DAWOOD COTTON MILLS LTD. Versus GUFTAR SHAH

1. MUHAMMAD HALEEM, J.-These appeals, by special leave, arise from the common judgment of the former High Court of Sind & Baluchistan, Karachi, dated 12th of April, 1974, by which Constitutional Petition No. 554 of 1973 was allowed and Constitutional Petition No. 1149 of 1973 was dismissed.

2. The appellant in Civil Appeal No. K-4466 of 1974 is Dawood Cotton Mills Ltd., which carries on the business of manufacturing cotton textiles and nylon yarn. About 30,000 workmen are employed by the appellant and as many as ,10,000 such workmen are detailed to work in each shift which are three in number. However, according to the available statistics, some 2,000 workmen remain absent ; and out of them, on an average of 200 per day, do so without leave or permission. This works out to about 2,500 workmen who remain absent per year without leave or permission. Respondent No. 1 herein was employed as a "warp repairer" on 3rd of April, 1960, and in November, 1960, he worked as a weaver in the looms Department. On his appointment, respondent No. 1 gave his local address as well as village address which remained unchanged. On 13th of November, 1972, lie attended work and took casual leave for one day, that is 14th of November, 1972. Thereafter, he remained absent from duty without any leave for more than 10 days. He also failed to seek permission for further leave. Therefore, as he was prima facie guilty of misconduct, a. charge sheet dated 2nd of December, 1972, was sent to him by registered post (acknowledgement due) both at his local address as well as his village address and a copy of it was further axed on the notice board outside the mill's premises. The envelope sent at the local address was returned undelivered but the other one was accepted at his village address. As he failed to submit his reply to the charge-sheet, the appellant appointed Mr. A. Majid Abdullah, its Labour Officer, to hold an enquiry into the matter and such information was sent by letter dated 12th of December. 1972, again on both the addresses in the same manner as was done before and a copy of it was affixed on the notice board outside the mill's premises. The notice required him to appear alongwith his witnesses on 20th of December, 1972. This time too only the envelope sent at the village address was accepted.

3. As respondent No. 1 failed to appear on 20th of December, 1972, the enquiry was held ex parte against him and the Enquiry Officer, after examining one witness, submitted his report holding him guilty of the charge of misconduct under Standing Order No. 15(31(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and recommending his dismissal from service. The Manager of the appellant, to whom the report was submitted, accepted it and ordered his dismissal from service from 23rd of December, 1972, under Standing Order No. 15(2)(iv) of the Ordinance. This order was communicated to him at his local address and a copy of it was affixed on the notice board outside the mill's premises.

4. Respondent No. 1, on 8th of January, 1973, came to the mill premises and at the gate he was informed that he had been dismissed from service. He, thereupon, made two representations, but the Management did not re-instate him. Accordingly, ho filed an application under section 25-A of the Industrial Relations Ordinance, 1969, before the Presiding Officer, Junior Labour Court No. VI, Karachi, for re-instatement with back benefits. He took the plea that he was in custody from 16th of November, 1972, to 7th of January, 1973, on - which date he was granted bail and that during the intervening period, he was not informed, in jail, that he was charge-sheeted and ultimately dismissed from service as be had failed to justify his absence of more than 10 days without leave in the enquiry held against him. The Management took the stand that they had no information about his detention in jail or for that matter he had not absented himself wilfully. The further legal objection was that the finding given by the Enquiry Officer was not open to challenge. The Junior Labour Court construed this information to mean that the Management had the knowledge that he was in jail and consequently his absence was beyond his control. Therefore, the Manage­ment should not have taken the action, as it did, to dismiss him from service. He was thus ordered to be re-instated with full back benefits by order dated 1st of March, 1973. The legal objection also did not weigh with the Junior Labour Court and it was also rejected.

