This is an appeal under section 37 of the Industrial Relations Ordinance, 1969, against the judgment, dated 30-4-1997, passed by the learned Second Sindh Labour Court, Karachi dismissing the grievance Petition No.36 of 1987.
2. .The appellant was employed in the factory of the respondent since 1983, as Packer.
3. She was issued a charge-sheet, dated 5-6-1986 alleging, inter alia, that she was directed to work, instead of empty bottles' checking, to labelling which she refused. The said charge-sheet is reproduced below:----- Registered A.D. 5-6-1986 MissN'ighatMatin,Miss Nighat Matin, G-- CardNo.76Packer6/7, Block No.6, Clifton Searle Pakistan (Pvt.)Road, Karachi Ltd., Karachi Sub: Charge-sheet It has been reported that on 4-6-1986 at 8-16 a.m. you were directed by your Belt Checker of Line No.2 to work instead of empty bottle checking to labelling but you refused to do so after that packing Incharge Mr. S. Tanveer Hussain himself instructed you in presence of Mr. Zafar Alain Khan but you flatly refused to the lawful instruction of your superiors.
Your above act is a misconduct under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Show cause within a week from the receipt of this charge-sheet as to why disciplinary action should not be taken against you under the law. for SEARLE PAKISTAN (PRIVATE) LIMITED.
(Sd.) .
(H. U. KHAN), Factory Manager. "
The said charge-sheet was received by the appellant under her signature on the very day i.e. 5-6- 1986. The said charge-sheet was replied by her through her letter, dated 12-6-1986 which, however, did not contain a denial to the said incident as stated in the charge-sheet. She simply asked for a copy of the report against her to give a reply to the charge-sheet. The Factory Manager, referring to her reply, dated 12-6-1986, found the same unsatisfactory. She was informed by letter, dated 17- 6-1986 that "domestic enquiry will now be conducted on 22-6-1986 at 8-30 a.m. Mr. Zafar Aziz, Planning Manager, has been appointed as Enquiry Officer". She was thus directed to participate in the enquiry alongwith her witnesses. In case she failed to attend the enquiry the same will be conducted ex parte. By letter, dated 8-7-1986 which was received by the appellant at 4-45 p.m. on the same day under her own signature wherein it was stated that she did not participate in the enquiry held on 22-6-1986. As she was absent on that day another opportunity was given to her to defend by fixing the next date of enquiry on 10-7-1986 at 8-30 a.m., but she failed to appear. Having again failed to appear before the said officer on 10-7-1986, the enquiry was adjourned to 20-7- 1986. On that date, she was again absent. However, she was given a last opportunity to appear and defend herself against the charge, by letter, dated 23-7-1986, which was received by her on the same day at 3-40 p.m., fixing as 27-7-1986. Again she failed to appear before the Enquiry Officer and participate in the enquiry. The enquiry against the appellant was, thus, closed ex pane. On September 8, 1986, a second show-cause notice was issued to the appellant by the Factory Manager, which was received on the same day under her signature. She paid to heed to second show-cause notice which called upon her to show cause, by which she was informed that the Enquiry Officer has submitted his report and he has found her guilty of the charge levelled in the charge-sheet. She was, thus, required to explain within 24 hours on receipt of the second show- cause notice, referred to above, as to why disciplinary action leading to her dismissal be not taken against her. She was also directed to appear personally on 9-9-1986 at 4-00 p.m. in the office of thefactory Manager. The said show-cause notice for the sake of convenience, is reproduced as under:-- "Miss. Nighat Matin, Card No.76, Packer Subject: Second Show Cause You were issued with charge-sheet on 5-6-1986 and thereafter, you were issued with letter of enquiry to participate in the enquiry. In spite of repeated opportunities, you have failed to participate in the enquiry, which was conducted ex pane. Enquiry Officer has submitted his report in which he has found you guilty of the charge leveled in the charge-sheet. Before any disciplinary action is taken against you are issued with second show-cause notice and required to explain within 24 hours on receipt hereof as to why disciplinary action leading to your dismissal is not taken against you. You are also directed to appear personally for hearing on 9-9-1986 at 4-OO.p.m. in the office of the undersiged. for SEARLE PAKISTAN (PVT.) LIMITED.
