1995 PLP 426 (PLC)

ABDUL RAHIM QAZI, J.‑‑‑This petition has been filed challenging the orders passed by the Sindh Labour Appellate Tribunal in Appeal No. KAR‑205 of 1988, whereby the judgment given by Sindh Labour Court No. 11, Karachi had been set aside and the grievance petition of the present petitioner moved under section 25‑A of the Industrial Relations Ordinance, 1969 has been dismissed.

2. Briefly the facts relevant for the purposes of this petition are that the present petitioner, an employee of respondent No. 2 was issued a charge‑sheet on 14‑6‑1987 to the effect that he was found sleeping on that day at 12‑40 p.m. and, therefore, he was liable under the provisions of Standing Order No.15(3)(h) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 hereinafter referred to as the Ordinance. He was also required to show cause within a period of 48 hours. The petitioner submitted his explanation on 16‑6‑1987 where in the plea taken by him that on the said day and time he was sitting by the side of his machine and was not working because the other employees of his line had gone to offer prayers and, therefore, his work was suspended. The employer not finding the explanation satisfactory ordered that enquiry, which was held by Mr. Aijazur Rahim, Enquiry officer. During the enquiry the employer examined their representative Sajjad Hussain Qureshi, Security Officer Muhammad Rasib, Assistant Manager Muhammad Naib and Shop Manager Javed Akhtar, who were all cross‑examined at the instance of the petitioner. The statement of the petitioner was also recorded and thereafter the report was submitted by the Enquiry Officer. Acting upon the said report, the respondent No. 2 issued the orders on 24‑8‑1987 whereby the petitioner was dismissed from. service. Being aggrieved, the petitioner had filed his grievance petition under section 25‑A of the Industrial Relations Ordinance after having given due notice. The Labour Court was pleased to allow the grievance petition which order was challenged in appeal before the Respondent No. 1, who was pleased to set aside the said order and dismissed the grievance petition of the petitioner. Being aggrieved the petitioner has preferred this petition.

3. We have heard Mr. Ali Amjad, the learned counsel for petitioner and Mr. Noor Muhammad, the learned counsel appearing for respondent No. 2, while none is present for respondent No.

1. The main contentions raised by the learned counsel for petitioner is that the petitioner was found sitting by the side of his machine at the given time as the other workers of his line had gone to offer prayers and, therefore, his work stood suspended and this act of the petitioner cannot be treated as one under the definition of misconduct as given in Standing Order No. 15(3)(h) and at the most it can be treated to be an omission and, therefore, not punishable with the dismissal from service. He has placed reliance on the following cases; (i) Pakistan International Airlines v. Junior Labour Court (PLD 1978 SC 239); (ii) Saifee Development Corporation v. Workers Union (1965 PLC 304); (iii) General Manager, Pak American Fertilizer v. Industrial Court, Lahore (1966 PLC 426).

4. As against this Mr. Noor Muhammad the learned counsel for respondent No. 2 has submitted that the conduct and the admission of the petitioner in domestic enquiry would show that he had not only been sitting idle and not working but was actually sleeping; and that this act of the petitioner was a deliberate act and cannot be attributed to mere omission on his part. In such circumstances, the learned counsel has submitted that the element of criminality is involved and the petitioner has been rightly penalised. He has also placed reliance on the case of Pakistan International Airlines v. Junior Labour Court (PLD 1978 SC 239). He has further placed reliance on the cases of Akhtar Alam v. Sindh Labour Appellate Tribunal (1985 PLC 570) and Abdul Rasheed Quraishi v. Industrial Court of West Pakistan and another (1967 PLC 525).

5. We have given anxious consideration to the submissions made by the learned counsel for the parties. It may be observed that the case of the petitioner as given in his explanation to the charge‑sheet is that at the relevant time he was sitting by the side of his machine because his other colleagues had gone for offering prayers and, therefore, his work was suspended. At the very out set we may recall that this plea has not been taken by the petitioner during the domestic enquiry as none of the witnesses examined by the employer have been suggested any question in cross‑examination with regard to this plea. During the enquiry the trend of cross‑examination of the employer's witnesses show that the present petitioner had admitted that the time of 12‑40 p.m. does not fall within the period provided for Lunch break; arid that his case is that he was sitting idle by the side of his machine because his other colleagues had not yet come. It is nowhere in the evidence or in the cross‑examination suggested by the petitioner that the assignment given to him was such that he could not carry out the same in the absence of his other colleagues. From the above discussion, it stands established that during working hours the petitioner was not working. Now whether this act amounts to an omission or deliberate negligence can best be decided in view of the principles laid down by the Division Bench in the case of General Manager, Pak American Fertilizer v. Industrial Court (1966 PLC 426) wherein their Lordships have held as under:‑‑ "The Chairman did not consider the act of sleeping as misconduct as defined in section 13(3)(a). To constitute misconduct it is necessary that the act should be a deliberate and intentional act (so that the mind of the person goes with it) of insubordination or disobedience of a lawful order of a superior. Every workman, especially one who has to watch the working of modern complicated machinery put on night duty knows that he shall not go to sleep, but if he goes to sleep, it may be a deliberate act or an unintentional act. It would be a deliberate act if he goes to sleep intentionally and purposely but an involuntary act, if sleep engulfs him as it comes by habit at night, as it may, in spite of his intention to the contrary." In the above case it has been held in an identical case that where a person on duty deliberately goes to sleep, the said act can be said to be intentional one and not an unintentional act such as the case where he is engulfed by the sleep. In such circumstances, we are of the view, that in the present case the petitioner's act of sleeping or sitting idle by the machine (as put in by the petitioner) can be said to be a deliberate act of non‑working.

6. Now the question as to whether the penalty inflicted upon the petitioner is a proper penalty as required under law or not. The contention of Mr. Ali Amjad, Advocate is that this is an act of omission as defined in Standing Order No. 15(1) (ii) (d) which reads "inefficient, dilatory, careless or wasteful working" and not clause (h) of subsection (3) of Standing Order No.15 which reads " riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline." A plain reading of the above two provisions will show that the conduct of the petitioner as discussed above would certainly fall within "subversive of discipline" and disorderly behaviour".

7. In view of the above discussion, we find no force in the present petition, which is accordingly dismissed. However, the parties are left to bear their own costs. H.B.T./M‑2065/K??????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.