5. Being aggrieved by this order, the appellant filed an appeal before the Sind Labour Court No. III, Karachi, which took a different view of the matter. It held that as the notices were sent at the addresses given by him, the onus was on respondent No. 1 to show that he was not available at any one of those addresses which he failed to discharge. Therefore, it was established that the notices were duly sent to him at those addresses, It was further held that he had failed to establish that tie had communicated about his detention to the Management through a visitor who happened to meet him in jail or had sent an application through him. It was next held that he also failed to establish that he was detained in jail from 16th of November, 1972, to 7th of January, 1973 ; and this fact was within the knowledge of the Management. Having held so, the Labour Court concluded that all that was required to be established under Standing Order No. 15(3)(e) was that he was absent without "leave or information" and, therefore, his detention in jail would not absolve him from this charge. It was further held that as the service of the notices was established, it could not be a case of denial of an opportunity to rebut the charge ; and as to the requirement of supplying a copy of the report and the issuance of the second show-cause notice and his right of a personal hearing, the Sind Labour Court held that it was not a requirement of natural justice. Lastly, the Labour Court held, while accepting the appeal, by order dated 28th of March, 1973, that the "trial Court also appears to have acted as a benevolvent despot in granting relief to respondent which was not desirable".

6. Respondent No. 1, thereupon, challenged this order in the former High Court of Sind & Baluchistan, Karachi, through Constitutional Petition No. 554 of 1973 ; and a learned Single Judge in the High Court held ; firstly, that neither the charge-sheet nor the letter requiring him to participate in the proceedings nor any intimation of his dismissal were duly served on him, and, therefore, the Management should have resorted to the mode of service by publication in a newspaper as an alternate mode of personal service as was held in Bata Shoe Co. (P) Ltd. v. D. N. Ganguly and others AIR1961SC1158 . Accordingly, there was no compliance of Standing Orders Nos. 12(3) and 15(4) of the Ordinance, and secondly, that there was a violation of Standing Order No. 15(4) as neither a copy of the enquiry report was supplied nor a . second show-cause notice was served on respondent No. 1 before the penalty of dismissal was imposed. In the result,. the learned Single Judge accepted the petition of respondent No. 1.

7. 1n C. A. K-47 of 1974, the appellant is also carrying on the similar business of manufacturing textile goods. Respondent No. 2 was employed as a workman in the appellant's mill ; and as he absented himself without leave as from 14th of October, 1972, onwards, therefore, a charge-sheet dated 1st of December, 1972, was sent to him by registered post (acknowledge­ment due) at his given address which was returned undelivered by the postal Department After the lapse of the period prescribed for submitting an explanation, the appellant appointed an Enquiry Officer who again sent a registered notice to respondent No. 2 at the same address intimating him the date on which he was required to appear before him to answer the charge of misconduct levelled against him.. This intimation was also returned undelivered. Nonetheless, the Enquiry Officer held an enquiry on the appointed date, that is 11th of December, 1972, and examined witnesses produced on behalf of the appellant ; and on the conclusion of the enquiry, be submitted his report the same day in which be held respondent No. 2 guilty of the charge of being absent without leave for more than 10 days. The appellant, after duly considering the report of the enquiry officer, ordered his dismissal from service on 14th of December, 1972, and such intimation was sent to him by registered post which was again returned undelivered.

8. Respondent No. 2, thereafter, filed an application on 16th of May, 1973, under section 25-A of the Industrial Relations Ordinance, 1969, for re-instatement with full back benefits before the Junior Labour Court No. V, Karachi. His case was that he was arrested on 14th of October, 1972, and remained in judicial custody till 25th of December, 1972, when he was released on bail and it was, therefore, on '1st of January, 1973, that he reported for duty but be was not allowed to join on the ground that he was dismissed from service for being absent without leave ; and that further be had submitted three representations to the Management seeking permission to resume duty but without any success. The Junior Labour Court held that his application was time barred as it was filed after the expiry of the prescribed period of three months.

