1981 PLP 785 (PLC(CS))

Date of hearing : 4th September, 1980. The appellant, who was employed as a worker in the Ring Spinning Department of the respondent‑Mills, was issued 2 charge‑sheets by the Management. The first charge‑sheet, which is dated 20th July, 1978, charged him with refusing to receive an order transferring him from Shift No. 1 to Shift No. 2 and further with refusing to work and inci ting other workers of the Ring Spinning Department to resort to a strike. The second charge‑sheet, which is dated 30th August, 1978, contained the accusation that the appellant was absent from his duties without leave for a period exceeding 10 days, commencing from 17th August, 1978. 2 sepa rate and independent enquiries in respect of the 2 charge‑sheets were held by 2 different Enquiry Officers. Both the Enquiry Officers, on the basis of the evidence recorded by them, came to the conclusion that the respective charges against the appellant had been duly established. In view of these reports from the Enquiry Officers the appellant was dis missed from service with effect from 24th October, 1978. The appellant challenged the dismissal orders by way of grievance petition made before the learned Labour Court, which has recalled the various contentions rais ed by the appellant and dismissed his grievance petition, holding that there was sufficient evidence to establish that the appellant had not only refused delivery of his transfer orders but also incited the workers to go on strike on 19th July, 1978. In respect of the second charge‑sheet, which related to the appellant's absence from duties without leave with effect from 17th August, 1978, the learned Labour Court, while holding that his absence without leave had been duly proved, exonerated the appel lant of this charge on the ground that as the appellant had been placed under suspension, he appears to have acted in the reasonable and bona fide belief that he was not required to attend to his duties. Aggrieved by the findings of the learned Labour Court in respect of the first charge-sheet against him, the appellant has come up in appeal to this Tribunal. No cross appeal has been filed by the respondent‑Company in respect of the findings of the learned Labour Court of the second charge‑sheet.

2. The sole ground on which Mr. Shafiq Qureshi, the learned counsel for the appellant, assailed the impugned decision of the learned Labour Court was that there is no material on record in support of the first charge‑sheet against the appellant and that the finding of the learned Labour Court thereon is not well founded. Elaborating his arguments, it was contended by Mr. Shafiq Qureshi that in the first place it has not been established that the transfer order was served upon the appellant. In support of his contention, Mr. Shafiq Qureshi referred me to the transfer order which is at page 109 of the learned Labour Court's record. Mr. Shafiq Qureshi wanted me to infer from the fact that the transfer order admittedly does not bear the signature of the appellant that neither the appellant had refused to take delivery of the said order nor did he refuse to obey the same. I find no substance in this conten tion. The very fact that the transfer order does not bear the signature of the appellant is pointer towards the fact that be had not taken delivery of the said order for if he had taken delivery of the order, ordinarily he should have appended his signature on the order in token of the delivery of the order to him. There is, however, much stronger evidence to establish that the appellant had refused to take delivery of the transfer order. It was stated before the learned Labour Court by witness Hafiz Saadatullah, the Factory Manager of the respondent company, that on 19th July, 1978, at about I1‑00 p. m., the appellant was served with the transfer order shift ing him from Shift No. 1 to Shift No, 2 through Mr. Tariq and in the presence of Waris Khan, Guard, but the appellant refused to receive the same. The witness had not been cross‑examined on this point. The appellant himself, in his explanation to the charge‑sheet, dated 15th August, 1978, has explicitly admitted that he had refused to receive the transfer order, though he has attempted to justify the refusal. This letter bears the signature of the appellant and a copy of it has been for warded by the appellant to the Martial Law Administrator. The appellant' s explanation thus concedes the position that he had refused to receive the transfer order.

3. It was next contended by Mr. Shafiq Qureshi that the appellant cannot be said to have stopped working since he had been marked pre sent for 19th July, 1978 and was required to work in the second shift which commenced on 20th July, 1978 at 7‑00 a. m. An examination of the first charge‑sheet, however, makes it clear that the accusation against the appellant was not that he had refused to work on 19th July, 1978 but that he declined to work in the second shift to which he had been transferred. There is evidence to show that not only the appellant had refused to take delivery of the transfer order but had also clearly expressed his intention of hot working in the second shift. This intention is further made mani fest from 2 independent circumstances. The first is the appellant's explanation; dated 25th July, 1978. In this explanation, the appellant has tendered apology for his actions of 19th July, 1978, which had been specified in the charge‑sheet, dated 20th July, 1978, and has expressed regrets therefore. His explanation clearly indicates that not only the appellant has not controverted any of the accusations made in the charge -sheet, including the refusal to work, but has in fact conceded his fault. The second circumstance from which it can be inferred that the appellant was not prepare to work in the second shift is the fact that after receipt of the order transferring him to the 2nd shift, be incited the workers to go pit strike.

