' Petitioner was a driver in the Post Office Department on account of alleged misbehaviour with the Superintendent, Post Office, D.G.. Khan on 11-11-1987 he was proceeded against departmentally and after regular inquiry he was awarded major penalty of dismissal from service. This was vide order, dated 2-5-1989 passed by Superintendent of Post Office, D.G. Khan. Petitioner's grievance petition was dismissed by the Labour Court .No,9, his appeal before the Punjab Labour Appellate Tribunal met the same fate vide order dated 18-4-1990.
2. Learned counsel for the petitioner has challenged the concurrent orders on the grounds that petitioner was complained against by Amjad Hussain, Superintendent of Post Office, D.G. Khan who issued charge-sheet, he appointed the Inquiry Officer, appeared as a witness in the inquiry and passed final order of petitioner's dismissal from service. The procedure adopted, according to the learned counsel, is violative of principles of natural justice as no one can be a judge of is own cause, that petitioner had litigation with the previous Superintendent Post Office which is evident on record and the entire action taken was maliciously motivated.
3. Learned counsel for the respondent-Post Office, on the other hand, defended the impugned orders by submitting that the concurrent orders neither reflect any jurisdictional defect nor misreading of evidence to warrant interference under Article 199 of the Constitution. For a better appreciation of the points raised in this petition it is imperative to refer to the definition of "misconduct" appearing in section 13(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which reads as under:-- "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,
(b) theft, fraud, or dishonestly in connection with the employers' business or property;
(c) wilful damage to or loss of employers' goods or property.
(d) taking or giving bribes or any illegal gratification,
(e) habitual absence without leave or absence without leave for more than ten days,
(t) habitual late attendance,
(g) habitual breach of any law applicable to the establishment,
(h) riotous or disorderly behaviour during working hours at the establishments or any act subversive of discipline,
(i) habitual negligence or neglect of work,
(i) frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month,
(k) striking work or inciting other to strike work in contravention of the provisions of any law, or rule having the force of law."
' A Division Bench of this Court in General Manager, Pak Amercian Fertilizers Limited v. Industrial Court Lahore (PLD 1966 (W.P.) Lahore 822), referring to the meaning of the expression "wilful" given in Black's Law Dictidnary observed, at page 824, held as under:-- ' "an act done with stubborn purpose but not with malice, act done intentionally knowingly and purposely as distinct from an act done carelessly, thoughtlessly, heedlessly or inadvertently. We consider that the word 'wilful' has been used in clause (a) of subsection(3) in the above sense".
' The expression "riotous" or "disorderly" appearing in section 13(3)(h) of the Industrial and Commercial Establishment Ordinance have been defined in Black's Law Dictionary. The term "riot" has been defined as under:- ' "The terms riot means a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result, in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threats, where the performance of the threatened acts or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other or to the persons of any other individual.
' A person is guilty of riot if he participates with two or more others in a course of disorderly conduct: (a) with purpose to commit or facilitate the commission of a felony or misdemeanour; (b) with purpose to prevent or coerce official action; or (c) when the actor or any other participant to the knowledge of the actor uses or plans to use a fire-arm or other deadly weapon."
' Similarly the expression "disorderly", as per Black's Law Dictionary is as follows:-- "A term of loose and indefinite meaning (except when defined by statutes), but signifying generally any behaviour that is contrary to law, and more particularly such as tends to disturb the public peace or decorum, scandalize the community, or shock the public sense of morality. An offence against public morale, peace or safety.
' A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or slam, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening or in violent or tumultuous behaviour; or (b) makes unreasonable noise or offensively coarse utterance, gesture of display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serve no legitimate purpose of the actor". The expression "riot" came up for consideration ' In Damodardas v. Rubby General Insurance Company (AIR 1965 Madhya Pradesh 32) it was held, at page 33, as under:-- "Neither 'riot' nor 'civil commotion' has been defined in the policy of insurance. But, it is a settled rule of judicial construction that where terms of legal art are used in a policy of insurance, they must be given their technical meaning. Therefore, 'riot', when it occurs in a policy of insurance, is to be interpreted with the. Special meaning attached to it by the 'criminal law'. London and Lanqashire Fire Insurance Co. v. Balands Ltd., 1924 AC 836 at p.847. The exception of 'riot' in a policy of insurance must be understood in its strict legal sense and nor in its popular signification: Field v. Receiver of Metropolital Police (1907) 2 KB 853. The principle is that where words are used in an instrument which have a well-recognized legal connotation, it will be presumed that they have been used in that sense, unless a contrary intention clearly appears from the context or other relevant evidence.
The word riot' is a word which has a legal meaning, and in our opinion that is its primary meaning; and before we can be persuaded to give it any other meaning, we must be fully satisfied that from the instrument itself or from the circumstances of the case, the parties intended to give it any other meaning. The word 'riot' in the policy of insurance in this case shall, therefore, have to be ,given its legal meaning, which it has in the Indian Penal Code."
' The word "riot' has been defined in section 146 of the P.P.C. Which reads as under:-- "Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."
' The charge against the petitioner, in the instant case was of misconduct i,e, he allegedly misbehaved with the Superintendent in D.G. Khan Office and acted in a naughty and insulting manner. The said Superintendent Amjad Hussain while appearing as a witness stated as follows:-- {{URDU TEXT}} ' He further added that he had merely sent him App-30 form, over which the petitioner got annoyed and addressed him in an aggressive and insubordinate tone. It is further mentioned in his statement that he tolerated his terse tone because otherwise he was about to attack.
