1985 PLP 1035 (PLC)

FAZL-I-MAHMOOD, J.-This writ petition has been instituted by the Managing Director and the General Manager of Roti Corporation Pakistan Limited to assail the validity of the orders of Punjab Labour Court and Punjab Labour Appellate Tribunal reinstating respondent No. in service with back benefits.

2. The brief facts are that respondent No. 3 Fazal Karim employed as Audit Assistant in the petitioner Corporation. On March, 1978 he informed the, `management vide his letter Annexure that he will not attend the office as his immediate boss, namely, Bashir Ahmed, Internal Auditor, had advised him not to do so as there danger to his life. The General Manager of the Corporation, who appointing authority, on 14th March, 1978 sent a letter to respondent No. asking him to resume duty and informed him that if he had any reasonable apprehension, he could have brought the matter to the notice of authorities, in writing for remedial measures. It was stated that there was no justification for unauthorised absence. He was also directed to report for duty. On the next day, respondent No. 3 sent a reply addressed to Chairman Roti Corporation/ Managing Director. The General Manager again on 20th March, 1978 called upon respondent No. 3 to report for duty, but he failed to do so. He had been informed that his continuous absence and unauthorised leave amounted to disobedience of the lawful orders of the Management and would render himself liable to appropriate disciplinary action. Respondent No. 3 failed to report for duty and remained absent from 12th March, 1978 to 22nd March, 1978 without due sanction of leave. Then respondent No 3 was served with charge-sheet dated 22nd .March, 1978 for uhauthorised absence from duty, disobedience, of reasonable and lawful orders of the competent authority and for making false and baseless allegations of danger to his life at the hands of superior officers with ulterior motive of defaming and harassing the mangement. The charge-sheet was replied to by respondent No. 3 on 27th March, 1978 justifying the absence. His main plea was that he was obliged to obey the orders of his immediate boss i.e. Internal Auditor. His further plea was that the authorities were fully aware of the facts. The manage ment found the reply to be unsatisfactory and ordered for holding an inquiry. Respondent No. 3 was thus asked to appear before Mr. K. M. Rehman, Inquiry Officer on' 8ih April, 1978. Respondent No. 3 was served, but he failed to appear. However, he sent a letter dated 5th April, 1978 that he was unable to attend the office even for the purpose of inquiry because his boss was not ready to take the responsibility of safety of his life. Thereafter, the management made several efforts to procure the attendance of the petitioner including sending him telegrams and com munications through special messenger and an ex parte inquiry was thus held by the Inquiry Officer who after recording of evidence held respondent No. 3 guilty of misconduct and submitted the inquiry report.

3. Thereafter, respondent No. 3 was given a show-cause notice, dated 18th April, 1978 to show cause why be should not be dismissed from service. He was also invited to see the General Manager at any time during the working hours within a period of three days. He was also sent a copy of the inquiry proceedings. Respon dent No. 3 sent a reply to the show-cause notice giving his own version of the matter as initially taken up by him. Respondent No. 3 was accordingly dismissed from service vide management's letter. dated 25th April, 1978 issued by the competent authority i.e. General Manager (Administration and Coordination).

4. Respondent No. 3 aggrieved by the action of dismissal sent a grievance notice to the management which was received on 26th June, 1978 and was replied to by the management vide letter, dated 3rd July, 1978. The employee thereafter had resort to provisions of section 25-A of Industrial Relations Ordinance before the Punjab Labour Court No. 1, Lahore, which was accepted by the Labour Court on 9th July, 1979 on the view that absence of the employee was on the directions issued to him by his immediate boss Internal Auditor and that the General Manager could not be a judge in his own cause. The petitioner then appealed before the Punjab Labour Appellate Tribunal which dismissed the appeal vide impugned order, dated 12th June, 1982.

5. Learned counsel appearing in support of the writ petition argued that there was no material proper before respondents Nos. 1 and 2 for assuming or recording any finding that the competent authority in the case, namely, Abdus Sami was acting as a Judge in his own cause. The learned counsel relying on the grievance petition filed by respondent No. 3 before the Labour Court contended that there was no specific allegation levelled against the competent authority which passed the order against the petitioner and that the allegations were levelled against Mr. Aslam Iqbal, Managing Director of the said Corporation and his so-called clique of officers which have not been specified. In such a situation, there was no warrant for the presumption that the competent authority Mr. Abdus Sami was also a person who was either inimical to respondent No. 3 or was a member of clique.

6. We have gone through the grievance petition filed by respondent No. 3 before the Labour Court and indeed we find that the submission of the petitioner has substance. In such a situation, therefore, the view of the tribunals below that the proceedings should have been taken by a person, above the General Manager, who was none else than Mr. Aslam Iqbal, Managing Director against whom specific allegations are levelled constitutes a patent error of approach. It has also been proved on the record that respondent No. 3 and his immediate superior Bashir Ahmed Internal Auditor were related to each other. It will be interesting to note that Bashir Ahmed himself was also not attending his duties and absenting.

7. After having gone through the entire record, we have reached the conclusion that even otherwise the plea of apprehending danger remains unsubstantiated despite invitation from the competent authority to see him and to apprise him of the situation. Respondent No. 3 has been acting as a tool at the instance of his relative Bashir Ahmed who appears to have his own axe to grind. The conclusion is also irresistible that the petitioner has deliberately despite repeated opportunities elected not to participate in the proceedings. It cannot, therefore, be said that the petitioner was unjustifiably proceeded against ex parte. The plea also does not inspire confidence in view of the fact that according to the findings of the tribunals below, this remains unsubstantiated. There is inherent fallacy in the order of Labour Court when it observes that before conducting inquiry it was necessary to remove the said danger. "May be that was actual or supposed one." If in point of fact there was no danger. there arose no question of removing the same. Respondent No. 3 was required to establish as a fact that the plea of danger was not imaginary or put up. This aspect of the matter even according to the Punjab Labour Court No. 1, Lahore was begging for proof. The proceedings of inquiry or order of dismissal, therefore, passed by the competent authority could not have been struck down on the basis of a supposed apprehension or danger which had not been shown to have any factual existence. The Punjab Labour Appellate Tribunal also fell the same error of approach from which the Labour Court suffered in forming the view that the pro ceedings should have been taken against respondent No. 3 by the Managing Director, namely, Aslam Iqbal. However, a reading of the grievance petition filed under section 25-A of the I. R. O. shows that allegations were levelled by respondent No. 3 against the Managing Director and none else. The view of the Punjab Appellate Tribunal, therefore, that in the case of respondent No. 3 only the Managing Director should have been asked to take action is wholly unsustainable and unwarranted in law. Similarly,/" the Punjab Labour Appellate Tribunal has also strangely held in his impugned order that it was not necessary to give a finding that actually there was a danger to life. Despite having taken this view, it has been held that the failure of the Management to give assurance of safety justified entertainment of the apprehension of danger.

8. We consider it unnecessary to dwell at length on the other pleas raised by the learned counsel for the petitioner because the findings recorded by the tribunals below are sufficient to vitiate the impugned orders. In view of what has been stated above, we would accept this writ petition and declare the impugned orders to be without lawful authority and of no legal effect. In the circumstances of the case, there shall, however, be no order as to costs. A. A. Petition accepted.