Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: AZIZUR RAHMAN VS Respondent: THE BURMAH OIL CO. (PAKISTAN TRADING), LTD.
P L D 1960 Dacca 759
P L D 1960 Dacca 759
Before Sikandar Ali, J
AZIZUR RAHMAN‑Appellant
versus
THE BURMAH OIL Co. (PAKISTAN TRADING), LTD.‑Respondent
Appeal from Appellate Decree No. 57 of 1958, decided .on 7th July 1960.
(a) Words and phrases‑"Or"‑Interpreted in phrase "Habitual negligence or neglect of work"‑"Habitual" qualifies only "negligence" and not "neglect of work" in context of phrase.
(b) Civil Procedure Code (V of 1908), O. XLI, r. 27 (1) (b) Documents produced at time of evidence, and parties and witnesses questioned about them‑Documents, however, not exhibited by "oversight"‑Admission by lower Appellate Court, held, proper- [Kesarmal and another v. N. K. V. Valliappa Chettiar P L D 1954 P C 101 and Manmohan Das alias Bachhaji and others v. Mst. Ramdei and others 35 C W N 925 considered].
(c) Specific Relief Act (I of 1877), Ss. 21 (b) & 42 proviso- Contract of personal service with private company‑Suit for re‑instatement after alleged wrongful and mala fide dismissal does not lie.
A private firm must as such have a free choice in the matter of appointment and discharge of its employees. The consensus of established authorities appears to be that a Court cannot foist upon an unwilling private firm an employee or employees, whom it has thought fit to get rid of, and to that end, rightly or wrongly discharged ; or whom, for one reason or the other, the firm is unwilling to accept. Should an employee however feel aggrieved and consider that he has been wrongfully and illegally discharged, all that he can seek from a Court in consonance with the above mentioned principle is damages and not his reinstatement, which the Court is not competent at all to order.
Although an employee may establish that he has been wrongly dismissed, still he is not entitled to the remedy of an injunction or of specific performance, in that, contract involving his personal service cannot be specifically enforced in view of section 21 (b) of the Specific Relief Act. Such suit is hit by section 21 (b) as well as the proviso to section 42 of the Specific Relief Act.
Muhammad Mustafa Ali Khan v. District Board, Bareilly and another A I R 1934 All. 101 ref. Ahmad Sobhan for Appellant. S. M. Hussain for Respondent.
JUDGMENT
1n this case the plaintiff‑appellant sued the defendant /respondent Company i.e., Burmah Oil Company (Pakistan) Trading Co. Ltd., and one of its officers viz., Mr. Robertson, officer‑in‑charge of the B. O. C. Installation at Gupta Khali in the 2nd Court of the Munsif at Chittagong, Sadar, on 28‑6‑54 for a declaration that his discharge from the service of the said Company was wrongful, mala fide and illegal as well as for recovery of a sum of Rs. 380 representing his salary for the months of May and June 1954, together with a sum of Rs. 60 being the compensation for the physical injuries, mental agony and ignominy caused to him by the defendant No. 2. The case made by him briefly was this :‑He had been in the employ of the defendant company for the last 23 years as a permanent hand and the last post held by him was that of an electric engine driver. On 21‑4‑54 he was on duty from midnight to 8 a.m. and while on such duty and watching the engine from his seat, the defendant No. 2 entered the room in a drunken state and kicked him with his shoe on the right side of his body, as a result of which he fell down and sustained severe injuries on different parts of his person. On his protest the said defendant hurled abusive epithets such as "Ulluk" "Bloody Swine", etc. upon him. In the morning he narrated this story of assault to some of his colleagues after having had his injuries attended to by a doctor and also reported the incident to the Secretary of their Union as well as to one Z. H. Chowdhury, M. L. A. Sometime during that day, he also made a complaint to the Labour Officer of the Company, I.e. Mr. Bell, who assured him that he would see that the matter was amicably settled to his (plaintiff's) satisfaction. In fact, he appears to have been done nothing and on the other hand, colluded with the defendant No. 2 who made over to him a charge sheet accusing him of having been asleep on duty. That was followed by a second communication made over to him by the said defendant on 24‑4‑54, discharging him from the service, of the Company. The plaintiff alleged that the defendant No. 2 was not competent to discharge him and further that the so‑called discharge could not also stand in that no enquiry had been held, nor had he been given any opportunity to show cause against the charge levelled against him. It was also alleged that the plaintiff preferred an appeal against this illegal and arbitrary discharge before the Manager but that had been kept pending without any order. According to him, therefore, his discharge was ultra vires and void and he was continuing in service. It was on these allegations that the suit was instituted praying for the reliefs already detailed at the very outset.
