1997 PLC 317 (PLP)

Soundness of the judgment announced on 12‑7‑1995 by the learned Labour Court, Bahawalpur has been called in question by the establishment, as also the employee, by filing separate appeals, which are proposed to be disposed of together by this single judgment, being rendered in the main appeal, "Cibageigy (Pakistan) Limited, Karachi v. Fida Hussain". The facts briefly stated are as follows.

2. Fida Hussain was on 1‑4‑1989 employed as Chowkidar by the Cibageigy (Pakistan) Limited and on 10‑10‑1994 his services were terminated, after allegations of misconduct were established in a regular inquiry, which he was made to face, following service of show‑cause notices. He challenged the order dated 10‑10‑1994, by filing on 31‑10‑1994 a grievance petition under section 25‑A, Industrial Relations Ordinance, 1969, which was accepted and his reinstatement in service was ordered, without, of course, back benefits, by Punjab Labour Court No. 8, Bahawalpur, on 12‑7‑1995.

3. According to the petitioner before the Labour Court, the second show‑cause notice was issued and inquiry was ordered not by the competent Authority; he was not offered assistance of a 'helper', and opportunity to cross‑examine the witnesses of the establishment was not allowed, nor was he afforded personal hearing. Copies of the inquiry proceedings and of the inquiry report were also not provided to him. The allegations against him could not be construed as constituting misconduct, calling for major penalty of dismissal from service.

4. In so far as the technical objections are concerned, the same have been spurned, as being without force, by the learned Labour Court, and I need not discuss the same, therefore. It is, however, to be pointed out that the establishment had also a legal objection to raise against the competence of the grievance petition, the respondents wherein were the Managing Director and the Personnel Manager of the company, although Fida Hussain was not their domestic servant or a personal employee. Being an employee of the establishment, he should have filed the appeal against the establishment and not against its officers. An unsuccessful effort has been made by the learned counsel for the respondent to contend that the employee was aggrieved by the action taken against him by the employer, the officers of the concern, similarly as they had felt offended against certain acts of the employee and had decided to proceed against him, and, as such, the industrial dispute was between Fida Hussain, on one hand, and the Managing Director and the Personnel Manager, on the other, and they were, therefore, the proper parties. The argument has not impressed me, and the fact remains that the grievance petition suffers from a manifest defect in form.

5. The employee had the assistance of the General Secretary of the C.B.A., in the course of proceedings of inquiry, and he had been allowed full and fair opportunity of participation, as has been concluded by the learned lower Court, in para. No. 2 of its judgment. Fida Hussain had appeared as his own witness and tendered in evidence certain documents, and, in rebuttal, the establishment had examined two witnesses, Muhammad Zubair (Purchase Manager) and Pervaiz Akhtar (Assistant Manager), and as many as seventeen documents had also been placed on record in documentary evidence.

6. Exh. P‑3, the appointment letter, had been signed by two persons, Muhammad Zubair and Rashid Usman. The latter had interviewed and selected Fida Hussain as Chowkidar, and he had in that capacity signed the letter of appointment, although the appointment order had been issued by Muhammad Zubair (R.W. 1), who, according to the petitioner himself, was a notified Factory Manager. Show‑cause notices Exhs. P‑4 and 5 were also signed and issued by Mr. Zubair. Fida Hussain's assistant or helper, Imran Ali, had received copies of the inquiry proceedings and the inquiry report. In the opinion of the learned Labour Court, the petitioner had been provided full opportunity of participation in the proceedings and his 'helper' had also cross‑examined the witnesses. Non‑service of final show‑cause notice, following an inquiry, will not prejudice the proceedings in any manner and is A not a requirement of law, as has been laid down in PLD 1981 SC 225, Dawood Cotton Mills Limited v. Guftar Shah and another. The same is to about non‑supply of report of inquiry.

