1979P LC 246 (PLP)

4. Aggrieved by the above decision, the petitioner has preferred this revision.

5. From the perusal of the charge‑sheet, I find that the allegations contained in it amounted to wilful insubordination, which is a misconduct as defined in Standing Order 15 (3) (a). The allegations also amounted to disorderly behaviour and for committing acts subversive of discipline, which is a misconduct as defined in Standing Order 15 (3) (b). It is an admitted fact that at the time of the incident no industrial dispute was pending between the parties. In the case, Habib Bank Staff Union, Sahiwal v. Habib Bank, Sahiwal (1978 P L C 521), I have observed :‑‑‑ "The upshot of the above ruling is that the Labour Court has to see whether a prima facie case of misconduct has been made out against the workman concerned, that the said misconduct had no connection with the industrial dispute, which is pending and that it was not a case of victimisation on account of Trade Union activities." In the case, Smith Kline & French (Pakistan) Ltd. v. A. Rasheed Pat and another (P L D 1979 Kar. 212), it was observed :‑‑ "The principles emerging from the above authorities as to the scope and extent of the powers of the Labour Court while granting or refusing permission to punish a workman and the circumstances in which such permission is to be granted or refused appear to be as follows :‑ (i) The Labour Court, while considering the question of granting or refusing permission to punish a workman, acts in a quasi judicial capacity and cannot deal with such question arbitrarily or without principles, and its action is subject to judicial review. (ii) A Labour Court is not to act as a benevolent despot or to clutch at jurisdiction. It is obligatory on its part to act according to the law applicable to the matter in dispute. (iii) It is not the province of a Labour Court to go into the merits of the allegations. Its jurisdiction is only to see if there was a fair enquiry and the employee was given an opportunity to explain the charges against him. (iv) It is for the Management to determine what constitutes major misconduct within its Standing Orders but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith, without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. (v) The scope of an enquiry for granting or refusing permission to punish a workman is limited to‑ (a) whether a prima facie case is made out against the workman ; (b) whether the domestic enquiry on the basis of which it is proposed to punish him was properly conducted, specially whether a proper opportunity was afforded to him of meeting the case against him ; (c) whether the employer is resorting to any unfair labour practice, intimidation or victimisation or otherwise acting with mala fide intention ; (d) whether there has been any contravention of law or principles of natural justice. ' (vi) The Labour Court is not to act as a reviewing Tribunal against the decision of the Management nor does the failure to adduce evidence before it vitiate the domestic enquiry, for perversity or any other reason. (vii) It is not the function of the Labour Court under section 47 of the Industrial Relations Ordinance to hold an enquiry to determine whether the workman had committed ' misconduct. The question whether the workman committed misconduct can only be enquired by the Inquiry Officer. ' (viii) The severity or otherwise of the punishment sought to be imposed upon the workman is ordinarily within the purview of the Management alone and outside the consideration of the Labour Court, but if the severity of the sentence is indicative of male fide intention on the part of the Management, the Labour Court can refuse to accord approval. (ix) Mere participation in an illegal strike, resorted to for pressing a charter of demands relative to the terms and conditions of service of workmen, where such demands form the subject‑matter of an Industrial Dispute which is under adjudication, may not be a sufficient ground for grant of permission to punish the striking workman. (x) Where a written show‑cause notice or charge‑sheet and the result of the domestic enquiry have been furnished to the workman, the non‑supply to him of a copy of the enquiry report, complaint or other document, for the supply whereof he has made no demand, would not vitiate the enquiry."

6. In the instant case, I find that all the three P. Ws. stated before the Enquiry Officer that the respondent had shouted to the Clerks to stop work and thereafter, he went to the desk of Mr. Akram Javed, placed his brief‑case with a bag on his table and told him that it was Zulm (cruelty), There after, all the Clerks had gheraoed the table of Mr. Akram Javed, and insisted that they should not be made to work. It was admitted that the respondent had not abused Mr. Akram Javed, but it was he, who abused himself. Thereafter, all the Clerks left the office. The respondent's witnesses supported him by stating that they were forced to enter the time from 8‑00 p.m. to 8‑00 p.m. as a break, but they refused to do so, because they had not availed this time as break and that the respondent supported their cause and so Mr. Akram Javed lost his temper and hurled abuses at him. Thus, the respondent was forced by others to leave the room. They further added that they did not leave the office till 9‑45 p.m., when they were asked by the Manager to leave the office. Respondent's two witnesses, namely Ghulam Sarwar, who was the President of the Union and Khurshid Zaman, Vice‑President of the Union, were not present at the time of the incident. Ghulam Sarwar was admittedly on casual leave on that day and Khurshid Zaman had admitted that he had finished his work at 7‑30 p.m., therefore, their evidence was based on hearsay and as such was not worthy of credence. Now the only evidence left is that of the respondent himself. Against his evidence, there is evidence of three witnesses, who have fully implicated the respondent. In view of the above, it has been established that prima facie the respondent was guilty of misconduct as alleged in the charge‑sheet and there has been no victimisation. I also find from the perusal of the enquiry proceedings that the enquiry was properly conducted and the respondent was given full opportunity to defend himself. In any case, the respondent had no business to go to the Bank and to interfere with the working. The act of the Management in making the Clerks work over time for more than nine hours on that particular day was permissible under the law, because on that day, the accounts of the Bank had to be balanced. According to section 2 (e) (iv), the West Pakistan Shops and Establishments Ordinance VIII of 1969 is applicable to Banks, and according to the proviso to section 8 of the said Ordinance, if in any day or in any week in which there occurs stock‑taking, making‑up of accounts, settlement or such other business operation, and during such other periods as may be prescribed, an adult employee of an establishment may be required or permitted to work overtime in such establishment for more than nine hours in such day and for more than 48 hours in such week. Further, according to section 9 of the said Ordinance, the overtime wages would be calculated at ,double the ordinary rate of wages payable to an employee.

7. I, accordingly accept the revision, set aside the order of the Labour Court and accord permission to the petitioner as prayed for in the petition under section 47 (2) of Industrial Relations Ordinance, 1969.