4. Mr. Shafiq Qureshi sought to argue that there is no tangible evi dence to show that in fact any strike took place in the Ring Department of the respondent‑Mills and that further it has been admitted by the Enquiry Officer that at the relevant time the appellant was not inside the premises of the Ring Department and consequently there could be no question of his inciting the workers of that department to go on strike. This conten tion overlooks the fact that the accusation against the appellant is not that he himself went to the fling Department to either prevent the workers from working or to incite them to go on strike but that he incited the workers of that Department to go on strike. The evidence tendered at the domestic enquiry establishes that when the transfer order was sought to be delivered to the appellant at the main gates of the mills, the appel lant not only refused to take delivery of the said order but instructed his companion, Shamroze, to call of the workers of the Ring Department and ask them not to work. In consequence of the incitement of the appellant, there was a strike for about one hour in the Ring Department. The appellant, in his explanation dated 25th July, 1978, has admitted the in cident and has tendered unqualified apology therefore. This explanation, as already indicated, admittedly bears the signature of the appellant. Additionally, evidence was given in the domestic enquiry by Mohammad Tariq of the Time Office, guard Waris Khan, jobber Mohammad Yousuf, Shift Superviser Amir Ali and others to the effect that a strike had taken place in the Ring Department on the incitement by the appellant. It was contended by Mr. Shafiq Qureshi that even if it be conceded that the appellant had asked Shamroze to incite the workers to stop work, action should have been taken against Shamroze, but this was not done. From this fact, he wanted me to infer that the appellant was victimized on account of his trade union activities. The reason for not taking action against Shamroze has been explained by the Factory Manager, who has testified that the said Shamroze had resigned. As such, the Management apparently did not consider it expedient to take further action against him.

5. It was next contended by Mr. Shafiq Qureshi that the original record of the enquiry proceedings has not been produced before the learn ed Labour Court, but substituted record was produced. I regret that I find no substance in this contention. The statements of the main wit nesses recorded in the enquiry bear the signature of the appellant himself, thereby indicating that the statements were recorded in his presence. No doubt, the proceedings on or after 4th September, 1978 do not bear his signature, but this was due to the fact, as has been explained by the Enquiry Officer in his report and also in the enquiry proceedings, that the appellant walked out froth the enquiry and, therefore, the enquiry was conducted ex parte.

6. It was also contended by Mr. Shafiq Qureshi that the appellant was not allowed to be assisted by a co‑worker and consequently the enquiry proceedings are invalid. The learned counsel, however, was unable to point out to any application or other piece of evidence from which it could be inferred that the appellant had demanded to be assisted at the enquiry by a co‑worker and his request was turned down. All he was able to say was that such a complaint was made in the grievance notice. This grievance notice was sent to the respondent mills almost 2 months after the dismissal of the appellant and as appears from the address given on the notice, to have been drafted by a Lawyer who has raised numerous legal objections in the notice. On the other hand, the appellant, in his reply to the Second Show Cause Notice, dated 5th October, 1978, has not raised any such plea that he was not allowed to be assisted by a co‑worker. This shows that the plea raised is an after thought and is without substance.

7. It was finally contended by Mr. Shafiq Qureshi that the appel lant was not furnished with copies of the statements of witnesses and reports of the Enquiry Officer. It appears from the letter, dated 4th October, 1978, that copies of the statements and the enquiry report were sought to be personally delivered to the appellant, but since he refused to take delivery of the same, they were sent to him, with the letter, dated 5th October, 1978, by registered post, A/D. The documents were sent in a cover correctly addressed to the appellant and consequently there is a presumption that the same must have reached the appellant in due course of postal business.

8. The upshot of the above discussion is that I find that the misconduct of the appellant as detailed in the first charge‑sheet, dated 20th July, 1978, has been duly established, I accordingly concur in the decision of the learned Labour Court and dismiss the appeal. Appeal dismissed.