(Sd:)
(H. U. Khan), Factory Manager. "
She paid no heed to the said notice or direction to appear before the Factory Manager.
4. The Factory Manager was, thus, compelled to issue, to the appellant, the letter of dismissal from service on 24-9-1986, which was received by the appellant on the same day in the evening at 4-50 p.m. under her own signature. It seems beneficial to reproduce the same:-- "Registered A/D 24th September, 1986.
Miss Nighat Matin, Card No.76, Packer, G-67, Block No.6, Clifton Road, Karachi.
Subject: DISMISSAL FROM SERVICE You were issued with a charge-sheet on 5-6-1986 and thereafter, a letter of enquiry was issued to you to appear before Mr. Zafar Aziz, who was appointed as the Enquiry Officer.
The enquiry was fixed for 22-6-1986, 10-7-1986, 20-7-1986, 27-7-1986 and finally on 11-8-1986. You were informed these various dates of enquiry through letters which you have personally acknowledged. In spite of repeated adjournments you failed to participate in the enquiry which was conducted ex pane. The Enquiry Officer submitted his report wherein he has found you guilty of the charges leveled against you. These charges are misconduct punishable with dismissal under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Second show-cause notice was also given to you and you were asked to appear for personal hearing. You also failed to avail this opportunity.
Keeping in view the charges levelled against you which you have been established in. the domestic enquiry, you are dismissed from service with effect from 24-9-1986 (after the close of working hours).
Please collect your legal dues from our Accounts Department on any working day during working hours. Please also find enclosed herewith your service Certificate.
For Serale Pakistan (Pvt.) Limited (Sd.)(Sd.) 24-9-1986 (H.U. Khan),4-50. p.m.
Factory Manager Encl. Service Certificate. c.c.:
1. Accounts Department.2. Time Office/Security."
5. The appellant, on receipt of the said dismissal letter, sent a grievance notice, dated 16-12-1986, which was received in the Factory on 21-12-1986 and was replied by their letter, dated 31-12-1986.
The appellant filed a grievance petition on 19-2-1987 which was registered as No.36/1987, which was, however, dismissed.
6. I have heard learned counsel for the parties at length.
7. The first submission of Mr. Azmati, learned counsel for the appellant, is that the appellant was dismissed without providing proper opportunity to defend suit herself. This is belied by the record of the case. As many as seven letters, before passing the order of dismissal, were issued to her which were all received by her on the same day as she appears to have been working in the factory, but she neither replied to any one of them nor appeared before the Enquiry Officer. Except that in the reply, dated 12-6-1986 to the charge-sheet she stated that: It may be mentioned that there is no reference of in the charge-sheet. In any case, the charge- sheet was explicit to the charge, mentioned in the charge-sheet, as also pointed out by the Factory Manager in his letter, dated 17-6-1986. At best, there may be a complaint to the Factory Manager, signed by the Belt Checker and two other officers, named in the charge-sheet.
8. Mr. Mahmood A. Ghani, learned counsel for the respondent, relied on an authority cited as Shamsher Ali Khan v. Sindh Labour Appellate Tribunal and 2 others (1987 PLC 23), by a Division Bench of our own High Court, comprising of Nasir Aslam Zehid and Memoon Kazi, JJ. now Judges of the Supreme Court. Placing reliance on the above said authority, it may be held that a domestic enquiry resulting in dismissal for misconduct, containing sufficient details of allegations and the accused was afforded full opportunity to defend, mere non-supply of copy of complaint forming basis of charge-sheet, alleging or causing no prejudice to the appellant, is devoid of any force and merits no consideration. The learned counsel for the respondent also placed his reliance on a case reported as Badruddin Sabri v. M/s. Pearl Continental Hotel (1990 PLC 638) wherein it was held: "When charge-sheet fully described charges and substance, it was not necessary to supply copy of complaint."