The suit was contested by the defendant No. 1 alone. It was contended that the defendant No. 2 Mr. Robertson did not assault or abuse the plaintiff and was a strict teetotaller not addicted to any sort of alchoholic liquor. It was further contended that under the Rules of the Company the said defendant was fully competent to discharge or dismiss the plaintiff and that his dis missal was ordered according to the procedure prescribed under the said Rules. According to the defence, the defendant No. 2 in course of his periodical rounds found the plaintiff sound asleep in utter neglect of his duty at 4‑30 a.m. On 21‑1‑54 i.e., on the night in question. He actually called in some other members of the staff on duty near about and pointed out that the plaintiff instead of attending to his duty was sleeping. Accordingly he drew up a charge on that very day and made over to the plaintiff one copy when the plaintiff confessed to the truth of the accusation made against him in the charge sheet and begged to be excused. Mr. Robertson however, dismissed him from the service of the Company.' The plaintiff preferred an appeal before the Manager who found no ground to interfere with the order of dismissal and accordingly dismissed the appeal. His decision was duly communicated to the plaintiff. Along with the above pleas of facts, the defendant Company also pleaded the bar of proviso to section 42 of the Specific Relief Act and further resisted the plaintiff's claim for salary as well as compensation as untenable.
It was on the above pleadings that the contending parties went into trial and adduced evidence in support of the various issues raised. Ultimately the learned Munsif, on a consideration of the materials thus brought on the record, found that the plaintiff was wrapped in heavy slumber while on duty as conten ded by the defendant No. 1, that the defendant No. 2 was not in a drunken condition, that the allegations of kick, abuse and injuries were unfounded, that the plaintiff invented the story of the assault to create evidence and enlist sympathy to meet the anticipated charge against him, that the plaintiff did not approach the Labour Welfare Officer Mr. Bell (D. W. 4) over the alleged incident, that the defendant No. 2 was the Head of the Depart ment concerned. and as such competent under rule 15 of the Company's Standing Orders to dismiss the plaintiff, that the omission to hold a formal enquiry was fully justified and that there was no scope for any formal enquiry in the circumstances of the proved facts inasmuch as the defendant being the Head of the Department had himself personally been a witness to the dere liction of duty and there was nothing further to enquire into as the offence was fully proved, that the charge‑sheet and the letter of dismissal were duly handed over to the plaintiff and he had had full knowledge of their contents and that there was no necessity or occasion for affording any opportunity to show cause against the charge‑sheet as the offence was admitted and forgive ness asked for. Having found all these against the plaintiff and in favour of the defence, the learned Munsif, however, decreed the suit in full in favour of the former as according to him a solitary instance of neglect of work like the one put forward and proved against the plaintiff in this case as distinct from "habitual" neglect of work is not sufficient to attract the operation of rule 15 of the Company's Standing Orders mentioned above. In his own words the exact view taken by the learned Munsif was as follows :‑--
"Article 15 (1) contemplates habitual neglect of work as well. That being so, the simple act or omission of the plaintiff proved does not come within Article 15 (1) and consequently, it was not a misconduct within that Article and, therefore, defendant 2 was not competent to proceed under that Article."
As to the defence objection regarding the maintainability of the suit i.e. bar of the proviso to sections 42 and 21 (b) of the Specific Relief Act, the learned Munsif, negatived the same on the follow ing finding :‑----
"Therefore, the order of dismissal is not merely on irregular or unjustifiable exercise of an authority vested in defendant 2 but in exercise of a power of which he was not possessed at all . . . . . In the peculiar circumstances of the case plaintiff has asked for proper reliefs and he is entitled to all of them."
