah Khan v. Messrs Avery Scales Ltd., Karachi, reported in 1980 PLC 701, it was observed by this Tribunal that under Standing Order 15(4), the accused was only to be informed, in writing, of alleged misconduct within one month of date of such misconduct or date on which alleged misconduct came to the notice of employer. It was further observed that the charge-sheet was not specific requirement of clause (4).
9. With due respect to the aforesaid findings of my learned predecessor, it may be pointed that there is not only one requirement of Clause (4) of Standing Order 15, hut, there are 3 requirements.
On a careful study of Clause (4), which has been reproduced above, it will be open that not only that alleged misconduct is to be brought to the notice of the employee within one month, but he has also to be given an opportunity to explain the circumstances alleged against him. These 2 requirements are contained in one sentence and are joined with word "and". In the next sentence, the third requirement is laid down that there should be an independent enquiry. The question that requires consideration is whether the obligation of the employer to bring to the notice of the accused the alleged misconduct and his obligation to give the employee an opportunity to explain the circumstances alleged against him are to be complied with simultaneously or these two requirements arc independent of each other and can be complied with separately. In other words, whether it will be proper and in accordance with spirit of the Law that an employee should he told that he had committed a misconduct separately and then after several days, months or even years at the pleasure of the employer, he may be served with show-cause notice as to why action should not be taken against him for the alleged misconduct which was brought to his notice sometime back. This would keep the democles sword hanging upon the neck of the workman and would defeat the purpose of the clause (4) which prescribes limitation for such action. Ordinarily an employee would not like to pick up any row with the employer and would not reply or retort even to employers unjust accusation, unless simultaneously with the accusation he is also threatened with disciplinary action. The word "and" is used in the sentence whereby the 2 requirements of bringing to the notice the misconduct and also of being given opportunity to explain circumstances, are joined and in my opinion, word "and" used here is conjuctive and not disconjuctive. The 2 requirements of bringing to the notice of the employee, the accusation and calling upon him to explain his conduct are to be complied with the employer simultaneously in one process and cannot be bifurcated. The same learned Tribunal in another case of Messrs Mushtaq Textile Mills, Hyderabad v. Muhammad Sharif and another, reported in 1981 PLC 597, had observed that the domestic enquiry must be promptly conducted and delay was not only violative of spirit of Standing Order 15(4), but, also a source of harassment to the accused. This principle would be applicable not only with regard to the proceedings in enquiry, but, to all the proceedings which in fact would start as soon as the charge of misconduct is communicated to the respondent.
This view would negate the contention, that the show-cause notice calling upon the employee to explain the circumstances, can be given even at a later date after misconduct had been earlier brought to the notice of the accused person.
10. In the instant case, the memos with regard to alleged acts of omission or commission or negligence only communicated a single act of alleged negligence or inefficiency in each case. The single act of such alleged misconduct is admittedly not punishable under clause (3) of the Standing Order 15. It is only the charge of repeating the acts of said misconduct for which the respondent had been punished. Such charge had not been specifically brought to the notice of the appellant prior to the charge-sheet, dated 14-10-1986. It is argued by Mr. A. Hafeez that the fact that each act of misconduct was brought to the notice of the appellant separately for a number of times in a brief period extending from 18-2-1986 to 23-4-1986, would amount to a charge of frequent repetition of the acts of omission or commission referred to in Clause (i), which makes in effficient, dilatory, careless or wasteful working, punishable. Such implication, no doubt, is there as argued by Mr. A. Hafeez, but, the charge for which an accused person is to be punished is not only to be implied but is to be specifically mentioned in the charge-sheet and brought to his notice. No doubt, the work 'charge-sheet' is not used in clause (4) and no specific form is prescribed, but, the reading of the Clause (4) would show that the communication from the employer to the accused person should show the specific acts of misconduct which the accused is alleged to have committed within one month of the communication and also should call upon to explain the circumstances. To be more specific the charge communicated under each Memo would at the most amount to a charge under Standing Order 15(1)(ii)(d) for which punishment is provided under Standing Order 15(1)(i). However, the appellant had been punished for a charge under Standing Order 15(3)(j) read with Standing Order 15(1)(ii)(d). Such a charge was never communicated to the appellant prior to the issuance of the letter, dated 14-10-86. Judging from this view only the communication or show-cause notice, dated 14-10-1986 would be deemed to have been issued under Standing Order 15(4) and not the previous memos, which only brought to the notice of the appellant individual acts of inefficiency or negligence and did not call for explanation. Admittedly, the acts of negligence or inefficiency for which the enquiry was held and for which the appellant had been punished pertained to the period from 18-2-1986 to 23-4-1986. Even, in the letter, dated 23-4-1986 referred to in the show-cause notice, dated 14-10-1986, the appellant was not called upon to explain the circumstances against her, but, it only expressed the hope that she would not give any cause in future to necessitate issuance of such memos. This letter, dated 23-4-1986 or the earlier memos, therefore, could not be said to have been issued in pursuance of clause (4) of Standing Order 15, but, the letter, dated 14-10-1986, alone was issued under Clause (4). However, the charges contained therein are for the period which pertained to a period much earlier than one month before the issuance of this show-cause notice and, therefore, is violative of Standing Order 15(4).