9. Respondent No. 2 went in appeal before the Sind Labour Court No. IV, Karachi, and succeeded as it was held that in the absence of personal service, the Management should have resorted to the alternate mode of service by publication in a newspaper. Therefore, there was a violation of the rule of natural justice as he was condemned unheard. Further, as he was not served, time did not begin ' to run as from the date of dismissal and the Junior Labour Court, on this aspect of the matter, bad misapplied the bar of limitation. In the result the appeal was allowed.

10. The appellant, thereupon, challenged this order in the former High Court of Sind &. Baluchistan, Karachi, through Constitutional Petition No. 1149 of 1973, which was heard alongwith Constitutional Petition No. 554 of 1974 and dismissed on the same grounds as aforementioned. The bar of limitation was also held not to apply to the case' of respondent No. 2..

11. Leave to appeal was granted to consider the following questions in Civil Appeal No. K-46 of 1974 :- '

12. "(d) Whether the High Court is right in thinking that under Standing Order 15(4) a show cause-notice issued by the Management requires publication in newspapers, besides the ordinary method of service of notice at the given address of the employee and its affixation on the notice board of the industrial concern ; and

(b) Whether the High Court is similarly right in thinking that the relevant Standing Order prescribes a second show-cause notice after the enquiry has been completed and a punishment is proposed by the Enquiry Officer or the Management.

13. Besides the above, the following further questions were posed for consideration in Civil Appeal No. K-47 of 1974 :-

14. "(c) That clause (4) of Standing Order 15, prescribing the service of a show-cause notice on the employee is merely directory in nature and its non-compliance would not vitiate the proceedings if the employee is heard by the Junior Labour Court, as in that event the requirements of natural justice would be fully met ; and

(d) that the High Court has erred in holding that the application made by the employee Khaista Khan under section 25-A of the Ordinance to the Junior Labour Court was in time, as the period of limitation is to run from the date of the order and not from the date of its communication to the employee. In any case, the employee concerned kept quiet for a period of 5 J months without any justification."

15. Adverting now to the first question as to whether the alternate mode of substituted service by publication in a newspaper in addition to the other modes herein referred to above was a necessary condition: It may, at the outset, be stated that there is no provision in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which prescribes any particular mode of service but what is to be ensured is that the person affected should be-informed by any mode which is a pre-condition of the validity of any proceedings affecting him. This itself flows from the concept of the rule of audi alteram partem. 1n this connection it would be of advantage to refer to the provision which incorporates this rule, namely, Standing Order No: 15(4) of the Ordinance. ` It runs as under ;.-

16. "(4) No order of dismissal shall be grade unless the workman concerned is informed in writing of the alleged misconduct (within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer) and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and (the employer shall) institute independent inquiries before dealing with charges against a workman."

17. It was, accordingly, contended by Mr. Sharifuddin Pirzada that the words "informed in writing" are indeterminate and refer to any convenient mode of service by which the affected workman gains knowledge of the impending proceedings. This Ordinance imposes rights and obligations inter se and, therefore, for their enforcement the registered addresses were taken. If the workman is available in the mill's premises, there would be no difficulty in complying with the duty cast by Standing Order No. 15(4) ; but if he is not available then it must be understood that the parties had contemplated to communicate according to the ordinary usage of mankind, that is by post. In the present case; as is obvious from the narration of facts, registered' notices were sent to respondent No. 1 at the addresses given by him and those posted at his village address were accepted. Further, the notices were affixed on the notice board, outside the mill's premises, on each occasion. The further fact is' that respondent No. 1 did not intimate about his present whereabouts so as to render the service of notice effective, if he was not available at his given addresses. There was thus a compliance with the statutory duty to inform respondent No. 1 in writing of the impending proceedings ; but as to whether this duty also implied that the notices should actually be served and received, there is no such invariable rule. An instance of this kind would be where the workman himself impedes the actual service of notice either by failing to inform his changed address or by deliberately obstructing service. It would be apt here to refer to a passage highlighting it from de Smith's Judicial Review of Administrative Action, 3rd Edition, at page 173 :-

