1995 PLP 128 (PLC)

On the question of mala fide dismissal of respondent No.1, the learned Labour Court observed as under:‑‑ "The petitioner was Vice‑President of the CBA and the mishap of the night of 22‑11‑1989 had annoyed the officers of the mills against him. It is quite natural that they were bent upon causing harm to him on one pretext or the other." By taking the above view, respondent No.1was reinstated with back benefits by the learned Presiding Officer of the Labour Court.

4. In the appeal, the learned Punjab Labour Appellate Tribunal held that the allegation regarding his refusal to climb up the staircase to open the exhaust volve (on 22‑11‑1989), did not amount to misconduct because it fell outside the scope of his duty, but even then he did climb up the staircase but could not complete the work which was required to be done by him. On the allegation regarding sleeping on 22‑11‑1989 and 24‑i1‑1989 he found as follows:‑‑ "Learned counsel for the appellant has not been able to point evidence that on both the dates respondent No. 1 was found sleeping. However, one witness out of the ones examined during the inquiry, stated that respondent No.1was found sleeping in the electrical control room on 22‑11‑1989 (actually it should be 24‑11‑1989). Since respondent No.1was found sleeping not at the place of his duty but at a different place, it is apparent that he had intentionally gone to sleep and not that while on duty he was overcome by sleeping. He, therefore, was guilty of misconduct." The learned Punjab Labour Appellate Tribunal taking the above view held that:‑‑ "Since the respondent succeeds only on a technical ground which is that only one charge had been established whereas the Inquiry Officer found him guilty and the empower had dismissed him on all the three charges, he is not entitled to back benefits." Accordingly, by disallowing the back benefits, the order of reinstatement of respondent No‑1 was upheld.

5. Learned counsel for the petitioner has criticized the impugned order passed by the learned Labour Appellate Tribunal on the ground that after holding that respondent No.1was guilty of misconduct on account of hi; sleeping during the duty hours, at a place which was away from his place of duty, the appeal should have been accepted in toto by upholding the order of dismissal of respondent No.1. Learned counsel in support of his submission ha; placed reliance on Habib Bank Limited v. Musaddaq. Hussain and 2 other: (1993 SCMR 126) whereby it was held by the Hon'ble Supreme Court a; follows:‑‑ "In the case in hand, the statutory provisions quoted above make ii quite clear that the Appellate Tribunal could vary or modify the order under appeal. It was not bound to either sustain it in totally or set i aside completely. As an appellate authority it was open to the learned Appellate Tribunal either to sustain the order or to very or modify i in accordance with the facts established, whatever it may have deemed fit. The contention of the learned counsel for the respondent that the latter had suffered enough for the charges proved against him is a matter for the tribunal to address. In view of what has been stated Above, the appeal is allowed and the case is remitted to the learned Punjab Labour Appellate Tribunal to determine as to what punishment will meet the ends of justice on the charges proved against the respondent." In the precedent case, the employee was dismissed from service on sever charges. The Punjab Labour Appellate Tribunal, on examination of the evidence found that only two out of the en charges had been proved, and therefore, the whole order was set aside d the employee was reinstated u service. Leave was granted to consider t question that order of dismissal ought not to have been interfered with merely for the reason that the other five charges had not been established. It was the background of these facts that the learned Supreme Court rendered the fore quoted finding. It is submitted by the learned counsel for the petitioners that in the present case also the learned Tribunal had found that sleeping 1n a different section on 24‑11‑198! constituted misconduct, therefore, the case,' should be remanded to the Labour Tribunal for considering as to what punishment should be awarded t( respondent No.1for sleeping during the duty hours on 24‑11‑1989.