9. I am; therefore, of the view that no exception can be taken to the enquiry, its procedure and finding the appellant as guilty following with a second show-cause notice was to levy of penalty/punishment as provided under Standing Order 15(4) of the Standing Orders Ordinance, 1968, which was also given to the appellant, as already referred to above.
10. Mr. Azmati; further submitted that the lapse, committed on the part of the' appellant, did not constitute misconduct as provided under Standing Order 15. The contention is entirely misconceived. It is clearly stated under Standing Order 15 (3)(a), of the Standing Orders Ordinance 1968 that, "willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior", shall be treated as misconduct.
11. The expression "misconduct" has been used in wise sense of improper conduct as held by the Supreme Court in a service matter as long back as 1962 in the Province, of East Pakistan v.
Muhammad Sajjad Ali Mazumdar (1962 PLC 528). This authority of the Supreme Court (PLD 1962 SC 71) was respectfully followed by our own High Court in a labour cases reported as Muhammad Riaz v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1993 PLC 301) wherein it was observed that: "It will, thus, be seen that any improper conduct on the part of a workman will constitute 'misconduct' for which the workman can be charge-sheeted by the employer. " ,
12. Earlier in 1972 PLC 83, the above said Supreme Court authority was also relied upon by Chief Justice (Rtd.) Inamullah Khan, Chairman, Appellate Tribunal, holding, "misconduct means improper conduct". What is a misconduct, depends upon the circumstances of each case. Standing Order 15 of the Standing Orders Ordinance, is not exhaustive of the cases of misconduct mentioned therein.
In this connection reference may be made to an unreported , case of the Supreme Court of Pakistan in Civil Appeal No.K-52 of 1964 (Karachi Steam Roller Flour Mills Limited v. Karachi Steam Roller Flour Mills Employees' Union).
13. Mr. Azmati, them, submitted about the harshness of punishment resulting in dismissal of the appellant, after going through the facts and law, in my view, the punishment is not harsh as the wilful disobedience of the order of her superiors, incharge, amounts to misconduct. In. the enquiry proceedings, the appellant did file her affidavit in evidence and examined herself as a witness. Two witnesses on behalf of the respondents Mr. Muhammad Ali and S. Tanveer Hussain and Enquiry Officer Zafar Aziz were examined, they filed their affidavits in evidence and appeared in the witness-box. It is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of Standing Order Ordinance, 1968; and if the employer chooses the dismissal, this Tribunal, it appeal, cannot sit in judgment over it to substitute with lenient punishment. The rule, laid down by the Supreme Court, in the case 'of Pakistan Tobacco C Co. Ltd. v.
Channa Khan and others (1980 PLC 981) is respectfully followed., 13-A. Lastly Mr. Azmati submitted that to do the work of labelling was outside the duty of the appellant. Admittedly, packing is an end product. It starts with empty bottles. First it has to be checked if it is not broken or otherwise leaking. Then those bottles are labelled of the Company showing other details as to the name of the Company, name of the product, date of manufacturing; date of expiry and the retail price. Once the bottles are checked and labels are fixed then those bottles move from the belt to the machine where the product is automatically filled in and sealed, so the labelling is a part of packing. In the instant case, Supervisor of the appellant asked her to attend to labelling of the bottles but she appears to have refused point blank to obey the direction of the Supervisor. The direction was not only reasonable but part of her duty, as and when required.
14. There was yet another point which though not argued by Mr. Azmati, but had come on the surface in the impugned judgment, that she was Vice-President .(female section) and she was victimized. But this allegation, to say the least, is preposterous, inasmuch she was elected Vice--- President long after the episode had started. She was charge-sheeted on 5-6-1986 and she was elected, as alleged, on 20-9-1986, when the episode was already over.
15. No other point was raised by the appellant or plea taken by Mr. Azmati in his arguments.
16. In the result, the appeal has no substance and is dismissed accordingly.