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Petitioner: MUHAMMAD IZHARUL AHSAN QURESHI VS Respondent: PAKISTAN INTERNATIONAL AIRLINES CORPORATION
Court Name: Labour Appellate Tribunal Judge(s): Z. A. Channa Title:MUHAMMAD IZHARUL AHSAN QURESHI vs PAKISTAN INTERNATIONAL AIRLINES
CORPORATION Case No.: Civil Appeal No. K-52 of 1964 Appeal No. KAR-610 of 1981 Date of Judgment:1982-08-08 Reported As: 1983 PLC 620 Result: Appeal dismissed Judgment ORDER This appeal is directed against a decision of the learned IVth Labour Court , given on 26-9-1981, dismissing the grievance petition of the appellant herein, challenging his dismissal from service by the Pakistan International Airlines Corporation, the respondents herein. 2. The facts which form the backgrounds of this appeal, shortly stated, are that the appellant joined the P.1.A. As a peon in the year 1967, but rapidly improved his position and rose to the post of Technical Libra--rian. However, on 16-4-1978, he was served with a show-cause notice. a copy of which is not on the record of the case. This was followed by a charge-sheet, dated 23-4-1978, wherein the following acts of misconduct were alleged against the appellant :- (a) That the photo-copy of the Provisional Matriculation and Mark Sheet submitted by you to the Corporation have been forged. (b) That the copies of the certificate submitted by you certifying you to have qualified Librarianship examination have also been found forged. (c) That on your application dated 10-4-1969, you have fraudulently affixed the signature of Mr. S. A. Rasool, Chief Librarian, Technical Library, which as a matter of fact he never signed. (d) That you submitted false information with regard to your educa--tional certificates, experience and date of birth to the corporation. (e) That you have also falsely stated your date of birth as 31-12-1941 in your employment application whereas the same was 31-12-1945."
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3. It may be pointed out here that the appellant was served with the show-cause notice and the above charge-sheet in consequence of certain enquiries made by the Federal Investigation Agency. The appellant submitted a reply to the charge-sheet, which incidentally also does not appear to be on the record of this case, and as the reply was not considered satisfactory by the management, the appellant was informed, vide the manag--ement's letter, dated 27-4-1978, that Mr. Ghazanfer Mashkoor, Personnel Officer, had been appointed as the enquiry officer to bold the enquiry against him and that the enquiry would commence on 4-5-1978, at 10-00 hours, in his office. The appellant challenged the action of the management in holding a domestic enquiry against him in a Civil Suit filed in the Court of the learned XIV Civil Judge, IInd Class, Karachi. The learned Civil Judge originally passed an interim order staying the holding of the enquiry against the appellant, but the Stay Order was subsequently vacated and the plaint returned to the appellant for- want of jurisdiction, vide the Civil Court's Order, dated 20-5-1978. The appellant was thereupon served will: another notice by the management to appear before the enquiry officer on 30-5-1978 at 10-00 a.m. The appellant appeared before the enquiry officer on the aforesaid date but sought an adjournment on the ground that he had filed an appeal against the order of the Civil Judge. The enquiry officer declined to adjourn the enquiry to another date as no Stay Order had been issued by the Appellate Court, but he postponed the enquiry to 3-00 p.m. On the same date, as the appellant failed to appear before the enquiry officer at the newly-appointed time, the enquiry officer con--ducted the enquiry ex parte and after recording the statements of witnesses Mushtaq Ahmad (Personnel Officer); Engineering Department and S. I. R. Hashmi (Chief Technical Librarian), submitted his report with the finding that the appellant was guilty of charges made against him. On the following day, I e. 31-5-1978, the learned 1st Additional Sessions Judge, Karachi, passed an order on the appeal preferred by the appellant against the return of his plaint by the learned Civil Judge, maintaining status quo, the appeal was ultimately allowed by the Additional Sessions Judge and the order passed by the learned Civil Judge was set aside, by his order, dated 10-8-1978. The respondents challenged this order of the learned Additional Sessions Judge through a revision petition made to the High Court and learned Single Judge of the High Court, by his judgment, dated 2-12-1978, accepted the revision petition and set aside-the order passed by the learned Additional Sessions Judge. The appellant took up the matter to the Supreme Court, but his petition for Special Leave to Appeal against the judgment of the High Court was dismissed by the Supreme Court by its order dated 12-8-1979. In the meanwhile, as second show-cause notice, dated 14-12-1978 was served upon the appellant. Earlier a copy of the findings of the Enquiry Officer had been furnished to the appellant with the management's letter, dated 7-8-1978. The appellant submitted his explana--tion to the second show-cause notice and was also given a personal hearing before the Director, Engineering and Maintenance Department, on 18-12-1978, but as his explanation was not found satisfactory, he was dismissed from service, vide order, dated 20-12- 1978. 