P L D 1965 (W (PLP)

6. The simple question, therefore, for consideration is whether on the language of Standing Order 13(3)(i) which is reproduced below it is possible to uphold the view of the learned Industrial Court:‑ "13. (1) , (2) (3) The following acts and omissions shall be treated as misconduct. (a) (b). (c) (d) (e) (f) (g) (h) (i) habitual negligence or neglect of work." It appears to me that the view of the learned Industrial Court in this respect is perfectly correct because the words "negligence or neglect of work" are not used in disjunctive sense. There are very good ground to hold so. Firstly, neglect of work is also a kind of negligence and being of a lesser kind would be covered by it, which has a broader meaning. Secondly, it is a well recognized principle of law that to carry out the intention of the Legislature, it is occasionally found necessary to use the conjunction "or" and "and" one for the other. Since the sub‑clause in question is penal, I am inclined to construe it favourably to the employees. I would, therefore, hold that the neglect of work mentioned in this subsection must be of a habitual nature. I am in respectful agreement with the learned Chairman of the Industrial Court that one single instance of sleeping while on duty cannot be termed as habitual negligence or neglect of work so as to brings it within the mischief of the above‑mentioned Standing Order.

7. It was next urged by Mr. Hassan A. Shaikh that the learned Industrial Court should not have disregarded Exh. R‑13 in holding that the employee in question has been guilty of habitual neglect of work. This contention has also no force because, as observed by the learned Industrial Court the fact that the entry is back‑dated, creates a certain amount of suspicion in respect of this entry. Besides it is difficult to appreciate what was the occasion to give increment to this employee on the first of May 1951, if he was warned on 30‑8‑1960 for riotous or disorderly behaviour for habitual neglect of work. Beside the alleged note on the back of Exh. R‑13 was never brought to the notice of the employee and no explanation was called from him even during the enquiry held by the Enquiry Officer. In my view, the learned Industrial Court was right in disregarding this piece of evidence for holding that Ajab Khan had been guilty of habitual neglect of work. I, therefore, find no force in this objection raised on behalf of the employer's Corporation.

8. The second objection of the employers Corporation is that the Industrial Court should not have granted overall to all the workmen of the Corporation. In my opinion the grievance of the appellant on this point also is most flimsy because the learned Industrial Court has held that only those employees and the workmen, whose clothes are likely to be soiled with the oil of the machinery during the course of their employment would be entitled to one overall per year. Mr. Hassan A. Shaikh did not contend that these persons should not be given an overall. I would, therefore, uphold the finding of the learned Industrial Court in this respect. As a clarification, however, it may be stated that only those workmen would be entitled to the overalls whose clothes are likely to be soiled with the oil of the machinery during the course of their work. Of course a Fitter or a Turner is also covered by this order. In these circumstances, I do not see any force in the employers appeal.

9. Coming now to the appeal filed on behalf of the Employees Union of the above‑mentioned Corporation, it will be noticed that Malik Muhammad Saeed, their learned counsel has only attacked the order on two‑fold grounds. Firstly, that the learned industrial Court should have held that the employees are entitled to three months salary as bonus for the year 1960‑

61. Secondly, that they should have been granted Dearness Allowance at the rate of Rs.20 per month. In support of his first contention that the learned Industrial Court committed an error in not granting bonus, the learned counsel urged that during the year 1960‑61, the Corporation earned a profit of Rs. 2,96,000 and the learned Industrial Court should not have deducted a sum of Rs. 2,00,000 towards depreciation. He further contended that the expenses of Rs. 86,000 for telephone and telegraphic charges should have been disregarded as excessive because in the previous year when there was more profit, the expense in this respect was much less. He further contended that in the year 1958 when the profit was in the sum of Rs. 2,23,000 a month's salary was given as bonus. The contention raised by the learned counsel has not impressed me because it is incorrect that Rs. 2,00,000 have been reserved by the employers' Corporation towards depreciation. On the other hand, only Rs. 98,760 have been reserved for depreciation and Rs. 1,12,333 have been provided for the payment of Income‑tax. The amount of Rs.98,760, therefore, reserved for depreciation cannot be considered to be an excessive amount or not in proportion with the overall financial condition of the employers Corporation. Similarly, no legitimate objection can be raised for reserving an amount of Rs. 1,12,333 towards the payment of Income‑tax. It is, therefore, quite obvious that the employers' Corporation during the year in question have not earned any considerable profit. Admittedly for this reason they did not pay any dividend to their shareholders. I am, therefore, satisfied that the learned Industrial Court was perfectly justified in not allowing any bonus for the year in question.

10. The next objection of the employees that the Industrial Court should have granted Dearness Allowance at the rate of Rs. 20 to all the workers per month has also no force. It will be noticed that the parties had reached an agreement in this respect on 26th March 1960, vide Exh. SD‑C‑3, filed by the Management in which an increase of Rs. 7 per month in Dearness Allowance was accepted to the satisfaction of the Union. Malik Muhammad Saeed has brought to my notice that the employees of Hashmi Cane Company are given much more Dearness Allowance than to the employees in question. In my opinion this can be no ground for raising the Dearness Allowance of the employees in the present case. I quite agree with the finding of the learned Industrial Court that the Union failed to make out a case of any increase in the Dearness Allowance to which they agreed under the above‑mentioned agreement.

11. Malik Muhammad Saeed also challenged the finding of the learned Industrial Court on the question of leave. In my opinion, the fact that a workman gets 15 days earned leave per year and he also gets 10 days sick leave and 5 days casual leave in addition to festival holidays clearly shows that the workmen are given reasonable facilities by the employers in respect of their leave demand. The learned Industrial Court was, therefore, fully justified in rejecting their claim in this behalf.

12. I have carefully considered the various objections raised by the employers and the employees against the award in question. I have not found any force in them. I would, therefore, dismiss both the appeals with no order as to costs. K.B.A. Appeals dismissed.