I his is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968, against an order dated the 30th October 1968, of the Second West Pakistan Industrial Court, Karachi. The impugned order was passed on an application under section 30(2) of tae Industrial Disputes Ordinance, 1959, for permission to dismiss the appellant. The facts briefly put are these.
2. The appellant Muhammad Khalid Khan was employed as Driver in the G. T. S, sometime in April 1963. He was required to give the details of his past experience and the name of employer and the period of service in the printed form of application for employment as Driver in Road Transport Service. He duly filled to the form and was appointed as Driver sometime in April 1963. It, however, came to the knowledge of the District Manager, Hyderabad that he had been dismissed by WAPDA prior to his appointment as Driver by the Government Transport Service. A notice on 7th February 1966, was given by the District Manager to the appellant to state if he had been dismissed by WAPDA. He received the notice and stated in his reply dated 14th February 1966, Exh. A. W. 1/4, that be was employed in the WAPDA but was discharged when the work was finished. He definitely stated in his reply that his services were terminated by employer either on his resignation or kill completion of the work. It appears that the District Manager was not satisfied with the explanation of the appellant. He asked the Inspector Anti-Corruption, Hyderabad to find out as to how the services of the appellant had been terminated by WAPDA. The Inspector in his letter of 28th March 1967, addressed to the District Manager stated that his enquiry revealed that his services were terminated on 21st July 1962, on account of misbehaviour and insubordination. He had also obtained an attested copy of order of the Executive Engineer terminating his services, on account of misbehaviour and insubordination. He has sent the same along with his letter to the District Manager. Thereafter the appellant was charge-sheeted on 3rd April 1967, Exh. A. W. 1/7 before the Industrial Court for having concealing the fact that he was dismissed by WAPDA on 21st July 1962, for misbehaviour and insubordination.
3. The particulars of the charge-sheet as given in Exh.A. W. 1/7 runs as under :-
(i) That you obtained the service of Driver by concealing the record of your past service,
(ii) that you did not fill the application form for the appointment of the driver correctly
(iii) that you did not disclose that you had been dismissed for misbehaviour and insubordination,
(iv) that you did not comply with condition No. 5 of your appointment letter.
4. The appellant replied to the charge-sheet on 7th April 1967 as under:-
(i) That the charge-sheet was against the settlement between the Union and the Road Transport Corporation inasmuch as the charge-sheets vi ere to be issued within 15 days,
(ii) that the appellant has filled in the application form correctly according to his recollection,
(iii) that condition No. 5 of the letter of appointment was against the constitution inasmuch as the mere fact that one was dismissed from service for misbehaviour could not be a bar to his re- employment; and
(iv) that the appellant has been charge-sheeted because of his Union activities.
The Enquiry Officer, after recording the evidence of the Inspector, Anti-Corruption and the statement of the appellant and his two defence witnesses, tame to the conclusion that the appellant was guilty of the charge of misconduct. The District Manager agreed with the finding of the Enquiry Officer and ordered that an application under section 30(2) of the 1. D. O., 1959 be made for permission to dismiss the appellant. The learned Chairman of the Industrial Court recorded the statement of one Talib Hussain on behalf of the respondent and that of the appellant. He came to the conclusion that the domestic enquiry was fair and impartial. He granted the permission asked for to dismiss the appellant.
5. Mr. Majeed, the learned Representative for the appellant raised a number of points before me whichpropose to dispose of separately.
6. There is no force in the contention that the appellant should have been charge-sheeted within 15 days when the notice to show cause against the alleged misconduct were given to him in the first instance. There is no force in this contention. The learned Representative was unable to show as to how the appellant has been prejudiced by the delay in the charge-sheet mere delay in the charge-sheet is not sufficient to vitiate the finding of the domestic enquiry.