7. Two show‑cause notices dated 29‑5‑1994 and 9‑6‑1994 Exhs. P‑4 and 5 were served on the employee. The same find a detailed mention in f para. No. 10 of the impugned judgment. Warehouse Assistant, Mr. Muhammad Arif, had, on a visit to the place, at about 10‑30 p.m. on 2‑5‑1994, found Fida Hussain attending to an outsider. instead of attending to his duty. When the Assistant questioned Fida Hussain in that regard, he became furious and ill‑mannerly announced that if presence of his guest was being taken exception to, no member of the staff would be allowed entry into the premises, and simultaneously he instructed Muhammad Shaukat, Security Guard, on duty, not to open the main gate, even if the Warehouse Incharge was around. The learned lower Court has, i;t this regard, upheld the plea of the petitioner that the Warehouse Assistant had no business to come there for any purpose, including surprise checking, observing that the Administration had delegated its powers to the Warehouse Incharge to check and report, and he could not further delegate his powers to his assistant, and, as Fida Hussain, Chowkidar, had no advance information about the Assistant's visit, he was perfectly justified to stop him at the gate, or not to take notice of him inside the premises. The argument advanced by the learned counsel, representing the employee, adopted by the learned Labour Court, is odd indeed. Was the law or rule of delegation of powers in issue, in any way? What did they mean by the term 'Administration' and who was the Administrator in the set‑up, is not really known. How did then the Court come to the conclusion that the Ware‑house Incharge had delegated powers for checking working of the subordinates and initiating disciplinary proceedings against the defaulters and such powers were not enjoyed by ‑the Warehouse Assistant. It would also be incorrect to assume that the accused employee had behaved in that manner, owing to a misunderstanding, as he might have treated Muhammad Arif. Warehouse Assistant, not to be on duty, and not to have emerged there for surprise checking and had taken him just as an ordinary visitor, having casually come that side, after the duty hours. Was there any room for such misunderstanding? The Assistant was not a stranger, but was very well‑known to the employee, and there was no justification whatever on the part of the employee to have disobeyed him or to have misbehaved with him. Suppose, Stenographer of the Court, Reader or Ahlamad; for doing official work, comes to the Court, late in an evening, or on a holiday, will Chowkidar of the Court be entitled not to allow him entry and not to permit him do his work, or can he take up the plea that he had just not recognised the official or had not followed the object of his visit? The Registrar of this tribunal. and not the Chairman, necessarily, may undertake checking of any kind, by paying a surprise visit to the Court premises, and if the Chowkidar opts to have a row with him, he cannot be excused for the insolence.

8. Reading of the reply, Exh. R. 2 in response to the show‑cause notice, Exh. P. 4, would be revealing. There Fida Hussain had said that he had not allowed Mr. Arif to make use of the telephone facility for talking to somebody at Sahiwal, and he had felt it very much. It is further stated by Fida Hussain that he had also taken exception to surprise visit made by the Assistant, without any authorisation, and this had further enraged him. No such plea was taken up by Fida Hussain in evidence before the, Inquiry officer or the Labour Court. It is to be pointed out that the establishment had tendered, in the inquiry proceedings, even an authority letter dated 2‑5‑1996, issued in favour of the Inspecting Assistant.

9. The Karachi Warehouse had caught fire in April, 1994, causing colossal damage to the property worth crores. Promptly, afterwards, measures were adopted by the establishment to provide safeguards against ;accidence of similar mishap. On 2‑5‑1994, as such, the Warehouse Assistant as specially authorised to conduct surprise checks. Delinquency on the part of the Chowkidar, in respect of vigilance, thus could not be excused or tolerated, he had, therefore, been taken to task by the Assistant on inspection One would be assumed to hear the Chowkidar saying that he could not allow a superior entry into the premises without seeing the 'authority'. In evidence, Fida Hussain has nowhere said that he had asked the Assistant to show to him the authority'. 10, In this behalf, another aspect of the matter is noteworthy. The respondent had, in his reply dated 2‑6‑1994, taken up the plea that watchmen, including himself, had not anything to do with the gate duties, as the same was the business of the security guards, professionally trained, and employed by the establishment for the purpose. How could Fida Hussain as Chowkidar question arrival of the Assistant to the premises of the Warehouse, when the security guards posted at the main gate had allowed him entry. It is also averred by the employee that the whole case had been set up against him at the instance of Mr. Arshad Mushtaq, the Warehouse Incharge, with whom he had developed differences, especially as he had brought to the notice of the establishment the irregularities, embezzlements, etc. being indulged in by the officers. Although the Warehouse Assistant and the Warehouse Incharge made their statements in inquiry proceedings, they were not cross‑examined by the accused employed along the aforesaid lines

