1982 PLP 241 (PLC)

Ashraf Khan for Respondents. Date of hearing: 1st April, 1986. The instant appeal is filed by Messrs Searle (Pakistan) Limited, Karachi, against an order passed by the Sind Labour Court No. III, Karachi, on 22‑1‑1984.

2. The facts are that the appellant Company is a pharmaceutical company engaged in the manufacture and sale of life saving drugs having its Factory at the S.I.T.E. area, Karachi. On 13‑2‑1983, at about 10‑30 a.m.; the respondents Nos.2 and 3 were given 5000 washed bottles for drying the said bottles in the drier of Tablet Section. When the bottles were brought back from the drier by the respondents Nos. 2 and 3, the bottles were found contaminated with Kerosine Oil which was sprinkled in the trays containing the bottles. Therefore, on 14‑2‑1983, the respondents Nos. 2 and 3 were issued a charge‑sheet on the charge that they willfully damaged 5000 bottles of packing department by conteminating the trays containing the washed and dried bottles with kerosine oil and they were asked to explain the charge Both the respondents explained the charges, but, however, the domestic enquiry was made whereby they both were dismissed. The stand taken by the appellants is that a proper enquiry was conducted and the two offenders, namely, the two respondents were found guilty and accordingly they were dismissed. There was no victimization.

3. I have heard the learned counsels, Mr. Rifat Usmani on behalf of the appellants and Mr. Ashraf Khan for the respondents. The further evidence of witness Hameedullah Khan was also recorded.

4. I have gone through the record and the impugned order. In the appeal, the arguments of Mr. Rifat Usmani are two‑fold. The first argument refers to the sprinkling of the Kerosine Oil by the two respondents in the dried bottles trays; and secondly, it has caused wilful damage by the respondents under Standing Order 15(3)(c) of the Standing Orders Ordinance, 1968.

5. I would proceed to answer the first point, namely, the sprinkle of Kerosine Oil by the two respondents. This incident, according to the record and evidence, is not seen by any person. There is none in the evidence who says that he has seen being sprinkled in the trays of the dried bottles. Even, Mr. Hameedullah whose evidence was recorded by me does not say that any one is an eye‑witness to this fact. Mr. Hameedullah Khan says that the place where the bottles were being dried was a forbidden place and none was allowed to tres‑pass the same. Upto 4 O'clock, none was authorized excepting these two respondents to enter in this forbidden area. It was a restricted place. At least upto 4 O'clock none went in the restrict area but after 4 O'clock, any body could have gone. The Enquiry Officer in the concluding paragraph of his report has drawn a presumption that the respondents must have contaminated the bottles because they were the persons who had placed the bottles in the drier and had taken out the same from the drier and brought the same to the Packing Section. He had also referred to the statement of Miss Rukhsana in which she had said that the respondents must have mixed Kerosine Oil in order to pressurize the management to allow them over‑time as they had complained several times to the management to the union regarding more overtime work. Thus, on evidence, I find that there is a mere presumption against the respondents. Even Miss Rukhsana raises a presumption that it was done due to perhaps pressurize the management. The presumption could be drawn both ways that because the respondents had been complaining repeatedly to the management as well as to the union. The management very much wanted to dispense with their services or as Miss Rukhsana said the respondents indulged in pressure tactics by contaminating the bottles. But, since there is no evidence that the respondents sprinkled Kerosine Oil, no presumption can be drawn against him. Any presumption would be jeopardised their enquiry or trial. Mr. Hameedullah Khan in his statement has said that the two respondents were members of the union.

6. Except whatever has been discussed above, there is no force in other allegations made by the respondents as regards the conduct of the enquiry. The respondents were given full chance to cross‑examine the witnesses through their co‑worker, Muhammad Ashraf and were also allowed to lead evidence. There was a joint application made by all the 3 workers to the effect that Muhammad Ashraf would be their co‑worker to assist them in the enquiry proceedings. There is no illegality or irregularity committed in this regard.

7. Reverting to the second part of the argument that the charge of misconduct as defined under Standing Order 15(3) (c) wilful damage or loss of employer's goods or property' is got to be established. The word 'wilful' implies a knowledge or indulgence. Mere damage caused due to carelessness or negligence. Mere damage caused due to carelessness or negligence does not become 'wilful' so as to attract the charge of misconduct. The word 'wilful' as defined in Blacks Law Dictionary is "an ac; done with stubborn purpose but not with malice; an act clone intentionally, knowingly and purposely be distice from an act done carelessly, thoughtlessly, heedlessly or inadvertently. In the present case, there is no evidence, at all to show that there was any wilful act done by the accused workers. On the contrary it was said that because they did not report to Miss Rukhsana or any other officer that the bottles were smelling of kerosine oil, it was presumed that they themselves had sprinkled kerosine oil on the trays. It is very Strange to believe that not to report to the supervisor about smell of Kerosine oil, there could be presumption of guilt against them. The charge of misconduct under Standing Order 15(3)(c) of Standing Orders Ordinance, 1968, was tot made out against the respondents.

8. These two points were raised in this appeal and I find that these two points are answered accordingly The appeal is, therefore, dismissed with this modification that only 50% (fifty per cent) of the back benefits may be given to the respondents forthwith. The remaining 50% (fifty per cent) "of the amount of back benefits deposited in this Tribunal by the appellants be refunded to the appellants management. M.Y.H./810/Lb Appeal dismissed.