7. It was very strenuously contended by Mr. Majeed that the letter terminating the services of the appellant on the ground of misconduct and insubordination was not produced before the Enquiry Officer. It was submitted that in the absence of the order terminating the appellant's services for misconduct it cannot be held that the appellant was dismissed for misconduct. There is no force in this contention. Before the Enquiry Officer Mr. Abdul Rauf, Inspector Anti-Corruption, Hyderabad was produced. He stated that on the directions of District Manager he made enquiries about the appellant. He learnt that the appellant was dismissed by Executive Engineer (Construction), Hyderabad on account ofinsubordination and misbehaviour. " He further stated that he had obtained a certificate to that effect and gave the same to the District Manager. The appellant was asked to cross-examine him. He stated that he does not want to cross-examine him. It would therefore appear that the appellant clad admitted the statement of the Inspector as to the order of the Executive Engineer, and the fact that he had given 'the same to the District Manager. In view of this admission it was not necessary to produce the order dismissing the appellant. g. In the next place it was contended that the appellant was not bound to disclose the fact that be was dismissed for misbehaviour and insubordination. It would appear from the application fours that he was required to state his past ex--perience. The last employment which he held was in WAPDA.
As he was dismissed from that place on 21st July 1962, he has given his experience in the application form only up to 1960. He, therefore purposely concealed the fact that he was driver in WAPDA and was dismissed for insubardination and mis--behaviour. I would hold that the application form required that the appellant would disclose his employment in WAPDA.
9. There is no force in the contention that the appellant had been dismssed as a result of his Union activities. Mere allegation on the part of the appellant would not -take the place of proof. AU that his two defence witnesses stated before the Enquiry Officer was that they were present when the appellant was giver application forth to fill in. He said to Mr. Ashfaq that he did not know how to fill in the form. Mr. Ashfaq told him that he should sign the same and the rest will be done later on.
That the defence witnesses were telling -lies is evident from the fact that the appellant, as would appear from the application form, had passed Middle Class Examination and has signed the form in English. Moreover this statement does not support the allegation of the appellant that he was dismissed for Union activities. He did not give his statement before the Enquiry Officer. He stated before him that his reply to the charge-sheet should be taken as his statement before the Enquiry Officer. A perusal of the charge-sheet will disclose that he has not alleged any specific instance against any -officer of the R. T. C. He has made general allegation that he has been prosecuted for his Union activities.
10. Lastly it was very strenuously contended that the charge against the appellant came to minor offence which was punishable only with fine. Under Order 13(1)(ii)(c) making false acid misleading statements was punishable with fine only' and not dismissal from service. Order 13(l)(fi)(c) does note define what is false or misleading statement. Order 13(l) ii not exhaustive. It only mentions some of the acts and omis-sions which are misconduct. It is not exhaustive of what acts and omissions are misconduct. Concealment of such an important fact as, dismissal from service for misbehaviour an insubordination would amount to misconduct. The application form which the signed applicant singed mentioned that if any of the entries were fours:, to be incorrect or false he would be summarily dismissed from service without assigning any cause. The entries are incorrect inasmuch as he did not mention his last employment. Order 13 is not exhaustive of the cases of misconduct.. It only provides that cases of misconduct specified therein shall be treated as such for the purpose of Standing Order. This does not mean that there cannot be any other type of misconduct. In this connection reference may be made to an unreported case of the Supreme Court in Civil Appeal No. K-52 of 1964, Karachi Steam Roller Flour Mills Limited v. Karachi Steam Roller Flour Mills Employees' Union. S. A. Rahman, J. who delivered the judgment of the Court observed that Order 13 of the Standing Orders was not exhaustive. In my opinion the past conduct of the employee in another Government Department is very important consideration for re- employment in another Government Department. If the R. T. C. had known the character of the appellant that he had been dismissed from' service for insubordination and misbehaviour he would not have been employed by it.
11. The question is whether the conduct of the appellant was comparable in gravity to the categories specified in Order 13(3) and should not fall within the lesser categories of improper conduct. Gravity of the act attributed to a work ma will depend upon the circumstances of each case. In the present case, the gravity of the act can be judged by the fact that i he had disclosed that he had been dismissed by WAPDA, the Road Transport Corporation would not have employed him, The misconduct, therefore, is serious enough to call for major punishment.
The appeal, for the reason given above; is dismissed.