4. The appellant challenged the order of his dismissal before the learned IVth Labour Court , through a grievance petition made under section 25-A, I.R.O., which has been dismissed by the impugned decision. 5. I have heard Mr. S. M. A. . Mahmood, who appeared for the appellant, and Mr. S. A. Sarwana, the learned counsel for the respondents. The various contentions raised by the 2 learned counsel in respect of which they addressed arguments before this Tribunal, are (i) What is the effect of the Notification of the Sind Government, dated 18-2-1978, withdrawing the exemption from the application of the Standing Order to the P.I.A. ? . (ii) Whether the Notification came into force on the date it was signed, i.e. 18-2-1978, or on 4-5-1978 when it was published ?
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(i.e) Whether the said Notification has retrospective effect ? (iv) Was the appellant given reasonable opportunity of defending himself in the domestic enquiry ? (v) Have the allegations against the appellant contained in the charge-sheet been established ? (vi) Whether the said allegations constitute misconduct for the purposes of clause (3) of Standing Order 15 ? 6. I will proceed to deal with each of the above contentions seriatum. 7. As the first 3 contentions raised by Mr. Mahmood are inter--connected I will deal with them jointly. 8. It was contended by Mr. S. M. A. . Mahmood that the Notification, dated 18-2-1978, withdrawing the exemption granted to the P.I.A. From the operation of the provisions of the West Pakistan Industrial and Commer--cial Employment (Standing Orders) Ordinance, 1968, to which I will refer for the sake of bravity, as the said Ordinance, had the effect of with--drawing the exemption from the Operation of the Ordinance with immediate effect, as the withdrawal notification itself provides that the exemption is being withdrawn with immediate effect, notwithstanding the fact that the notification may have been. Published in the official Gazette on a subsequent date. It as further contended by Mr. Mahmood that as the withdrawal notification related to a matter of procedure and as it is settled law that any changing the procedure has prospective effect the effect of the with--drawal notification was that the P.I.A. Was required to strictly comply with the provisions of the Standing Orders. While taking action against the appellants particularly with the requirement of clause (4) of Standing Order 15 that a. Misconduct on the basis of which it is proposed to dismiss a workman must be brought to his notice within one month of the date of the commission of the misconduct or at least within a month of the date of the misconduct coming to the notice of the employer. The learned Labour Court has exhaustedly dealt with, the first' limb of argument of Mr. Mahmood and has rightly come to the conclusion that as the with--drawal notification, though it is dated 18-2-1978, was actually published in A the Sind Government Gazette, dated 4-5-1978, the withdrawal is deemed to have taken effect from the date of the publication of the notification, The precise question which has been raised in this appeal was raised before their Lordships of the Supreme Court in the case reported as Muhammad Suleman v. Abdul Gham (PLD 1978 SC 180). In that case a notification had been issued under section 8 (2) of the Punjab Pre-emption Act I of 1913, by reasons of which the right of pre-emption was not to exist in respect of land situated in an area commonly known as the colony area. The said notification, however, was- rescinded, vide notification, dated 19-2-1973, published in the Provincial Gazette of March 2, 1973. It was contended that as the Notification withdrawing the prohibition of the pre-emption was published in the Gazette of 2-3-1973, the consequence would be that prior thereto, on 19-2-1973, when the sale. In respect of the land in question took place, the prohibition still existed and as such the suit-of the plaintiffs could not proceed. Upholding the view taken by the High Court that the withdrawal of exemption took place from 2-3-1973, when the Notification was published in the Gazette and that prior thereto the prohibition in respect of pre-emption was in force, the Supreme Court observed as follows :- "Section 8 (2) refers to curtailing the right of pre-emption and according to the principle laid down in section 20 of the West Pakistan General Clauses Act, if the curtailment was to be a Notification to be published in the official Gazette, the withdrawal of the aforesaid curtailment was also to be done in the same manner namely be a declaration of withdrawal which, in its own turn, should also be published in the form of a Notification in the official Gazette, and will obviously be effective from the date of the publication of the Gazette and not any prior date. This is clear from the above reproduced language of section 8 (2) though we may mention, that even otherwise it is well- settled as laid down in Sh. Fazal Ahmed v. Raja Ziaullah Khan and another and Sh: Rehmatullah v. The Deputy Settlement Commissioner. Centre `A' Karachi and others that such Notification which
