1993 PLP 861 (PLC(CS))

Muhammad Humayoon for Appellants. Mirza Muhammad Kazim for Respondent Date of hearing: 23rd November, 1987. This is an appeal filed by the appellants, Messrs. General Tyre & Rubber Company of Pakistan Limited, Karachi, against an impugned order, dated 26‑1‑1987, passed by the Sindh Labour Court No. IV, Karachi, who had allowed the grievance petition of the respondent by reinstating him in service, but, with the direction to stop the annual increment of the respondent for one year and it also to be entered into the Service Record of the respondent to make improvement.

2. Briefly stated the facts of the case are that the respondent claimed to be the permanent employee of the appellant‑establishment and his work was to operate machine as Tyre Builder. As per claim the respondent was falsely involved in a complaint alleging therein that on 29‑5‑1986, he left the machine where he was deputed by Foreman Mr. Jawad Akhtar and thus was found missing at 6‑05 hours and for this act of the respondent he received a charge- sheet containing the allegation that the respondent made no compliance with the standing instructions to work till the end of shift on 29‑5‑1986, but, left the duty 25 minutes before the end of the shift. Further, it was claimed by the respondent, that as, one Pervez Akhtar, Foreman was annoyed with him and he was also biased with him, therefore, he was victimized as against the facts that during the month of Holy Ramazan the appellant management had itself allowed the workers on duty in `B' Shift to offer `Taraveeh Prayers' during working hours, so, he left the machine and went to offer the prayer. The respondent claimed that despite the fact that he had submitted a satisfactory reply to the charge‑sheet, an illegal, improper and concocted enquiry was conducted against him in which he was not afforded full opportunity to defend, resulting in his dismissal from service. It was further claimed that neither the second show‑cause notice nor the copies of the enquiry proceedings were supplied to the respondent. Thereafter, he filed his grievance petition under section 25‑A, I.R.O., 1969.

3. The appellant establishment resisted the petition of the respondent by' stating that though the management had allowed the workers on duty in `B' shift to offer `Taraveeh prayer' in the month of Ramazan, but, the respondent had stopped working at 6‑05 hours on 29‑5‑1986, and had left the machine without permission, therefore, a proper enquiry was conducted against him on the charge of insubordination and misconduct resulting in his dismissal from service. It was denied by the appellant‑establishment that there was any annoyance between the respondent and one Pervez Akhtar, Foreman. The appellant‑establishment claimed that the respondent was duty bound to work till the closing of the `B' shift i.e. at 6‑30 a.m. but, he left the machine at 6‑05 a.m. and in this way, he did not work for a considerable period of 25 minutes, thus, causing production losses to the employer. The appellant‑establishment claimed that the dismissal of the respondent from his service was proper and in accordance with the legal requirements, hence, he was not entitled to maintain his petition which was liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. Muhammad Humayoon, the learned Advocate for the appellant‑establishment at length and have also gone through the written arguments submitted by Mr. Muhammad Humayoon, the learned Advocate for the appellant‑management and Mr. M.M. Kazim, the learned Advocate for the respondent. I have also carefully perused the record and proceedings of the case. However, at the very outset, I would observe here that the present case is based only on an issue of timings of the duties to be performed by the respondent. The case of the appellant‑establishment is that the respondent had left his job 25 minutes before the scheduled time of his shift duty at 6‑05 hours, instead of 6‑30 hours. While, the case of the respondent was that he did work up to 6‑31 hours. Now, it is not known how the respondent had taken a plea that the Foreman used to be annoyed with him for the reason of offering "Taraveeh Prayer". The present case is concerned to the morning time. While, the respondent deposed about the night time because in the Holy month of Ramazan, `Taraveeh Prayers' are always offered in the night in the Isha Prayers. Thus, the respondent has attempted to twist the facts of his misconduct and to conceal his usual practice to stop the machine before the scheduled and prescribed closing time of his `shift duty' intentionally to put the employer into financial lossess and this act on the part of the respondent is a gross‑misconduct. The version of the appellant establishment is not only fully established from the corroborative evidence, brought on record by them, but also from the attitude adopted by the respondent during his evidence which is itself contrary, false irrelevant and exploitary of nature, as well as also containing a number of admissions about his misconduct. Hence, this type of evidence cannot be taken into consideration. The defence of the respondent is further falsified from the fact that he had taken a plea that the enquiry was neither proper and impartial nor he was afforded full opportunity to defend himself while, the facts are that it is an admitted position, not only from the proceedings on record, but, also from the impugned order itself, that the respondent had fully and properly participated in the enquiry and he never complained against it. The evidence of the witnesses of the respondent namely, Zafar Ali, is also hereby false and tutored. Hence, it also cannot be relied upon, from the perusal of the impugned order, I have also come to the conclusion that the learned Labour Court had himself repelled all contentions of the respondent. Under these circumstances, it can neither be a benevolent despot not, it can sit in appeal over the quantum of punishment, awarded by the appellant‑establishment to the respondent. In support of his arguments, Mr. Muhammad Humayoon, the learned Advocate for the appellant establishment has very rightly referred to me to the authority reported in 1980 PLC (C.S.) at page 984, wherein their Lordships of the Supreme Court of Pakistan have held, as under:‑‑ "This being so that first Junior Labour Court could not substitute a punishment which is not prescribed under the garb of the exercise of that power. Further, it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of the statute and if the employer chooses to award dismissal, the first Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment." This authority of the Supreme Court has also been quoted by my learned predecessor in a case, reported in 1982 PLC 798 at page 800. 1 would also hold that while passing the impugned order, the learned Labour Court was not correct in taking a lenient view and converting the punishment of dismissal of the respondent from service into stoppage of his annual increment for one year, after his reinstatement in service. Mr. Muhammad Humayoon, the learned Advocate for the appellant has also contended that from the record, it is proved beyond any doubt that the action taken against the respondent was not connected with any industrial dispute or the respondent was legally entitled to be supplied with a copy of the enquiry proceedings or the service of the second show‑cause notice. I see much force in these arguments of Mr. Muhammad Humayoon, the learned Advocate for the appellant‑establishment.

6. On the other hand, Mr. M.M. Kazim, the learned Advocate for the respondent has not only fully supported the impugned order, but, in support of his contention that the learned Labour Court has powers to take a lenient view by curtailing the quantum of punishment, awarded to him by the appellant establishment has placed his reliance on a case reported in PLD 1978 SC 239 at page

241. This authority was also followed by this Tribunal. However, in view of the facts and circumstances of the present case, this authority is distinguishable and not applicable. In reported case of P.I.A. there is nothing on record to show any prescribed duty hours of an Airhostess which were alleged to have been violated by her. In the present case, the admitted position was that the prescribed duty hours of the shift duty of the respondent was 6‑30 hours. The respondent has himself admitted that he left the machine at 6‑00 hours and not at 6‑05 hours, as alleged by the management, instead of 6‑30 hours, and that in any case, the machine remained idle causing production loss to the employer. Thus, Mr. M.M. Kazim the learned Advocate for the respondent has no legs to stand in support of his pleading.

7. For the reasons stated by me above, I would set aside the impugned order and allow the present appeal. The result would be that the grievance petition under section 25‑A, I.R.O., 1969 of the respondent is hereby dismissed. A.E./1148/Lb.S Appeal allowed,