1. ' SABIHUDDIN AHMED, J.---This petition arises from an order of the learned Labour Appellate Tribunal, Karachi, dated 7-12-1995, reversing the findings of the 4th Sindh Labour Court, recorded on 9-8-1993 and upholding the order of the Respondent No,1, dismissing the Petitioner from service.
2. ' The admitted facts appear to be that the Petitioner was a worker employed in the Respondent No,1 and was charge-sheeted for writing a highly derogatory letter, containing libelous remarks against several officials of Respondent No,1, and delivered the same to the Manager (Establishment) of the Respondent No, 1 . The letter was dated 23-6-1986' and on that basis, according to the Respondent No,1 charge-sheet was prepared and dispatched to the Petitioner both at his Karachi address as well as his village address in the Punjab (where he was enjoying his leave). Both the learned counsel agree that the charge-sheet was dispatched at the Karachi address of the Petitioner on 14-7-1986 and, when it returned unserved, at the village address of the Petitioner on 17-7-1986.
3. Admittedly, the charge-sheet was received by the Petitioner, at his village address, on 29-7-1986.
4. He filed a reply, whereafter an inquiry was ordered arid, on the basis of findings of the Inquiry Officer, the Petitioner was dismissed from service. After serving the requisite grievance notice, the Petitioner moved the proper Labour Court for redress primarily on two grounds i,e, (i) that the charge-sheet was served after expiry of the limitation stipulated in S.O. 15(4) of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968, hereinafter referred to as "the Ordinance", and (ii) that the allegation in question did not amount to misconduct under the Ordinance.
5. ' Initially the Labour Court (Respondent No,3), vide Order dated 27-2-1989, rejected the Petitioner's application whereupon the Petitioner moved the Respondent No,2 by way of Appeal No,Kar-229 of 1989. It was urged that Respondent No,3 failed to decide the vital issue of the disciplinary proceedings being time-barred under Standing Order 15(4) of the Ordinance. It is conceded on behalf of Respondent No,1 that no evidence appeared to be available to enable Respondent No,2 to decide the aforesaid question and, therefore, by consent, the matter was remanded to Respondent No,3 for recording evidence and pronouncing decision.
6. ' Pursuant to the above, evidence was recorded and Respondent No,3 granted the Petitioner's application holding that Standing Order 15(4) of the Ordinance. The alleged misconduct ought to be brought to the notice of the worker within one month of the knowledge of the employer. It was accordingly held that the proceedings against the Petitioner were barred by limitation and he was directed to be reinstated. Nevertheless, the back-benefits, claimed by him, were denied.
7. ' The Order of the Respondent No,3 was questioned by both the parties before the Respondent No,2.
8. The appeal preferred by the Petitioner was dismissed. However, as regards the appeal of the Respondent No,1, it was held that for the purpose of Standing Order 15(4) of Ordinance, the information to the worker with respect to the alleged misconduct could be dispatched within one month from the date of information of misconduct received by the employer and that the date of actual service on the worker was entirely irrelevant. Moreover, it was further held that the allegations complained of amounted to act subversive of discipline for which the impugned .Dismissal order was entirely justified. The aforesaid Order has been questioned by this Petition.
9. ' It is not disputed that the alleged misconduct came to the knowledge of the Respondent No,1 on 23-6-1986 and, therefore, disciplinary proceedings could be initiated through proceedings commenced within one month thereof. Admittedly, therefore, communication of information upto 23-7-1986, would be valid.
10. ' Mr. Ashraf Hussain Rizvi, learned counsel appearing, for the Petitioner, vehemently argued that since the Petitioner had gone to his village after obtaining leave from Respondent No,1, a notice was required to be served upon him on or before the aforesaid date. He has relied upon the Order of the learned Sindh Labour Appellate Tribunal in Nawab Ali and Co. v. Yaqoob and others (1982 PLC 87). In this case, it was held with reference to section 25-A of the Industrial Relations Ordinance that when the law require a grievance to be brought to the notice of the employer within three months of the date of its occurrence, it would not be enough to send such grievance through post but it should be shown to have been actually brought to his notice. We are afraid we are not persuaded to accept this proposition as a matter of universal principle or draw an analogy therefrom with respect to a notice under Standing Order 15(4) of the Ordinance.
11. ' It may be seen the originally such a provision did not exist but, for the purpose of providing protection to workers against any stale pretext being used as target for mala fide action, the Legislature stipulated that the worker was required to be informed within one month from the date of knowledge of his misconduct on the part of the employer. In this circumstances, the observation of the Respondent No,2 to the effect that the terminal date should be the one when the employer loses the power to recall a notice by dispatching it through mail Moreover, the determination of actual date of service could lead to serious repercussions because the worker would always be able to avoid service of notice for the purpose of disciplinary action by, making himself unavailable at a given address. We, therefore, find no force in Mr. Rizvi's contention.
12. ' The second plea, however, appears to be well founded. Learned counsel argued that the allegations in question do not amount to misconduct as defined in Standing Order 5(4) of the Ordinance, which stipulated 12 kinds of activities which could be treated as misconduct entailing a major penalty including dismissal.
13. ' Mr. Muhammad Humayun, learned counsel appearing for the Respondent No,1 in the first place, relied upon the observation of the learned Respondent No,2 to the effect that these categories were not exhaustive but merely illustrative. With profound respect, we are entirely unable to uphold this view. The provisions of the Statute record 22 categories, after using the following words, "The following acts and omissions shall be treated as misconduct". The language appears to be imperative. Moreover, being a penal provisions, which could result in the loss of livelihood of an employee, it has be strictly construed.
14. ' Alternatively, it was argued by Mr. Muhammad Humayun, that the allegations are covered by Item
(h) of Standing Order 15(4), which reads as follows: "riotous or disorderly behaviour during working hours at the Establishment or any act subversive of discipline."
15. ' In the above context, it may be noted that in P.I.A.C. v. Jr. Labour Court and others (PLD 1978 SC 239), their lordships held that an act if subversive of discipline for the purpose of incurring a penalty for misconduct should not be read in isolation and needs to be construed ejusdem generis with the earlier words "riotous or disorderly behaviour during working hours at the Establishment or any act subversive of discipline".
16. ' Indeed, Mr. Humayun referred to a Division. Bench judgment of this Court in Mrs. Aqila Rafique v.
17. Pakistan Security Printing Corporation Ltd. And others, (1986 PLC (Labour) 1158), wherein their lordships have held that an act subversive of discipline might not necessarily be confined at the premises of the Establishment. At the same time, however, the observations of the Hon'ble Supreme Court in P.I.A.Cs. Case have been followed.
18. ' We, therefore, do not think that the above judgment is of much help to the learned counsel for the Respondent No,1,. Moreover, we have been informed that the Petitioner is already serving Respondent No,1 under an interim arrangement on the basis of an interim order of the Court.
19. ' In the circumstances, we would allow this Petition and direct that the Petitioner be treated as an employee of the Respondent No,1 without interruption in the period of service and would be entitled to the benefits that arise therefrom. However, the Petitioner will not be entitled to any back-benefits in respect of the period during which he has been out of employment.