18. "Assuming that there is a duty to give prior notice, this does not invariably imply that notice must actually be served and received, it may be sufficient to take reasonable steps to serve each notice, and it is not uncommon for legislation so to provide. If the number of persons affected is indeterminate, to give public notice may be enough to satisfy the rule. If one upon whom notice ought to be served obstructs service or negligently fails to notify a change of address, or if the matter is one of special urgency, non-service of notice may be excused."

19. Further, on the same point is the case of James v. Institute of Chartered Accountants (1968) 98 L T 225 . In this case notices were sent by post to the plaintiff at the address given by him but as he had moved out from that place to some other abode, without intimating the change of address, the notices did not reach him which were returned unserved through the Dead Letter Office. Accordingly, his name was removed from the membership by a resolution of the Council of the Institute as he had failed to pay any subscription for six months. The plaintiff, thereupon, commenced action against the Institute to challenge his improper removal from membership of the Institute and for damages. The action came on for trial before Kekewich, J., who held at page 228 of the Report as under :-

20. "If a person does give an address as part of the terms of his membership, and letters are sent to that address, it seems to me to follow that that is a sufficient delivery of the letter, especially where, as in the present case, there is no precise provision as to what is to be done, but only that he is to have a fair opportunity of being heard. A letter addressed (I will take it as only one, but there were two letters addressed, one after the other) to the address which the plaintiff had given, must, I think, be taken to have afforded him a fair opportunity of attending to the matter to which those letters referred.

21. It seems to me that he has contributed directly 'to the exclusion by his own folly. I think that the Institute was entitled to act apart from that on the footing that the plaintiff simply did not receive the notice, even by accident, as a matter of law. But this goes further than that, because the plaintiff himself has been the origin of his own misfortune. Therefore, so far as the action is concerned, I must give judgment for the defendants."

22. This statement of the principle was approved by the Court of Appeal, Therefore, on this principle where the person against whom action is proposed to be taken by his own negligence impedes the actual service of notice, h cannot thereafter be heard to say that he was not actually served and for that matter to challenge the decision taken in his absence. It applies on all fours to the case of respondent No. 1 as there was nothing further which the provision enjoined to give to him an opportunity of being heard, the moreso when the notices at his village address were accepted in which case also the want of knowledge could not be pleaded.

23. Now the learned Single Judge, on the assumption that respondent No. 1 was not duly served for the reason that he was in detention held that the Management should have resorted to the mode of service by publication in a newspaper ; and for this he relied on the case of Bata Shoe Co. (P) Ltd. v. D. N. Ganguly and others. However, a reading of that case eminently shows that it is distinguishable on facts and the suggested mode of service turns on the peculiar facts of the case as there was confusion as to the identity of the 11 workmen 'who were charge-sheeted for going on illegal strike. It so happened that the charge-sheets were sent at their village addresses but they were returned undelivered and on the same day, on which the charge-sheets were despatched, notices were issued in certain newspapers that a group of workmen had engaged in an illegal strike and that all such workmen were liable to be penalised and had been charge-sheeted and such charge-sheets had been sent to them individually by registered post (acknowledgement due) and a copy of it was displayed on the notice board in the factory premises. However, the peculiar feature was that their names were not disclosed and, therefore, the Supreme Court held that as the notices sent to the 11 workmen who had allegedly gone on strike were returned unserved, the proper course was that they should have been served by the alternate mode of publication in a newspaper. This by no means lays down a positive rule as to the mode of service in each and every case.

