This is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968, against an order of the Firs West Pakistan Industrial Court, Karachi, dated November 14 1968. The impugned order was passed on an application under section 30(2) of the Industrial Disputes Ordinance, 1959, whereby the learned Industrial Court refused to grant permission to the respondent. The facts briefly put are these.
2. The respondent, Shabbir Hussain, was employed as Tin-smith. He used to make the body of tin- gas-stove in the gas stove section of the appellant Corporation. At the time when he was charge- sheeted he was General Secretary of the Saifee Development Corporation Employees Union (Regd.) which had raised an industrial Dispute against the Management. On 29 h February 1968, the respondent was directed by an Assistant Engineer of the Corporation to attend to the repairs of a gas stove in the house of one Mr. Azizur Rehman of the National Bank of Pakistan. The respondent refused to go to the residence of Mr. Azizur Rehman. He was charge-sheeted for wilful disobedience to the lawful and reasonable order of his superiors. He submitted his reply on the 1st March 1968, which seas not found to be satisfactory. The appellant, without holding any domestic enquiry, applied to the Industrial Court under section 30(2) of the Industrial Disputes Ordinance, 1959, for permission to dismiss the respondent.
3. The respondent resisted the application under section 30(2) of the Repealed Ordinance. He submitted that the application was. a result of victimization and undue labour practice on the part of the Management. He was not guilty of any wilful disobedience to the lawful and reasonable order of his superiors inasmuch as he was only a Tin-smith and did not know how to repair a gas stove which is a work performed by a fitter. Lastly it was submitted that the application under section 30(2) is premature in the absence of any domestic enquiry.
4. The learned Industrial Court recorded the statement of Mr. Abdul Q. Shaikh, Joint Director of the appellant Corporation and that of the respondent and his two witnesses. The Industrial Court in an elaborate order, after considering the provision of the Standing Order, under which the respondentwas charge-sheeted, came to the conclusion that the order though lawful was unreasonable. The Court also held that the order given to the appellant was a cloak for victimization.
5. It was contended by the learned Representative for the appellant that the findings of the learned Chairman of the Industrial Court that the order was given to the respondent was a cloak is based on mere surmises and conjecture and not an evidence brought on record. There is no force in this contention.) It is-true that the allegation of victimization on the part of the Management is a serious one. There must be evidence either, direct or circumstantial to prove it. In the pres there direct as well as circumstantial evidence to support to conclusion of the learned Chairman of the Industrial Court.
6. Shabbir Hussain, the respondent, stated that in November 1968, the Corporation closed the gas stove Section. The Management wanted to retrench the respondent but as a result of the protest of the workers did not retrenched him. This fact is supported by the cross-examination of the respondent. In cross-examination the respondent stated as under:- "I was not retrenched because of the protest of the workers. I do not know if Nabi Ahmed, tile then Union President made a personal request to the Management not to retrench me."
The evidence as to victimization has to be read in the background that the Management wanted to retrench the respondent but had to retain him because of the protest of the workers. This is a strong piece of circumstance in favour of the allegation of the respondent that the Management desired to get rid of him on some pretext or other.
7. Shabbir Hussain stated that he was Joint Secretary of the Union and that he took active part in the affairs of the Union. The Management told him on various occasions to give up the' Union activities but he refused to do so. This statement of the. respondent has not been challenged in the cross-examination. He is supported in his statement by Nabi Ahmed, President of the Union. He stated as under I know Shabbir Hussain. He is Joint Secretary of our-- Union. He is taking keen interest in the Union activities. The Management was annoyed on his Union activities. The company wanted to retrench Shabbir Hussain in 1968 but the Union insisted that there will not be any settlement unless Shabbir Hussain was re-instated." .
He further stated as under "During my tenure as President of the Union the Manage--ment had-many times complained to me that Shabbir Hussain was a bad man. The Management had made this complaint because Shabbir Hussain was active member of the Union."
It is noteworthy that Nabi Ahmed was not cross-examined in respect of the statement reproduced above.
8. There is the evidence of Shabbir Hussain, Nabi Ahmed and Dadullah to support the allegation that Shabbir Hussain had never done repair work of gas stove. He was only a Tin-smith. Shabbir Hussain was not cross-examined as to his statement that lie did slot know repair work. This was a very important fact as to whether Shabbir Hussain could do repair worker or not. Nabi Ahmed and Dadullah have also not been cross-examined as to their statement that Shabbir Hussain never attended to repair of gas stove. Mr. Abdul Qadir did not state that Shabbir Hussain, could do repair of gas stove. He admitted that the workers put the demand that Shabbir Hussain should not be dismissed. IT is, therefore, clear that though Shabbir Hussain could not repair a gas stove yet he was called upon to attend to the repair It is, however, submitted by Mr. Mahmood A. Ghani, for the appellant, that at the time when the respondent was ordered to go and attend to the complaint of Mr. Azizur Rehman, it was not known as to what was wrong with the gas stove. No useful purpose can be served by hair splitting. The fact remains that when a complaint is received that a gas stove is not working it is understood that something has gone wrong with it, which will require repair. It would be useless to send a person who could not do the repair work. In the circumstances that the respondent was retained in the service against the wishes of the Management and that he was not liked by the Management because of the Union activities the conclusion that the order to attend to the complaint of Mr. Azizur Rehman was a cloak for victimization is irrisistible. I hold accordingly.
9. It was next contended by Mr. Mahmood A. Ghani that it is not for any employee to go into the question of the reasonableness of an order given by the employer; he must carry out the order. In the instance case, he submitted that the respondent should have gone to the house of Mr. Azizur Rehman when asked by the Assistant Engineer to attend to the complaint. It is not necessary for the disposal of the present appeal to examine the contention as to whether an employee could exercise his mind as to reasonableness of the order or not before obeying it. The question before me is as to whether be Industrial Court in an application under section 30(2) of the repealed Ordinance had to merely grant the permission on the allegations of the employer that workmen had committed an offence of disobedience of an order. Where the Court has power to grant permission it has also jurisdiction to refuse the same. Section 30 of the repealed Ordinance does not lay down the circumstances or the conditions under which the Court will grant or refuse permission: In the absence of any such direction in section 30(2) of the repealed Ordinance the Court will be guided in exercising its discretion while granting or refusing permission by the general principle of equity and good conscienee. The Industrial Court has, therefore, to see as to whether an offence under Order 13(3)(a) of the Standing' Orders Ordinance, 1960 was made out or not.
Section 11(3)(a) 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."
What the Industrial Court had to see in the first place was whether it was wilful insubordination or disobedience and in the second place whether the order was lawful and reasonable. In the circumstances already mentioned that the respondent had never done any repair work of gas stove his refusal to carry out the order cannot be said to be wilful. The order also cannot be said to be reasonable as the respondent could n6t attend to the complaint in respect of a defective Gas stove. When the respondent was ordered to go and attend the complaint Mr. Azizur Rehman he must have understood, as any reason person will understand, that he was being ordered to go and repair the gas stove which he could not. The submissionMr. Mahmood A. Ghani that when the respondent was orderedto go and attend the complaint nobody knew exactly as to what was wrong with the stove. The suggestion is that there may have been something wrong with the fitting of the stove, which the respondent could locate. There is no force in this submission. I am of the view that if a workman is ordered to go and attend to the complaint of some one in respect of a gas stove, he can reasonably conclude that he was being asked to go and repair the same. In that view of the matter I agree with the conclusion of the learned Chairman of the Industrial Court that the order was not reasonable within the meaning of Order 13(3)(x) of the Standing Orders Ordinance, 1960.
10. I would, for the reasons given above, dismiss the appeal.