Against the, decree thus passed by the learned Munsif, the defendant Company preferred an appeal, which was ultimately heard by Mr. M. A. Barkat; Subordinate Judge, 2nd Court, Chittagong. Before him the only points canvassed appear to have been whether the Court below was right in its interpretation of rule 15 (1) of the defendant‑Company's Standing Orders and whether the suit was maintainable in view of section 42 of the Specific Relief Act. Another point was also mooted. That related to the plaintiff's service cards which had not been exhibited during the trial before the learned Munsif and were sought to be admitted in evidence during the hearing of the appeal before the learned Subordinate Judge. It appears that the other findings arrived at by the learned Munsif were not at all challenged and were fully endorsed by the learned Subordinate Judge, as being "backed by excellent evidence, cogent reasons and sound law." As to the service cards, the learned Subordinate Judge marked these as exhibits and thus admitted the same into evidence. As regards the other two points in controversy between the parties, as already mentioned above, he held that the word "habitual" preceding the word "negligence" occurring in rule 15 of the Standing Orders qualifies that word only and not the expression "neglect of work" following thereafter so that an employee of the Company could be dismissed or discharged by the appropriate functionary even for a single act of neglect, as is the case in the present instance, and that the suit is hit by section 42 of the Specific Relief Act. The learned Subordinate Judge also proceeded to observe that even if "neglect of work" mentioned in rule 15 (1) of the Standing Orders were to be read subject to the qualification "habitual " so as, to bring only a chronic sinner as distinct from a first offender within its mischief, dis missal of the plaintiff would still be justified in. view of his service cards which show "black record of his past service". On `the above findings, the learned Subordinate Judge allowed the appeal and reversed the judgment and. decree of the trial Court and dismissed the suit on contest with costs, which has led to the present second appeal before this Court.
Mr. Ahmed Subhan, Advocate, appearing on behalf of the ap pellant has attacked the judgment and decree of the learned' lower Appellate Court mainly on three grounds. In the first place, he has urged that the learned Subordinate Judge was wrong in holding that the word "habitual" in rule 15 of the Standing Orders qualifies the word "negligence" only and not the expression "neglect of work" occurring thereafter. The second contention urged by him is that the learned Subordinate Judge acted impro perly in admitting the service cards in evidence, and that this has seriously prejudiced the plaintiff appellant. He also challenged the finding of the learned Subordinate Judge that the suit is hit by section 42 of the Specific Relief Act, which he characterised as erroneous. It was also argued by him that the dismissal of his client from the service of the company in the absence of any formal enquiry and without giving him opportunity to show cause against the charge levelled against him is contrary to the provision, of the Company's Standing Orders and as, such cannot stand and that the finding to the contrary; though arrived at by both the Courts below, is erroneous.
For regulating the terms and conditions of the services of its employees including provisions for disciplinary action against them etc. etc, . . . . . the defendant‑Company, it appears has a set of codified rules styled:
" Standing Orders of the Burmah Oil Company (P. T.) Limited under the Industrial Employment (Standing Orders) Act. 1946, and the Bengal Industrial Employment (Standing Orders) Rules, 1946."
In this case action against the plaintiff‑ appellant is said to have been taken under Clause (i) of sub‑rule 1 of Rule 15 which provides:
"15. Disciplinary Action for misconduct.
Dismissal or Summary discharges.
The head of Department may dismiss or summarily discharge a man without notice or compensation 'in lieu if he is found guilty of misconduct.
The following acts and omissions shall be treated as miscon duct.
(i) habitual negligence or neglect of work."
