1994 PLP 344 (PLC)

That according to the law the certificate authorizing the use of said Boiler has since ceased to exist, and as such the owners are not entitled to use the said Boiler without issuance/renewal of the Certificate. That even otherwise the owners are committing serious violations of the Boilers Act, 1923, which are hazardous for the life of the workmen employed in the factory in general‑and those on Boiler in particular. You are therefore requested to kindly pay immediate visit to the factory examine the Boilers thoroughly, conduct a thorough on the spot investigation in consultation with the representative of the workmen (CBA) and take legal action against the offenders. Kindly treat this most urgent, in view of gravity of the situation:'

2. On the receipt of this letter the Chief Inspector of Boilers had visited the factory on the 29th of October, 1991. There was also a letter from the Labour Officer of the Government of Sindh dated 4‑11‑1991 to the General Manager of the respondent‑Mill asking for comments in the matter. The General Manager had been told by the Chief Inspector of Boilers namely Yousuf Khoro, that the complaint has been addressed to him by an office bearer of the union and the General Manager by his letter, dated 14th of November, 1991 addressed to the Director of Industries, Government of Sindh had requested to supply him with a copy of that complaint and statements if recorded by Chief Inspector alongwith the finding thereon so that he could ascertain the facts of the case. The record shows that the same was despatched by the Chief Inspector of Boilers to the General Manager of the Mill by his letter, dated 24th November, 1991. It was thereupon that a charge‑sheet was issued to the petitioner which reads as follows:‑‑ "It has been reported against you that on 12‑10‑1991 you sent an application to the Chief Inspector of Boilers, Government of Sindh, at Karachi, making false and baseless allegations against the mills management with an ulterior motive to bring it under dispute and cause losses to them. While addressing such letter, you also projected yourself as General Secretary of the CBA Union (while you were not so). The above act tantamounts to severe misconduct on your part. You are therefore charge‑sheeted to show cause within 48 hours of receipt of this charge‑sheet as to why severe disciplinary action may not be taken against you. If you fail to submit reply to the charge‑sheet, it will be presumed that you have nothing to say in your defence and the management will be fully justified to take appropriate action against you according to law. Please note. (Sd.) For Faran Sugar Mills Limited General Manager:"

3. A reply was submitted and found to be unsatisfactory and thereafter an Enquiry Letter was sent. In the enquiry a number of persons including Ali Akber and Muhammad Umer, the two persons who had sustained injuries come to be examined. There was also the evidence of the Chief Medical Officer and the complainant. The petitioner also had examined his own witness namely, Ghulam Qadir, Nazeer Ahmad, and Abdul Ghafoor. On the submissions of the enquiry report according to which the petitioner was found to be guilty of misconduct was dismissed from service.

4. The petitioner after sending the grievance notice had filed the petition in the Labour Court.

5. The petition came to be resisted by the respondent also on the ground that the p6titioner was not a workman.

6. The petitioner was his own witness while Mansoor Alam the General Manager and Muhammad Saleh, the Personnel Officer who had conducted the enquiry appeared on behalf of the respondent.

7. The Labour Court found that the petitioner was not a workman and also that the enquiry had been fair. It therefore, dismissed the petition culminating in this appeal.

8. Dr. Raees M. Mushtaq conceded that the petitioner was a workman. His approach was in the best traditions of the profession. Therefore all that we have got to see is whether the dismissal in the circumstances of the case was justified.

9. It appears that issues had been joined before the Labour Court as to whether the appellant was or was not the General Secretary of the C.BA. when the alleged incident had taken place. It is an admitted position that he was an active member of the union and the fact that he was an office‑bearer is not under dispute. The fact of the matter is that the information of the accident could be given to the authorities by any person. So, nothing will turn on that either.

10. In the accident injuries are alleged to have been received by Muhammad Umer and Ali Akber, both of them were examined at .the domestic enquiry and all that they had stated was that while tightening the valve of the Turbine Engine Steam and some dust particles had gushed out, as a result of which they had received some injuries. They had stated that they had received some treatment and had reported for duty after taking leave, which in the case of Muhammad Umer was one week and that of Ali Akber two. The Medical Officer had deposed about the nature of the injuries, and admitted that they had been referred to the Hyderabad where they had received some attention. However, there is no support to the allegation that they had received serious injuries or that they had been disabled or grievously injured. This had been spoken of also by the 3 witnesses produced by the appellant before the enquiry. There is also nothing to indicate that there was any trouble in the Boiler or any section thereof or that the same had been neglected by the management. In the face of all this the contents of the letter were maliciously accusatory. The fact that copies thereof had been also sent to officers of the police and the Administrative Department also shows that the appellant wanted to blackmail the respondents. According to section 18 of the Boilers Act "if there is an accident to a boiler or a steam pipe, the owner or person incharge thereof shall within 24 hours of the accident report the same in writing to the Inspector etc. and if he fails to report an accident referred to above he will be punishable with fine".

11. It was held in Opal Laboratories v. Workers' Union 1972 PLC 83 which is a decision of this Tribunal that an act of an employee which may entail criminal prosecution of its employer would amount to misconduct. Reference was made to the case of Pierce v. Foster (1881) 17 QBD 536 in which Lopes, L.J. had made the following observations:‑‑ "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."

12. Even the use of objectionable and derogatory language in letters to the superiors was found to be misconduct being subversive of discipline as well as insubordination. (See Manazirul Haq v. Muslim Commercial Bank Ltd. 1984 PLC 1623).

13. The appellant had participated in the enquiry and not only cross -examined all the witnesses but had also led his defence evidence. The record also shows that the copy of the enquiry report which was demanded had been supplied to him. Even the proceeding was totally serene and free of all tension and nothing smacks of any bias or partiality. I am of the opinion that there is no merit in the appeal. I will therefore maintain the impugned order and dismiss the appeal.