1. MUHAMMAD HALEEM, J.-The petitioner seeks special leave to appeal against the order of the High Court of Sind dated 3rd of . April 1978, by which Constitution Petition No. 46 of 1976 was accepted.
2. The facts which have given rise to this petition are that the third respondent was employed as an air-hostess and was a crew member of flight No. PK-20 1 /2107-74 which was scheduled to operate on 20th of July 1974. However, she did not join the fight and instead her sister, Miss Joycee Corria, replaced her as she had intimated her inability to do so for the reason that she was "busy settling family matter". This arrangement was acceded to by the petitioner. Again, on 22nd of July 1974, when she was deputed as stand-by for the flight to New York on 26th of July 1974, she expressed, through her sister, her inability to join the cabin crew of the flight as she had met with an accident and suffered a fracture of the finger. This time also her request was granted. Later, the petitioner learnt that she had left her base of duty and proceeded to Rawalpindi on 20th of July 1974, without taking prior permission as required under the Rules; and that further she failed to inform the petitioner her whereabouts. One Miss Latifa Datoo, another air-hostess at Rawalpindi gave her where--abouts, while seeking leave to enable her to attend to the third respondent who had suffered injuries in a car accident at Rawalpindi.
3. Thereupon, the Assistant Manager (Ground) of the petitioner, by letter dated 29th of July 1974, sought information from her as to whether she had left her base of duty with prior permission and in reply thereto the third respondent admitted that she had not taken the permission which was against the Rules; and that further she had been secretive of her visit to Rawalpindi because her parents were facing "a bit of problem for the last three months". As her explanation was not found satisfactory, the Flight Services Manager served on her a show-cause notice dated 28th of August 1974, to explain as to why disciplinary action should not be taken against her for leaving the base of duty without prior permission. In reply, the third respondent gave the same reason as aforementioned which was not considered satisfactory and the Flight Services Manager, thereupon, decided to hold an inquiry against her. Consequently, she was served with a Charge Sheet dated 10th of September 1974, which inter alia charged her for "unauthorised absence for five days from 22nd of August to 26th of August 1974". In her reply dated 21st of September 1974, to the show---cause notice she stated that she had "no more to say".
4. Mrs. Safia Hussain, the Enquiry Officer, thereupon, commenced the proceedings on 23rd of September 1974, and the third respondent appeared in person alongwith the Union Representative to plead her case. It was then that she pleaded that she had to rush to Rawalpindi, on 20th of July, as her mother was seriously ill. The Enquiry Officer recorded her statement and those who appeared in support of the charges levelled against her. She did not produce any witness in defence; and on the conclusion of the proceeding, the Enquiry Officer held her guilty of the charges.
5. Thereafter, a second show-cause notice dated 10th of November 1974, was served on her alongwith a copy of the Report of the. Enquiry Officer and she was given a week's time to explain as to why she should not be dismissed from service. In reply to it she stated that the finding as to her leaving the base of duty without prior permission was "a bit rash". She, however, cited Miss Latifa Datoo as a witness to justify her presence at Rawalpindi. Therefore, to give her a further opportunity to explain her conduct, the petitioner decided to reopen the proceedings. An intimation in this behalf was given to her to appear in person alongwith the Union Representative and her defence witness, if any, before the Enquiry Officer at 09-00 hours on 5of December 1974. On that date she was given an opportunity to cross-examine Dr. Sirajul Haq but she did not avail it. However, she examined Miss Latifa Datoo in support of her version. She was again found guilty of the charges and a second show--cause notice dated 12th of May 1975, was served on her and she was heard in person. But as her explanation was not found satisfactory, she was dismissed from service on 17th of May 1975.
6. She next served on the petitioner a grievance notice dated 11th of August 1975, under section 25-A of the Industrial Relations Ordinance, 1969, which was duly considered and a reply was sent to her on 28th of August 1975.
7. Thereafter, she filed an application under section 25-A of the Industrial Relations Ordinance, 1969, in the Junior Labour Court No. IV, Karachi, seeking redress against her dismissal. By order dated 14th of November 1975, the Junior Labour Court ordered her re-instatement holding that the alleged misconduct was of a minor nature which did not merit dismissal from service; and, accordingly, it substituted the punishment by stoppage of one annual increment.
8. The petitioner as well as the third respondent, appealed against this order to the Sind Labour Court No. V, Karachi. The petitioner succeeded whereas the appeal of the third respondent was dismissed as it was held that in the context of the nature of her employment as a member of the cabin crew, her absence from duty, without permission, amounted to misconduct for which the punishment of dismissal under Standing Order 15(3) of the West Pakistan Standing Orders Ordinance was proper.
9. This finding was given after the Labour Court had rejected her explanation for leaving the base without permission.
10. She, thereupon, challenged this order in the High Court through the aforementioned Constitution petition and succeeded as it was allowed. The High Court held that if she had left her base of duty without permission that would only be a disregard of a Rule punishable under Standing Order 15(1)
11. (ii)(a) of the Ordinance with reprimand or fine only. The High Court also took notice of the fact that the Enquiry Officer, in her first report, had recom--mended that her explanation be accepted but in the second report, without giving any finding that her explanation was not acceptable, held her guilty of the charges. The High Court further observed that if she had to be punished forth misconduct then the Enquiry officer should have given a finding that her explanation was false. It was contended on behalf of the petitioner in the High Court that the definition of misconduct under Standing Order 15(3)(a) was not exhaustive and that it would include an improper behaviour shown by the third respondent but the High Court rejected it on the short ground that to attract this provision the Enquiry Officer should have held that the third respondent had deliberately and intentionally not obtained permission before leaving the base; and on the facts of the case, the failure to take permission was a disregard or disobedience of a Rule within the meaning of Standing Order 15(I)(II)(a) which is visited with minor punishment and it was this provision which was violated. On the charge as to the failure to notify her whereabouts, the High Court held that no Rule was pointed out which could be said to have been violated; and, in any case, if it was an obligation, it could not be rated higher than a violation of a Rule.
12. On behalf of the petitioner Mr. A. A. Shared contended that her absence from base of duty was covered by clauses (a) and (h) of sub--section (3) of Standing Order No. 15. This contention is without substance. Clause (a) refers to insubordination or disobedience of any lawful and reasonable order of a superior. Eminently, therefore, the pre-requisite for the application of this clause is the violation of a lawful and a reasonable order of a superior as distinguished from the violation of Rules or Orders issued pursuant to those Rules. No such order was pointed out by the learned counsel which could be said to have been violated nor was the third respondent charged for insubordination or disobedience. This provision being penal has to be construed strictly and unless a case is clearly covered by it, it cannot be pressed into service.
13. Coming now to clause (h), the words "any act subversive of disciplina" in it must be contrued ejusdem generis with the preceding words namely, "riotous or disorderly behaviour". These words, in ordinary parlance mean "disturbance of peace and lawless behaviour," respectively. Therefore, the B words "act subversive of discipline" must also be construed in that context. They reflect an act which has some criminality in it. We fail to see how the mere failure to take permission can be regarded as an act or omission of this nature. Again, the third respondent was not charged for an act subversive of discipline and, therefore, it was inappropriate to contend that her case was covered by this clause. Standing Order No. 15 enumerates acts and omissions which either fall under subsection (1)(ii) or under subsection (3) C for which different punishments are prescribed. It will be out of context to regard a violation of clause (1)(ii)(a)as one convered by clauses (a) and (h)l of subsection (3). Accordingly, the High Court was right in concluding,i as it did, that it was a case of a violation of a Rule and not misconduct.
14. The petition has no substance and is dismissed.