As has already been stated above, it has been found concurrently by both the Courts below and it is no longer in controversy that the defendant No. 2 Mr. Robertson was the Officer‑in‑charge of the defendant company's Installation at Gupta Khali and as such the Head of the Department within the meaning of the above rule so far as the personnel attached to the aforesaid Installation were concerned. He was their appointing authority as well. He was, therefore, fully competent to dismiss the plaintiff and there is no dispute regarding this now. The only point of divergence between the parties in this behalf is whether the initial word "habitual" in rule 15, Clause (i) quoted above governs the word "negligence" alone or it qualifies "negligence" and "neglect of work" both. According to the learned Munsif the term "or" wedged in between the expressions " habitual negligence " and "neglect of work" is "conjunctive `and not' disjunctive 'in as much as the said two expressions have been classed together in the same clause instead of being inserted as distinct and independent clauses which would have been done if they were intended to be disjunctive. The learned Subordinate Judge on the other hand, takes it to mean a conjunction introducing an alternative and applying to it this meaning, concludes that the conjunction 'or' qualifies only 'negligence' and not ` neglect of work' so that "even for an isolated act of neglect of work on the part of the plaintiff his discharge or dismissal would be justified."
Negligence refers to a certain state of mind‑a sort of a nega tive attitude‑and signifies slackness or inattention while neglect of work ' refers to physical action and in simple language mean inaction. A certain state of mind on the part of a worker, howsoever undesirable that may be, can hardly be a source of any immediate or grave danger to his employer and the latter may, without running any serious risk allow a particular worker sufficient, time or opportunity to mend himself but physical inaction with respect to a particular duty assigned to a worker may, according to the nature of the duty, entail serious conse quence or even cause an immediate havoc or disaster. No employer can conceivably put up with such inaction and think of giving the delinquent time or opportunity to reform himself. Thus in one case there appears to be scope for leniency on a compassionate view of human frailties and foibles, while in the other, the risk involved appears to be too grave serious to allow a care free or lenient attitude of "wait and see". To my mind, these exactly are the contingencies that the two expressions in question occurring in rule 15 (1) i.e. "habitual negligence" or "neglect of work" are meant to provide for and in this view of the matter, I am strongly inclined to think that the qualification "habitual" no matter whether the term "or" wedged between the two, is conjunctive and not disjunctive, as found by the learned Munsif or a conjunction introducing an alternative, as the learned Subordinate Judge is inclined to read it on the authority of the Oxford Dictionary, governs the term "negligence" alone and not the expression "neglect of work" also. Were it otherwise i.e. if the said qualification were taken to govern "negligence" and "neglect of work" both, the company would, in fact, be landed in an unworkable or impossible position, in that it shall find itself unable to get rid of a worker, even though a particular act of neglect of duty on his part might have caused a heavy loss and involved danger or damage to human life as well as valuable properties. In this behalf I am at one with the learned Subordinate Judge and fully endorse the views expressed by him in ‑the following observations:
"In that case the plaintiff could have well argued that he cannot be discharged without the proof of `habitual negligence" and "habitual neglect of work." This matter must, be judged from another angle. The clause "neglect of work" has been left unqualified simply to meet those cases of single grave "neglect of work" which cause damage to life and property.
"Here, the plaintiff has been conclusively found asleep while in charge of an engine which, if unattended, might have burst out and exploded the whole Guptakhali Installation, and that would have taken valuable lives and property."
It may also be noted that clause (i) appears to be the only provision for dealing with delinquencies of the nature implied by negligence or neglect of work and hence if the qualification "habitual" were taken to govern both the expressions and not `negligence' alone, the position would come to this that the Standing Orders make no provision for dismissal or summary discharge of the company's workers for a single act of neglect of duty, even though that may be fraught with most serious consequences or cause an immediate danger or disaster in relation to the interest and property of the Company. That appears to be absurd. Incidentally reference may for the purpose of analogy be made to clause (e) specifying a particular act that shall be treated as misconduct. It runs as follows:
"habitual absence without leave or absence without leave for more than 10 days".
As far as I can see, there is no scope for any argument that the initial word "habitual" occurring in the above clause qualifies its second part i.e. the clause "absence without leave for more than 10 days" as well. Obviously the said word governs the first part i.e. the Clause " absence without leave" only so that a single instance of "absence without leave for more than ten days" would fully justify dismissal or summary discharge which is perfectly sensible. Thus on a careful examination of the provision in question in all its bearings and aspects, I am led to accept the view of the learned Subordinate Judge and hold that the qualification `habitual' occurring inn Clause(i) i) governs the term `negligence' alone and not the expression `neglect of work' also.