11. In so far as the second charge is concerned, it was to the effect that at night, at about 2‑30 a.m., on 22‑5‑1994, Fida 1lussain had been found fast asleep in the Warehouse and that this had been witnessed also by another watchman, Muhammad Ayub, as well as a security guard, Muhammad Shaukat (of the Phoenix Security Company). As watchman, Fida Hussain was expected to be awake and alert, but he had gone to sleep. In the opinion of the learned Labour Court, the act of the employee in having just a 'wink of sleep' was excusable, as it might be absolutely intentional. An effort has been made to distinguish this case from the one reported in 1995 PLC 426 (Karachi High Court). In that case the person concerned was found asleep near a machine in operation. Employee's act of sleeping or sitting idle by the machine, during duty hours, was considered to be an instance of subversion of discipline and disorderly behaviour. It has been observed that sleeping by the side of a running machine could well endanger property, as also human lives, but Fida Hussain's slumber, detected by Mr. Kamran Rafi, Warehouse Assistant, was an innocent and harmless act, and in any case it did not constitute such a serious offence, which would warrant imposition of a major penalty. Here it has been explained by the learned counsel for the appellant that the respondent had been found fast asleep on a cot and it could not be considered to be an unintentional or an un control able act, which, any human being, especially during night, could fall prey to. It is stated that valuable products, costing crores of rupees, used to be stocked in the Warehouse premises, and gravity of the lapse on the part of the official, particularly following that massive fire incident, having occurred in the Karachi Warehouse, could hardly be under‑estimated. If a watchman is allowed such indulgence and is permitted to have the liberty of taking rest or going to sleep, during duty hours, it will wholly defeat the very purpose of employing a Chowkidar for watch and ward duty. It would, in turn, also give a licence to the other watchmen to display similar kind of delinquency. .

12. It appears to have, therefore, rightly been contended by the learned counsel for the appellant that the learned Labour Count has grossly erred in affording edge to the accused employee, on both the counts, and in not realising the gravity of the situation and the deep concern of the establishment in the matter. Misconduct, as defined in Standing Order 15(3), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, certainly does not furnish an exhaustive list of the instances, which were to constitute acts of misconduct, calling for imposition of penalty, 1993 PLC 1069 (Punjab Labour Appellate Tribunal). Learned counsel has cited a number of authorities, to bring home his point that the reported instances of delinquency, indiscipline, rowdyism and riotous behaviour amounted to acts subversive of discipline on the part of the employee, which warranted serious notice and award of an exemplary punishment. 1986 PLC 1158.and 1993 PLC 301 (Karachi High Court), PLD 1979 Karachi 692, PLD 1967 SC 367, 1995 PLC 524 and 1984 PLC 45 1 Lahour Appellate Tribunal Punjab), 1992 PLC 1109 (Supreme Court) and 1987 PLC 737 may be referred to in this regard.

13. It has mainly been canvassed by the accused employee that reports against him had been made maliciously and revengefully by the officers of the establishment, when he arrayed as respondents in his grievance petition. It has, however, to be pointed out that although the learned Labour court had announced its decision orally on 12‑7‑1995, the establishment had, on the very next day, i.e. on 13‑7‑1995, in obedience to the orders, reinstated Fida Hussain in service, vide order Annexure ' Y'. He has throughout been paid his salary, although he was not required to attend to his duty, in view of his apprehensively outrageous conduct. It would thus follow that the establishment had been driven by no malice, bias or prejudice against the employee. It has rightly been urged that unless the finding of the Inquiry Officer was found to be perverse and not based on facts, the same should E ordinarily not have been interfered with or reverted by the Court. Both the happenings have not been denied by the employee himself, although he has endeavoured to minimise their gravity or to impart the same a different colour. Question then was confined to judging of seriousness of the incidents and determining the quantum of punishment warranted. Ciba‑Geigy (Pakistan) Limited is a multi‑national firm of repute and is engaged in manufacturing pharmaceutical products and pesticides. It has to keep up its image on international plane. It is a very wide set‑up and was not supposed to have stopped low, in dealing with a low‑paid employee, who, it appears, had been proceeded against and punished on wholly valid premises; and I find it indeed difficult to agree with the approach adopted by the Labour Court and the conclusions drawn by it. I would set aside the impugned judgment, by allowing the appeal of the establishment, although with no order as to costs. Entitlement of the employee to the back benefits does not obviously arise, now that the order of his dismissal from service has been upheld.

14. Before I close, I would like to observe that although I have given a legal verdict, there is nothing to debar the establishment from extending to the poor worker, a very low‑paid erstwhile employee of theirs, a magnanimous treatment, and offering him a job afresh; and I have every hope that on having gone through vicissitudes of life and met misfortune of ouster from employment, he would remain absolutely cautious and wholly obedient and docile in future. H.B.T./827/Lb.P Order accordingly.