2008 PLP 119 (PLC)

SABIHUDDIN AHMED, J.

The petitioner was employed as Auto Cone Operator in the factory owned by the respondent No.1 and was dismissed from service, dated 12-6-1989. However, he was reinstated through the order of the respondent No.3, dated 9-2-1991. After his reinstatement he was directed not to attend duties at Mill but was informed that he would be entitled to receive his monthly emoluments on the payment day or any day afterwards.

2. Nevertheless according to the respondent some Auto Cone Operators working in the mill proceeded on leave and to meet the emergency he was entitled to report the duty immediately. The petitioner however, failed to appear, whereby a show-cause notice was issued on 8-8-1991, stating that his refusal to report for duty after receipt of the letter, dated 18-7-1991 amounted to willful absence from duty punishable as misconduct. The petitioner submitted his reply, dated 15-8-1991 wherein he stated, inter alia, that he was a winder and at no time had performed the functions of an operator, which he was being called upon to perform and with which was not conversant. He demanded that both the show-cause notice and the letter, dated 18-7-1991 be withdrawn.

3. Thereafter, inquiry proceedings were initiated by the respondent No.1 and eventually the petitioner was found guilty of misconduct and the dismissal order was successfully questioned before the respondents Nos.3 and 2 respectively and the final order of the letter has been called in question through this petition.

4. Mr. Suleman Habibullah, learned counsel for the petitioner vehemently argued that the letter, dated 18-7-1991 had never been received by the petitioner. Moreover, he contended that the inquiry was held ex parte and the petitioner was not given a fair chance of being heard.

5. On the other hand Mr. Mahmood Abdul Ghani, learned counsel for the respondent No.1 argued that the petitioner had not approached the Court with clean hands inasmuch as he had moved the National Industrial Relations Commission through an application under section 22-A(8)(g) seeking action to prevent commission of unfair labour practice, which was dismissed on merits vide order, dated 30th December, 1991, which was not questioned in appeal.

6. We have heard both learned counsel and gone through the record. With profound respects we are not inclined to attach too much importance to the objection to the maintainability of this petition raised by Mr. Mahmood Abdul Ghani. Indeed it is axiomatic that a person approaching this Court must do so with clean hands. Since the NIRC was moved one day before the actual dismissal of the petitioner from service he cannot be held liable to the extent that might require dismissal of the petition. Even otherwise we are inclined to take that the jurisdiction of the NIRC under section 22-A(8)(g) and that of the Labour Courts under section 25-A is intended to serve different purposes and the mere factum of dismissal of the petitioner's application for preventive action prior to his actual dismissal from service could not be treated as res judicata by the Labour Court.

7. On merits however, the admitted position seems to be that the petitioner did refuse to work as a Auto Cone Operator and insisted that he could only perform the duty of a winder. However, while his appointment letter does not appear to be on record it is evident from the title of his first application before the Labour Court, (which was decided in his favour) and the observation in the order that he was working only as Auto Cone Operator. As such his refusal to work against that position obviously amounted to misconduct. Other objection as to the proceedings in inquiry appeared to loose their significant when misconduct is apparent from admitted facts. For these reasons we are not inclined to interfere with the concurrent findings of facts recorded by the two Tribunals and would 'dismiss this petition. S.A.K./K-35/K Petition dismissed. ***