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curtail or extended rights of the citizen cannot be retrospective and this is all the more so in such cases when a state of things is to take place by publication of a Notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of the Notification itself if it is prior, to the actual date of the publication in the Gazette, because then it will tantamount to giving that Notification a retrospective effect not from its publication but from a date prior thereto which as explained above is not permissible according to the relevant law involved in this case." 8. Since the withdrawal Notification in the instant case, was effective from 4-5-1978, when it was published in the official Gazette, obviously the P.I.A. Was not required to comply with the provisions of the Standing Orders particularly Standing Order 15, prior to .4-5-1978. It is an admitted position that the charge-sheet was served on the appellant on .23-4-1978, i.e. Prior to 4-5-1978. It was, however, contended by Mr. Mahmood that the withdrawal notification had the effect of reverting the parties to the position before the exemption was granted, except for transac--tions past and closed, and therefore, if the misconduct was not or could not be brought to the notice of the erring workman within the statutory period, he could not be dismissed from service. The learned counsel sought to base his arguments on the ground that the notification in question dealt with procedural law and such law has invariably been given retrospective effect on the principle that no person has vested interest in procedure. Apart from the fact that the learned counsel was unable to cite a single authority in support of his contention, the original notification exemption, the P.I.A. From the operation of the provisions of the Standing Order and the subsequent notification withdrawing the said exemption, were not merely in regard to matters of procedure but in regard to substantive rights of workmen. In the case reported as Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407) the supreme Court examined the question whether it was open to the Government to withdraw an order issued with the approval of the President fixing the pay of a Government servant, Muhammad Himayatullah. It was observed that though there can be no dispute with the rule that apart from the provisions of section 21 of the. General Clauses Act, locus poenitentiae, i.e. The power of receding till a decisive step is taken, is available to Government or relevant authorities, but this is subject. To the exception that where an order has taken legal effect and in pursuance thereof certain rights have been created in favour of an individual, such order cannot be withdrawn or rescinded to the detriment of those rights, the withdrawal notification, which was published in the official Gazette on 4-5-1978, thus could not affect the validity of the charge-sheet which was issued earlier on 23-4-1978. It may further be pointed out that the rule that amendments in procedural law have retrospective effect is not a rigid one and is not without an important exception. Even a procedural law may deal with or confer a vested right. The Supreme Court in the case reported as State v. Muhammad Jameel (PLD 1965 SC 681) examined to contention whether in spite of the amendment made in the Code of Criminal Proce--dure by West Pakistan Act XVIII of 1964, debarring an accused person from re-calling a prosecution witness who has already been examined, was still entitled, in certain circumstances, to recall and cross-examine such a witness. It was observed by the Supreme Court that a statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words if it is more than a mere matter a procedure, i.e. If it touches a rights in existence at the passing of the new Act, the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act. In the light of the above principle, their Lord-- ships of the Supreme Court held that the right to re-call witnesses already examined before the charge, really matured into a vested right only when the charge is framed. If, therefore, a charge was framed against an accused person before the new law came into effect, the accused would have the right to further cross-examine the witnesses already examined, despite the amendment in the law. As the charge-sheet in the instant case was admittedly served upon the appellant