6. Learned counsel' for the respondent on the other hand has contended that single act of sleeping is not a misconduct. In support of his contention he has placed reliance on a Division Bench decision of this Court in General Manager, Pak. American Fertilizers Limited v. Industrial Court, Lahore and another (PLD 1966 Lahore 822), in which it was observed as follows:‑‑ "Every workman, especially one who has to watch the working of modern complicated machinery put on light duty knows that he shall not got to sleep, but if he goes to sleep, it may be a deliberate act or an unintentional act. It would be, a deliberate act if he goes to sleep intentionally and purposely, but an involuntary act, if sleep engulfs him, as it comes by habit at night, as it may, in spite of his intention to the contrary." Learned counsel also cited Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others (PLD 1983 Lahore 661), wherein it was held that "a solitary instance of sleeping on duty does not amount to misconduct. It can be termed as inefficient working or it may be negligence or neglect of work. Unless, there is a frequent repetition of this act, it will not amount to misconduct. The act or omission of the petitioner may fall in clause (1) of Standing Order NoJ5 and in such a case, the employer may reprimand him, or impose a penalty of fine, but the penalty of dismissal cannot be imposed on him". Reliance was also placed on Rasheed Textile Mills Limited v. Sindh Labour Appellate Tribunal, Karachi and another (PLD 1978 Karachi 77) wherein a learned Division Bench held that single act or omission could not be treated as wilful damage to, or loss to employer's goods or property under S.O. 15(3)(a). He further submitted that the learned Labour Court had relied on the statement of inquiry witness PVC‑6 who had admitted that the Plant had stopped because of the shortage of the: raw material and when he came back after taking tea, Shabbir Ahmed re4pondent No.1was already there. He further argued that the learned Labour Court had also found that action against respondent No.1had been taken by the management on account of his trade union activities being the Vice‑President of the CBA. He further argued that there was material on the record, which showed that inquiry witnesses belonged to the rival union and defend a evidence had been completely ignored. On the basis of these submissions, learned counsel has criticized the order of the learned Punjab Labour Appellant Tribunal, that the reasons advanced by the Labour Court had not been met y the learned Tribunal and his client was held guilty of misconduct on account of sleeping during the duty hours, arbitrarily and in a cursory manner though discussing the evidence on record, although the same had been specifically referred to by the learned Labour Court.

7. After considering the arguments addressed at the Bar, I am of the view that, technically speaking, the contention of the learned counsel for the petitioner is well‑founded because after holding that the act of the sleeping on 24‑11‑1989 constituted misconduct, it was required on the part of the learned Appellate Tribunal to have imposed dome punishment which it might have deemed fit rather than to reinstate (respondent No. 1 without awarding piny punishment. But the submission made by the learned counsel for respondent No.1that the very finding of the learned Tribunal that his client had committed misconduct by sleeping during duty hours suffers from arbitrariness and in application of mind, is equally correct.

8. I have given my anxious consideration to the question, whether the case should be remanded, as urged by the learned counsel for the petitioner, to the learned Labour Appellate Tribunal for awarding some punishment to respondent No. 1 for his misconduct of sleeping on 24‑11‑1989 in the Electrical Control Room. In view of the law laid down in the case of Habib Bank Limited, ibid, the remand is necessary. But the remand is necessary not only to consider the question of punishment for the misconduct aforesaid, but also because the very finding with regard to misconduct requires to be determined afresh after proper application of mind. All the relevant evidence produced by either side should be taken into consideration. There is indication in the inquiry report, in the shape of evidence led before the Inquiry Officer, especially the admission made by the inquiry witness PW 6, that on 24‑11‑1989, the plant had closed down due to non‑availability of the raw material due to which he alongwith other P.Ws. had gone to take tea and when he came back, Muhammad Shabbir respondent was already in the Glue Section. Therefore, even if respondent No. 1 had gone to sleep elsewhere when the plant had closed for want of raw material, can it be said to be an intentional act of sleeping with a view to shirk duty, and hence a misconduct. This question requires proper application of mind. Similarly, the allegation that dismissal was tainted with mala fides on account of his trade union activities needs to be properly attended to in the light of the material on record. The learned Labour Appellate Tribunal shall re-determine whether any misconduct has been committed by respondent No.1, and if so, what punishment should be awarded to him. And if he has not committed any misconduct, whether he should be reinstated with or with out back benefits. Needless to say, that the learned Appellate Tribunal shall give independent findings on merits, without in any way being influenced by anything said herein. In view of what has been discussed above, by accepting the writ petition, the impugned order dated 11‑11‑1991, passed by the Punjab Labour Appellate Tribunal is declared to be without lawful authority and of no legal effect, and the case is remanded to the learned Appellate Tribunal for deciding the appeal afresh in the light of the observation made above. Respondent No. 1 was dismissed from service on 10‑3‑1990. It is, therefore, hoped that the learned Tribunal will decide the appeal expeditiously, possibly within three months. In the peculiar circumstances of the present case, the parties are left to bear their own costs. AA./C‑46/L Case remanded.