11. Mr. A. Hafeez, the learned Advocate has also relied upon the decision of this Tribunal in the case of Januario Nunes v. The Algemenus Bank Netherland N.V. Karachi, reported in 1989 PLC 586.
However, in that case, the accused was proceeded for 2 charges. One was of remaining absent from duty on false ground on 1-4-1985, and the other was for making false allegations against the superiors, in his letter, dated 14-5-1985. He was charge-sheeted on 27-5-1985 but he was acquitted of the first charge by this Tribunal. The second charge was obviously with regard to a misconduct allegedly committed by the accused person within one month of the charge-sheet. In the instant case, the show-cause notice after expiry of one month of the misconduct coming to the knowledge of the employer is violative of the provisions of Standing Order 15(4).
12. The next point that also requires consideration is whether the enquiry held against the appellant was fair and in accordance with the principles of natural justice and the usual practice and procedure for such enquiries. Admittedly, the enquiry was first fixed on 26-10-1986, but, the appellant sent an application alongwith the medical cetificate on 26-10-1986 for leave on medical ground for 10 days upto 4-11-1986, and had also prayed for the postponement of the enquiry.
According to the Medical Certificate issued by Dr. Mehta, which is Annexure `G-1', the appellant was suffering from severe depression, weakness and low blood pressure and she was advised complete bed rest for at least 10 days. Apparently this cetificate was disbelieved by the respondents, who deputed 2 Doctors to examine her. The report of the Dr. Aziz Khan discloses that on 30-10-1986, he visited the appellant for examination and she seemed nervous and anxious. In his opinion, however, nothing was abnormal and that she was fit to resume work. This certificate is dated 30-10-1986. Dr. Arif Herekar, Consultant Neurologist also examined the appellant on 31-10- 1986, and in his opinion, though the Lady demonstrated some anxiety and during the interrogation was continuously complaining of Phobia at work, but, she seemed quite fit to attend her routine duties. Thereafter the enquiry was fixed on 2-11-1986, but, because the notice could not be served upon the appellant, the enquiry was postponed to 3-11-1986. On 3-11-1986, admittedly the Enquiry Officer received a telegram from the appellant requesting for postponement of the enquiry because she had received the intimation very late and requested sometime for preparation. The enquiry papers further revealed that the Enquiry Officer sought instructions from Mr. L.T. Paxton, Manager of the respondent, who had charge-sheeted the appellant and ordered enquiry against her and finally passed the dismissal order. Enquiry papers further show that under instructions of Mr. L.T. Paxton, the Enquiry Officer proceeded ex parte against the appellant.
13. Even from the medical certificates, it is clear that the appellants was under depression and tension. Though she may have been considered technically fit by the 2 Medical Experts deputed by the Superintendents to examine her, still, there was no such urgency that she did not be given sufficient time to get out of the depression and make proper preparation to defend herself, in the enquiry. She had requested for postponement of the enquiry upto 4-11-1986. The Heavens would not have fallen if she was granted this postponement. Such an enquiry cannot be considered fair and proper and it cannot be said that in the enquiry, the appellant was given sufficient opportunity to defend herself. The Enquiry Officer also does not appear to have acted independently, but, admittedly he proceeded with the enquiry ex parte under instructions of Mr. L.T. Paxton.
14. The charges against the appellant mostly are that she committed mistakes in taking dictation from Mr. L.T. Paxton and typing down the same. Her explanation was that she was not able to understand the pronunciation of Mr. L.T. Paxton. English is spoken in a number of countries, but, the pronunciation in different countries are different and accents are also different. Many times, even for a person, who is well versed in English, it will be difficult to understand the accent of another person from different country. That would not necessarily mean, that person, who is not able to understand the pronunciation is in-efficient in work. The appellant is Pakistani, whereas Mr. L.T.
