1981 PLP 912 (PLC(CS))

Mr. Malik for Respondent. Date of hearing : 15th February, 1981. The appellant, who was employed as a general workman in the respon dent Industries at its Karachi factory, was ordered to be transferred from Karachi factory to the Hyderabad factory with effect from 30th June, 1979. The appellant was required to join his duties at Hyderabad with effect from 4th July, 1979 after availing of joining time. The appellant, however, failed and in fact declined to join his duties at Hyderabad and on the contrary remained absent even from his duties at Karachi. He was accordingly charge‑sheeted on the twin allegations of refusal to obey orders of his transfer and unauthorized absence from his duties and on the basis of the report of the Enquiry Officer, he was dismissed from service with effect from 4th July, 1979 though the order of dismissal itself is dated 21st August, 1979. The appellant challenged the orders of his dismissal before the learned Labour Court which dismissed his grievance petition on the ground that the twin misconduct of the appel lant had been duly established in an impartial and fair domestic enquiry. The learned Labour Court also repelled the contention of the appellant that Mr. Shamsul Islam who had issued the orders of his dismissal, was not competent to do so. Aggrieved by this decision, the appellant has come up in appeal to this Tribunal.

2. I am in agreement with the finding of the learned Labour Court that the appellant not only disobeyed the orders of Isis transfer to Hyderabad but that further he was unauthorizedly absent from his duties after the orders of his transfer were communicated to him. I would also concur in the view taken by the learned Labour Court that Mr. Shamsul Islam was the factory manager of the respondents at Karachi. The twin questions, however, which arise for consideration are :‑ (a) whether Mr. Shamsul Islam was competent to issue the orders of dismissal in respect of the appellant after the latter was transferred to Hyderabad and had ceased to be a workman attached to the Karachi factory, and (2) whether the appellant could be punished for his absence from the Karachi factory after the orders of his transfer to Hyderabad or his misconduct lay in remaining absent from the factory at Hyderabad.

3. Although it may be conceded that Mr. Shamsul Islam, the factory manager of the respondents at Karachi was authorized to transfer the appellant from Karachi to Hyderabad, it has not been established that he was authorized to dismiss an employee who had been transferred to Hyderabad and had ceased to be borne on the rolls at his factory at Karachi. In fact Mr. Shamsul Islam admitted in his evidence before the learned Labour Court that he was not authorized to take action against the workmen employed in Hyderabad factory of the respondents. Mr. Malik Sher, the learned representative of the respondents attempted to get over this difficulty by arguing that though the appellant had been transferred to Hyderabad, he had not joined duties at Hyderabad, and consequently, he continued to remain under the jurisdiction of the factory at Karachi. This contention, however, overlooks the stand of the res pondents themselves, which is also stated in the reply, dated 5th July, 1979 from the respondents to the appellants letter, dated 5th July, 1979 that by reason of his transfer to Hyderabad, the question of admittance of the appellant in Karachi factory was out of question and that he was borne on the strength of Hyderabad factory. Since the appellant had ceased to be borne on the strength of the Karachi factory, I am unable to see how the manager of Karachi factory was entitled to order the appel lant's dismissal, particularly in view of the frank admission of the Karachi manager himself that he had no authority to dismiss the workmen at the Hyderabad factory. The action, if any, should have been taken by the factory manager at Hyderabad. It was immaterial whether the appellant had joined his duties at Hyderabad or not. No rule or practice of the respondent factory was cited to show that the appellant was to be deemed to be borne on the strength of the Karachi factory.

4. If on the other hand, it is contended that till the appellant mined his duties at Hyderabad, he continued to be borne on the strength of the factory at Karachi, then the appellant was entitled to be permitted to enter into the Karachi factory. But, the admitted position is that he was refused entry in the Karachi factory. The position that emerges is that, on the one hand, he has not been considered by the respondent establishment as an employee of the Karachi factory and accordingly was not permitted to enter the Karachi Factory while on the other hand, he was punished by the manager of the Karachi factory. This stand, in my humble opinion, is contradictory and cannot be permitted.

5. Mr. Malik Sher had also originally contended that the present appeal was not maintainable as the memo of appeal was not signed by the appellant. However, in view of the report of the Government Hand writing Expert that the signature on the memo of appeal tallies with the admitted signatures of the appellant, Mr. Malik Sher abandoned this plea.

6. The upshot of the above discussion is that the orders of dismissal passed by the manager of the Karachi factory of the respondent are invalid and cannot be sustained. I would accordingly set aside the same and direct the respondent to withdraw the same and afford an oppo rtunity to the appellant to join his duties at Hyderabad. At the same time, it would be open to the factory manager at Hyderabad, to take disciplinary action against the appellant, if he so considers it fit and the rules of the establishment authorized him to do so. I do not consider that this is a case fit for grant of back benefits to the appellant as it is an admitted position that the appellant had declined to accept the transfer to Hyderabad and has not joined his duties at that place. Appeal accepted.