' Muhammad Ishaque Clerk, working under Amjad Hussain Superintendent while appearing during inquiry stated as under:-{{URDU TEXT}} ' He, however admitted in cross-examination that when he went back to his room on the day of occurrence. Muhammad Raman petitioner returned application form APP-38 having filled it.
Statement of Syed Irshad Hussain, who is a Senior Clerk in the department is also to the same effect. Arshad Mehmood who is another employee in the same office stated before the Inquiry Officer that on 11-11-1997 he had delivered the letter with regard to filling of APP-38 form to the petitioner and the petitioner after having filled the same, returned it to him.
4. A critical analysis of the evidence led against the petitioner would show that he spoke to Amjad Hussain Superintendent/complainant in a "commanding style" (as per statement of Amjad Hussain' complainant); that the complainant tolerated his bitter tone polightly otherwise he was about to attack that he used abusive words when talking to Amjad Hussain (as per statement of Muhammad Ishaq) and that he "quarrelled" and took up a "row" with Amjad Hussain complainant.
5. In the entire evidence led, the exact abusive language used by the petitioner was not brought on record. The evidence led merely was an expression of opinion by the complainant and other witnesses qua petitioner's behaviour i,e, he had a commanding style and used abusive language.
However, it is in evidence as well that the petitioner had returned the APP-39 form after filling it and having signed it. Thus, there was substantial compliance to the order passed by his superior Amjad Hussain complainant. The conduct, therefore, did not fall within the mischief of section 13(3)(a) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
' The words "riotous" and "disorderly" have not been defined in the Ordinance (supra). These words, therefore, will have to be interpreted in their legal connotation as held in Damodardas's case referred to above.
' The word "riot" in this context would mean a conduct which reflects threat or use of force of violence by an unlawful assembly or by any member thereof as used in section 146, P.P.C. Or it falls within the mischief of the definition as given in Black's Law Dictionary quoted above. A conduct would only be disorderly if it "tends to disturb the public peace or decorum, scandalize the community, or shock the public sense of morality", as per the definition of disorderly conduct given in Black's Law Dictionary.
6. The whole evidence brought on record would show that no overt act is attributed to the petitioner during the occurrence in question which could objectively prove that the conduct was riotous or disorderly to bring his case within the ambit of penal provision under which he was proceeded against.
7. Both the learned tribunals below i,e, the Punjab Labour Court as also the Punjab Labour Appellate Tribunal did not consider the evidence led and proceeded to dismiss petitioner's grievance petition on the ground that the petitioner had admitted the charge-sheet (para. 7 of the order dated 11-2- 1990 passed by the Punjab Labour Court). Even the learned Punjab Labour Appellate Tribunal while dismissing petitioner's appeal referred to the evidence led in a perfunctory manner and held" all the witnesses stated that the tone of the appellant was very offensive". The approach adopted by the. Learned Courts below was arbitrary and conjectural which tantamount to non-exercise of the jurisdiction vested in them and would warrant interference in the Constitutional jurisdiction of this Court.
8. There is another aspect of the matter. Admittedly, the Inquiry Officer in the instant case was appointed by Amjad Hussain Superintendent Post Offices who was complainant against the petitioner. He also framed the charge and appeared as a witness as well. It is in evidence that the petitioner did make an abortive attempt to have the Inquiry Officer changed. This is admitted by R.W.1, the Inquiry Officer, in his cross-examination. The petitioner had rightly objected to the appointment of the Inquiry Officer in question by an officer who was complainant against him. It has consistently been held by the Courts that even in the domestic inquiry, the old-age principle that justice should not only be done but it should be seen to have been done, must be followed. In General Manager Lyallpur Cotton Mills v. Sardar Ahmad (1997 PLC 139), the order of reinstatement of a worker was upheld at page 141, it was held as under:-- ' "Even when the proceedings are taken by a domestic tribunal or by bodies other than. Courts of law, the minimum these have to do consistently with elementary justice and fairplay is to show that they are acting on their own i,e, independently and impartially between the parties arraigned before them. An ex facie partiality or irregularity knocking out the minimum norms of law and justice would be of no consequence. It is quite elementary that a person who is a witness cannot function as a Judge or on behalf of the Judge. It is quite obvious that the recording of evidence or proceedings is part of the judicial function. A party to the proceedings or its witness cannot take part in the recording of evidence or proceedings nor in actual decision making. The position and the places of the parties and the witnesses on the one hand, and of the persons making decision or taking part in the proceedings culminating in the decision on the other, are mutually exclusive and distinct, 'justice has not only be done but has to be manifestly done'. This is an age-old addage."
9. For what has been discussed above, the order of termination of the petitioner service dated 2-5- 1989, that of the Punjab Labour Court dated 11-2-1990 as also of the learned Punjab Labour Appellate Tribunal dated 18-4-1990 cannot be sustained in law, the same are set-aside and the petitioner is re-instated in service.
10. So far as the question of back benefits is concerned, no evidence was led by the petitioner during the inquiry or at any subsequence stage that he was not gainfully employed during the period he remained terminated from service. Even in this Constitutional petition, petitioner has not claimed back benefits, therefore, he is not entitled to the back benefits.
11. The petition is allowed in terms noted above with no order as to costs.