24. Further, this mode is usually resorted to where the number of persons' is indeterminate or their identity is not obvious or where it is not possible to serve otherwise on account of the fraud of one of the parties. Under the caption. "the Right to be heard", Paul Jackson, in his book on Natural Justice, 1973 Edition, states thus, at page 10 :-

25. "However, the fact that whereabouts of a party to proceedings 'are unknown so that notice cannot be given to him personally of the case he is to meet does not prevent a decision being taken in his absence. The English Courts have their own rules for serving notice when parties cannot be found and can hardly regard similar provisions whether on the part of foreign Courts or tribunals in England as contrary to natural justice. The position is of course very different where the rules as to substituted service have been invoked as a result of the fraud of one of the parties."

26. This principle was re-affirmed in the Second Edition of his book at page 64 and substituted service was suggested in cases where either the persons are unknown or their identity cannot be reasonably ascertained or where it is otherwise necessary or expedient to dispense with the personal service. Even in the Civil Procedure Code substituted service is ordered where the defendant obstructs the service of summons either by refusing to accept the summons or Where he makes himself scarce or his whereabouts are not known, However, this mode under the Code is only resorted to when there is material to hold that service in the ordinary manner cannot be effected ; and it goes without saying that it involves considerable expense if it is to be adopted as an ordinary mode in establishments employing a large number of workers and this could not be the spirit of the legislation if balance is to be maintained.

27. Concluding, therefore, it is only in the exceptional circumstances that the mode of substituted service is invoked which do not exist in the present case ; and I would even go to the length of saying that if the provision casts a statutory duty to intimate, in writing, to the workman about the action proposed to be taken against him, then correspondingly the workman is also under an obligation to keep the Management informed of his whereabouts and in case of .his failure to do so, he himself impedes the obligation on the part of the Management to afford to him an opportunity of being heard and, therefore, he cannot complain of a decision having been taken in his absence. The learned Single Judge was, therefore, in error in holding that respondent No. 1 was not informed of the impeding action against him as the Management had failed to adopt the mode of substituted service by publication in a newspaper. Equally, the learned Single Judge was not justified to hold, on almost the same facts in Civil Appeal No. K-47 of 1974, that respondent No. 2 was not duly served and, therefore, these reasons would cover his case-as well.

28. I would now deal with the second question, namely, as to whether Standing Order No. 15(4) prescribes the giving of a second show-cause notice after the enquiry is completed. The crucial words in this provision are : "is given an opportunity to explain the circumstances alleged against him." Therefore, what is to be determined is whether these words spell out the concept of a second show-cause notice which was a constitutional safeguard and was, for the first time, incorporated in section 240(3) of the Government of India Act, 1935, in the following words;-

29. "Until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."

30. This safeguard related to the second show-cause notice only in regard to the punishment proposed to be awarded and continued in the subsequent constitutional enactments till it was omitted from the 1973 Constitution.

31. In The High Commissioner for India and another v.

1. M. Lall P L D 1948 P C 150 , the expression "a reasonable opportunity of showing case against the action proposed to be taken in regard to him", occurring in section 240(3) of the Government of India Act was construed to mean that no action was proposed within the meaning of this subsection until a definite conclusion was reached on the charges and the actual punishment to follow was provisionally determined. I may add here that this safeguard was not at all concerned with the enquiry into the charge against the delinquent Government servant prescribed under rule 55 of the Civil Services (Classification and Control) Rules, framed under section 96(B) of the Government of India Act, 1919, which was left unaffected as an administrative rule ; and this preceded the operation of the constitutional safeguard. Therefore, the constitutional safeguard and the enquiry proceedings were distinct in their application and the former was not a part of it. This is further apparent from the re-enacted clause (2) of Article 311 of the Indian Constitution.

32. "(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry."

33. In this clause the requirement of natural justice and the constitutional safeguard have been incorporated distinctly. This being so, this requirement was a creation of the constitutional provision and it was not considered ac a part of the rules of natural justice.