Proceeding the learned Subordinate Judge has further opined that even if both the expressions referred to above were read as subject to the aforesaid qualification i.e. `habitual' the order of dismissal in the present instance, i.e. the dismissal of the plaintiff, would still be justified in view of the fact shown by his service cards Exh. E series, that his past service, far from being unblemished as claimed, is dotted with several black marks, as contended by the defence. The last of such remarks is a warning administered to him officially for disobedience of orders on 4‑8‑52, which, it may be noted, was within a period of two years of the institution of the present suit, for gross dereliction of duty, wherefore he has now been discharged.
This brings us to the second contention urged by the learned Advocate for the plaintiff appellant that the learned Subordinate Judge acted illegally and improperly in admitting the plaintiff's service cards in evidence during the hearing of the appeal. It has been argued that since the defendant‑Company did not file these documents or have them admitted into evidence on proof of the same in the trial Court, the learned Subordinate Judge should not have allowed the defendant to make up this omission at the appellate stage as the plaintiff was thus deprived of his due opportunity to test the value and authenticity of those docu ments by cross‑examining the P. Ws. in the light thereof. As observed by the learned Subordinate Judge in his judgment, it is not at all correct that the service cards were not produced during the trial in the Court below. It appears that the Labour Officer of the defendant‑Company Mr. Bell deposed to the past service records of the plaintiff with reference to the service cards and was also cross‑examined by the other side in that behalf. In his cross‑examination he stated "I maintain the service records of all employees there (at Guptakhali). The service records of plaintiff filed in Court were in my custody." Even the plaintiff himself (P. W. 5) appears to have been cross‑examined with reference to the service cards in question, when he stated "These four are my service cards." It is thus clear that the service cards had actually been filed in the trial Court and the plaintiff's party also were fully aware of the same and actually used the said document in the cross‑examination of the defendant‑Com pany's officer concerned. It does not, therefore, seem to lie in the mouth of the plaintiff‑appellant to say that the said documents had not been filed in the trial Court or to complain that he has been prejudiced by reason of their being admitted into evidence at the appellate stage. In support of his contention the learned Advocate for the appellant cited the cases of Kesarmal and another v. N. K. V. Valiappa Chettiar (P L D 1954 P C 101) and Manmohan Das alias Bachhaji and others v. Mst. Ramdei and others (35 C W N 925). The first mentioned case appears to be clearly distinguishable, inasmuch as the documents concerned could be produced at an appropriate stage with due diligence on the part of the party seeking to produce the same and their non‑production was absolutely due to laches on their part, while in the present instance the documents bad not only, been filed in the trial Court but appear to have been actually used .by the parties during the examination of the witnesses on both the sides. In the second case, wherein the application of clause (i) (b) of the rule 27, Order XLI of the Code of Civil Procedure 'has been considered, it has been' held:
"'The provisions of section 107 of the Code of Civil Procedure, as elucidated by Order XLI, Rule 27, are not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak part of his case and fill up omissions in the Court of Appeal by adducing fresh evidence there.
In a case coming under clause (i) (b) of rule 27, it is only when the Court itself requires additional evidence; that 'is to say, finds it needful in order to pronounce judgment or for any other substantial cause, that such evidence can be admitted. The legitimate occasion for exercise of this discretion is when on examination of the evidence as it stands some inherent lacuna or defect becomes apparent. 'The defect may be pointed out by a party or a party may move the Court to supply the defect but the requirement must be of the Court itself.-------- The discretion must be very sparingly exercised and one requirement at least of any new evidence must be that it should have a direct and important bearing on a main issue in the case."
It is important to note that in the present case the learned subordinate Judge admitted the additional evidence in question mainly for two reasons, In the first place he appears to have been inclined to the view that it was in fact an oversight on the part of the learned Munsif that these were not exhibited as evi dence. That he has observed that "the learned Munsif recorded the deposition on these service cards but he did not make them as exhibits for reasons best known to him." Secondly he, was of opinion that "that these service cards are very essential for the purpose of deciding the present dispute."' In the circumstances the learned Subordinate Judge cannot…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.