Paxton is probably an Englishman, therefore, this explanation of the appellant does not look unbelievable or improbable. It may be pointed that Mr. L.T. Paxton had not chosen to appear before the Enquiry Officer or even before the learned Labour Court, therefore, neither the Enquiry Officer nor the learned Labour Court, were in a position to disbelieve the explanation of the appellant or could say that the accent and pronunciation of Mr. L.T. Paxton were understandable by the Pakistani workmen and the mistake in dictations and typing of the same by the appellant were due to her inefficiency. Mere word of other Secretary, Mrs. Kazmi that she was able to understand the accent and pronunciation of Mr. L.T. Paxton would not necessarily disprove the explanation given by the appellant.
15. The appellant has also alleged mala fides against the respondents. It is alleged by her that she was eligible to retire after 25 years service and that she was entitled to certain benefits and privileges on such retirement and to deprive her of those benefits, charges of inefficiency were levelled against her and she was dismissed from service. It is a settled Law that the mala fide has to be specifically pleaded and the burden of proof of mala fide is upon the party who alleges the mala fide. Reliance is placed on the case reported in PLD 1974 SC 151. I need not discuss further this settled position of Law. However, in the instant case, the mala fide is specifically pleaded as described above and these averments are repeated by the appellant in her evidence also. Apart from her oral evidence, mala fide can be gathered from the circumstances of the case.
Admittedly the appellant had put in about 23 years of service and she was working with Mr. L.T.
Paxton since 1981. All of a sudden, within a period of less than 2 months, a number of memos were issued to her. In all the memos. and letters, she was asked to improve her efficiency and discipline.
Even, on 13-10-1986, in the letter, which has been produced by the parties, the appellant was asked to improve her working, but, all of a sudden on 14-10-1986, she was charge-sheeted for the misconduct for the period between 18-2-1986 to 23-4-1986 and was given only 2 days to submit explanation. There is nothing on record to show as to what happened between 13th and 14th October, 1986 to warrant show-cause notice on 14th, whereas on 13th, same officer only asked the appellant to improve her working. The conduct of the respondents in making unholy haste in proceeding with the enquiry, in spite of the request of the appellant for postponement on medical grounds, supported by the medical certificate, the refusal of the Enquiry Officer to postpone the enquiry on receiving telegram from the appellant for postponement on the ground that she was informed late of the enquiry and could not prepare properly and that refusal also under instructions of Mr. L.T. Paxton are the circumstances which appear to support the allegations of the appellant with regard to mala fide. As pointed above, Mr. Paxton has not come in witness Box to deny these allegations.
16. It is further contended by the appellant, that reply statement could not be taken as evidence to rebut the averments of the appellant made in her grievance application and in her evidence because neither the reply statement was on oath nor the person who had signed the reply statement had been examined. Reliance is placed on PLD 1972 SC 25. However, there appears to be force in the contention of Mr. A. Hafeez that the averments of the appellant can be repelled through documentary evidence as well as admissions, if any, in the cross-examination by the appellant. I need not go in detail in this aspect of the case as the impugned order of dismissal is not maintainable because of violation of Standing Order 15(4), because the enquiry held was not proper and fair and because the Enquiry Officer did not act independently.
17. It is contended by Mr. A. Hafeez that the grievance petition is not maintainable as no proper grievance notice has been served upon the employer. Grievance notice admittedly has been sent to Manager Pakistan & Iran British Airways, Hotel Holiday Inn, Karachi. It is contended that the employer of the appellant was British Airways and not the Manager of Pakistan Iran British Airways.
I find that the show-cause notice which is Annexure 'C' as well as the order of dismissal of the appellant which is Annexure T are signed by Mr. L.T. Paxton as Manager, Pakistan & Iran British Airways. In absence of any other evidence as to which specific authority was the employer of the appellant, a person who had issued dismissal order would be deemed to be employer, who had described himself in the 2 important documents as Manager, Pakistan and Iran British Airways. The grievance notice, therefore, was sent to the proper person, the objection of the respondents is not sustainable.
18. In view of the above discussion, in my view, the impugned order of the learned Labour Court as well as the dismissal order of the appellant are not maintainable. I, therefore, set aside both the orders and allow the appeal. The appellant is ordered to be reinstated in service. However, admittedly she is gainfully employed with Messrs Rocket & Coltman Ltd., since February, 1987.
Therefore, the appellant is entitled to back benefits up to the date of her employment with Messrs Rocket & Coltman. The orders are to be implimented within two months.