34. In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him. All that this conveys is : firstly, an opportunity to deny his guilt and establish his innocent which the workman can only do, provided he is told what the charge levelled against him are and the allegations on which such charges are based ; , and secondly, an opportunity to defend himself by cross-examining the witnesses and by examining himself or any other witness in support of hi defence. As the rules of natural justice are not embodied rules, therefore, compliance is only needed to the extent to which such rules are incorporated in the statutes. 1 bus, the second requirement of the provision does not travel beyond what is secondly stated. This conclusion gains strength from the following observation in the case of Suresh Koshy George v. University of Kerala and others ( AIR 1969 S C 198 ) at page 204 of the Report :-

35. "There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that Article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. Even if a show-cause notice is provided by law, from that it does not follow that a copy of the report on the basis of which the show-cause notice is issued should be made available to the person proceeded against or that another inquiry should be held thereafter."

36. In the same volume of the Report at page 513, this principle was approved by the majority opinion in the case of Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S. Railway Workers' Union ; and as it is a labour case, I would venture to reproduce the relevant observation of the majority opinion :-

37. "As regards the modification requiring a second show-cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In none of the decisions given by Courts or the tribunals such a second show-cause notice in case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under Article 311. Even that has now been removed by the recent amendment, of that Article. To import such a require­ment from Article 311 in industrial matters does not appear to be either necessary or proper and would be equating industrial employees with civil servants. In our view, there is no justification on any principle for such equation. Besides, such a requirement would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in as short a time as possible."

38. The principle laid down in the case of Suresh Koshy George v. University of Kerula and others was later re-affirmed by the same Court in the case o Shadi Lal Gupta v. State of Punjab (A I R 1973 S C 1124). Accordingly, neither the giving of the second show-cause notice nor the supplying of the report of the Enquiry Officer is a requirement of the rules of natural justice. There can however, be instances where the report of the Enquiry Officer may contain material extraneous to the charges or anything in addition to what is found in the original allegations against the workman or other substantial defect H hick could have prejudiced his case ; but for that redress is provided under section 25-A of the Industrial Relations Ordinance. This would, by no means, provide a ground for enlarging the scope of the provision so as to include both these requirements.

39. In Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore and others 1973 S C M R 455, the Lahore High Court had interfered with the order of the Punjab Labour Appellate Tribunal as the report contained extraneous matters which were not relateable to the charges levelled against him in regard to which he had submitted his explanation and which greatly influenced the Enquiry Officer to recommend the dismissal of the workman ; and as the second show-cause notice, which formed part of the conditions of the workers of the Road Transport Corporation, was not given to the delinquent workman, his case was held to have been prejudiced as he had no opportunity to rebut the allegations. It was in these circumstances that this Court, while dismissing the petition for special leave to appeal, held that the workman should have been furnished with the copy of the enquiry report and also the second show-cause notice as this was consistent with the rules of natural justice. This observation must be understood in the context of the peculiar facts of that case and does not lay down the broad principle that they form part of the rules of natural justice or for that matter to be spelled out from the provision under consideration. Accordingly, this question was not foreclosed by this observation and it was. therefore, that leave was granted for its consideration. In the result, I would hold that from the provision, as is worded. neither the requirement of the second show-cause notice nor of supplying a copy of the report can be spelled out. The High Court erroneously held so on the impression that this requirement is a part and parcel of the rules of natural justice, The discussion on this point would cover the common ground in both the appeals ; and as the appeals succeed on both these grounds, it is not necessary to examine additional ground (c). In regard to ground (d), I would uphold the conclusion of the Junior Labour Court No. V, Karachi, as the application under section 25-A of the Industrial Relations Ordinance was per se barred by limitation.

40. In consequence thereof, the orders of dismissal of the concerned respondents are upheld in both the appeals, the impugned order of the High Court is set aside and the appeals are allowed but with no order as to costs. Accordingly, the writ issued by the High Court in Petition No. 554 of 1973, is recalled whereas it is issued in Constitutional Petition No. 1149 of 1973. s. A. H. Appeal allowed.