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before the withdrawal notifi--cation was published and became effective, the charges which are founded upon the terms of employment for the P.I.A. Personal as embodied in the P.I.A. Code, would appear to be quite valid, and cannot be impugned on the ground that they do not comply with - the provisions of clause (4) of Standing Order 15, which provisions were admittedly not applicable to the P.I.A. When the charge-sheet was framed and .Served upon the appellant. 9. Before examining the next contention of Mr. Mahmood, I would like to deal with the contention of Mr. S. A. Sarwana that the P.I.A. In fact is exempted from the provisions of the said Ordinance by reason of the first proviso to subsection (4) of section 1 of the said Ordinance. The two essential preconditions for the application of the said proviso are, firstly, that the establishment must be carried on by or under the authority of the Federal or any Provincial Government, and secondly, that the establishment must have statutory rules of service, conduct or discipline applicable to the workmen employed therein. Even if it were to be assumed that P.I.A. Is carried on by or under the authority of the Federal Government, though there is no evidence an record in support of this assumption, 'the second requirement that it should have statutory rules of service, conduct or discipline applicable to its workmen is wanting. This precise issue was considered in the 2 cases reported as .A. George v. Pakistan International Air Lines Corporation (PLD 1971 Lah.748), P.I.A.C. v. Allah Ditta Bugti (P L D1979 Kar.542). In the Lahore case, it was observed that the .Service Code framed by the P.I.A. Does not have the force of statutory rules made by Central Government under section 29 of the P.I.A.C. Act, 1959, nor even the force of Regulations made by Board of the Directors of the Corporation under section 30 of the Act. A similar view was taken by the Karachi High Court in Allah Ditta Bughti's case though in the latter case there is an observation that despite the fact that the Service Code does not have the force of statutory rules still it is binding, having been issued by the governing body of the corporation. I am in respectful agreement with these observations but would like to add that since the provisions of the Service Code cannot be construed as statutory rules, the P.I.A. Would not qualify for exemption from the operation of the Standing Orders under the first proviso to subsection (4) of section 1 of D the said Ordinance, with the result that, wherever the provisions of the Service Code are in conflict with those of the Standing Orders, the letter provisions would prevail. 10. It was alternatively argued by Mr. Sai wana that even on the assumption that the appellant had to be charge-sheeted within the period prescribed in clause (4) of Standing Order 15, this requirement of law has been fully complied with it the instant case. He conceded that the acts of misconduct urged against the appellant were committed by him at different times and much prior to 23-4-1978, when the appellant was charge-sheeted. He, however, submitted that the appellant was charged within one month of the P.I.A. Coming to know of the commission of the acts of misconduct. By the appellant. The learned counsel submitted that the first indication which the P.I.A. Had that the appellant had probably committed some acts of misconduct, forgery or fraud, was when he received the P.I.A.'s letter dated 15-3-1977, requiring the P.I.A. To take action against the appellant for issuing false educational certificates and domiciles. This .Letter, however, does not give the details of the acts of misconduct committed by the appellant and hence it cannot be said that through this letter the P.I.A. Had notice of the acts of misconduct on the basis of which the appellant had been dismissed from service. However, the P.I.A. On the request of the F.I.A. Furnished to the F.I.A. Copies of the appel--lant's educational certificates and testimonials, vide their letter, dated 15-4-1977. It appears that it was only after the F.I.A. Had made certain investigations and recorded the statements of certain employees of the P.I.A. On 11-4-1978, that the P.I.A. Came to know of the true state of affairs and the acts of misconduct committed by the appellant, as appears, from their minutes, dated 11-4-1978 and 13-4-1978. The charge-sheet against the appellant was issued soon thereafter, on 16-4-1978, I am, inclined to agree with the contention of
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Mr. Sarwana that the charge-sheet was given to the appellant within one month of the P.I.A. Coming to know of the acts of misconduct committed by the appellant. 11. It was next contended by Mr. Mahmood that the appellant was not given a reasonable opportunity of defending himself at the domestic enquiry. This contention is founded on 2 circumstances, first, that though the appellant, on 30-5-1978, had requested the enquiry officer to adjourn the proceedings, which request was legitimate in view of the fact that the appellant had challenged the enquiry proceedings in an appeal before a learned Additional District Judge, the enquiry officer refused to adjourn the proceedings and merely postponed the same to a latter hour on the same day, and the second, that the enquiry proceedings were held in the absence of the appellant. Both these grounds, in my view, have no force. As already pointed out, the appellant was served with a detailed charge---sheet, dated 2 3-4-1978, which spells out the acts of misconduct against him. To this charge sheet the appellant. Admittedly reply but the same does not appear to be on record, as the explanation of the appellant to the charge-sheet was not considered satisfactory by the management, he was informed, vide letter, dated 27-4-1978, that the enquiry against him would be held by Mr. Ghazanfer Mashkoor, Personnel Officer, on 4-5-1978. The appellant instead of participating in the domestic enquiry on the above date, challenged the holding of the enquiry through a Civil Suit and obtained an interim Stay Order. As the Stay Order was vacated by the Civil Court and in fact the plaint filed by the appellant was returned to him by the Civil Court for want of jurisdiction, the management served another notice upon the appellant requiring him to appear before the enquiry officer on 30-5-1978 at 10-00 a.m., when the enquiry would commence. The appellant admittedly appeared' before the enquiry officer on the aforesaid date and time but requested for an adjournment on the ground that he had filed an appeal to the District Court against the rejec--tion of his suit and the return of the plaint by the Civil Court. The enquiry officer rightly rejected this request as no Stay Order had been issued by the District Court. He nevertheless postponed the enquiry proceedings to 3.00 p.m., on the same day, in order to enable the appellant to prepare for the enquiry. The appellant instead of taking advantage of this postponement, failed to appear before the enquiry officer at 3-00 p.m., with the result that the enquiry officer had to hold the enquiry proceed--ings ex parte. The enquiry proceedings cannot be deemed to be invalid merely because the appellant chose to boycott the same or refused to appear before the enquiry officer despite being given adequate oppor--tunity by the enquiry officer to participate in the enquiry proceedings. 12. It was also sought to be argued by Mr. Mahmood that the enquiry officer could not possibly have completed the enquiry proceedings on 30th, as claimed by the management. It may be pointed out that only 2 witnesses 'were examined on behalf of the management, namely, Mushtaq Ahmed (Personnel Officer, Engineering Department) and Iqbal Hashmi (Chief Technical Librarian, Engineering Department). As the enquiry proceedings were ex t)arte and no defence was examined, the examina--tion of these 2 witnesses could not have taken much time and could easily be concluded on the same day. It appears that even the report was submitted by the enquiry officer on the same day. The report of the enquiry officer was produced before the learned Labour Court and it bears the date of 30-5-1978. The enquiry officer was examined before the learned Labour Court and he categorically asserted that the enquiry was commenced and concluded on 30-5-1978. 13. It was next sought to be contended by Mr. Mahmood that the allegations contained in the charge-sheet against the appellant had not been established. The charge-sheet contains 5
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separate and distinct allega--tions/charges against the appellant. The first is that the photo-copy of the provisional Matriculation and Mark-sheet submitted by him to the P.I.A. Has been found forged. This charge is based upon the letter, dated 2-6-1969, written by the appellant to the Senior Administrative Officer (Engi--neering), which was accompanied by photo-copies of the Provisional Matriculation Certificate and the Mark sheet. The letter in ques--tion indubitably bears the signature of the appellant. Even the appellant, in his evidence before the learned Labour Court , did not deny that the said letter carries his signature but tried to wriggle out of the situation by saying that he cannot say whether the said letter bore his signature unless he was shown the original letter. In the said letter, the appellant has asserted that he has passed his Matriculation examination to the year 1968, and was placed in IInd Division with distinction in Urdu. The Provisional Certificate appended with the said letter shows that the appellant was placed in IInd Division and that his Roll No. Was 32928. It further shows his day of Birth as 31-12-1945. This Certificate alongwith the Mark-sheer was sent by the Federal Investigation Agency in connection with a F.I.R. Registered under the. Passports Act against the appellant and some other persons, to Mr. Sami…
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