1982 PLP 691 (PLC)

Fitter, Card No. 540, Wires Maintenance Section, Subject :‑Charge Sheet : On 28th September, 1974 morning when Mr: S. M. Farooqi Manager Engineering Services with the assistance of Messrs Hamid Ali Khan, Masood and Abdul Hakim was taking height measure ments of the cranes at old plot of the factory for the purposes of ascertaining it for the payment of height allowance, you interfered with the checking operation in order to pressurise (leaving your place of work at wires Maintenance Section at SSW Plot) the Manager Engineering Services to accept your choice of heights in spite of his persuasion not to do so. You also became rude with him and physically tried to snatch the papers wherein the heights measurements were recorded. The Manager Engineering Services did not yield to your physical threat. These acts on your part amount to "Wilful insubordination to a lawful and reasonable order of a superior, riotous and disorderly behaviour during working hours at the establishment, and an act subversive of discipline." This constitutes misconduct as per Standing Order No. 15 (3) (a) and (h) of W.P.I. & C.E. (S. Os.) Ordinance 1968. You are therefore required to submit your written explanation within 2 days of the receipt of this Charge‑Sheet as to why severe disciplinary action should not be taken against you. for METROPOLITAN STEEL CORPORATION LIMITED Sd/‑ x x x S. A. Nehal MANAGER (FACTORY ADMINISTRATION)

12. The above charge‑sheet would reveal that the complainant com mitted three acts of misconduct:‑ (i) He left his place of work; (ii) Interfered with the checking operation in order to pressurise Mr. Farooqui to accept the complainant's choice of heights; and (iii) He became rude with him and physically, tried to snatch the papers wherein the heights of the measurements were recorded.

13. Mr. Farooqui in his examination‑in‑chief before the enquiry officer made the following statement:‑ In reply to a question by Khuda Bux that allegations in the charge sheet are different from his statement, Mr. Farooqui replied that the decision depends on his statement and the enquiries made by the enquiry officer. Mr. Farooqui further admitted that be was present in the meeting in which Khuda Bux gave a letter (Exhibit P. W. 1/7) to the Factory Manager. This letter which was in relation to different heights contained the signatures of Assistant Engineer Zaidi and Abdul Hakeem Foreman. This letter was passed on by the Factory Manager to Mr. Farooqui, who also admitted that the Factory Manager had directed him to return Exhibit P.W. 117 to Khuda Bux. Mr. Farooqui stated that he took the letter produced by Khuda Bux and went to check the heights. Khuda Bux put another question which is reproduced below:‑ Mr. Farooqui gave the following reply:‑ In reply to another question as to how Khuda Bux interfered when be had already measured the cranes, Mr. Farooqui replied as under:‑

13. Khuda Bux complainant put another question as under:- The witness gave the following reply:- In connection with snatching of papers Khuda Bux put the following question:‑ The witness gave the following answer:‑

14. From the above statement of Mr. Farooqui, which was recorded by the enquiry officer it is quite clear that Khuda Bux did not put any pressure on Mr. Farooqui. He merely asked Mr. Farooqui to take measure ment of heights from a particular spot and not from where Mr. Farooqui was measuring the heights Therefore it could not be established that Khuda Bux pressurised Mr. Farooqui or interfered with his work as Mr. Farooqui took the measurements of his own choice. The charge that Khuda Bux became rude to Mr. Farooqui also is not borne out from his statement. In his cross‑examination‑in‑chief he has stated:- It is quite clear from this statement that he did not utter a single word against Mr. Farooqui himself. He said something against the management but Mr. Farooqi did not quote the exact words uttered by Khuda Bux,

15. The only charge left to be rebutted is that Khuda Bux tried to snatch the papers from Mr. Farooqi wherein height measurements were recorded. It has come on record from the cross‑examination of Mr, Farooqui by Khuda Bux that he had given a statement of measurements which was signed by Assistant Engineer Mr. Zaidi and Foreman Mr: Hakeem. This paper was handed over to Respondent Atiqullah who gave it to Mr. Farooqui. Mr. Farooqui admitted in his cross‑examination that it was decided that Mr. Farooqui after completing the measurements would return it to Khuda Bux. It is admitted by Mr. Farooqui in cross -examination that after the measurements were taken Khuda Bux asked for his own document (PW 1/7) from Mr. Farooqui as it was already agreed that it would be given back by Mr. Farooqui to Khuda Bux. Mr Farooqui did not give this paper back to Khuda Bux and since it was a very important document from the point of view of workers to show that the workers were working at the height of more than 30 feet Khuda Bux tried to take back the paper from Mr. Farooqui, and since be refused to hand it over to him Khuda Bux tried to snatch it from Mr. Farooqui. As admitted by Mr. Farooqui himself it was decided that Mr. Farooqui would return the document to Khuda Bux and in all fairness he should have returned it to him. An effort to snatch the document in these circumstances would not amount to riotous or disorderly behaviour.) Khuda Bux did not try to bodily harm Mr. Farooqui. He had no evi1~ designs against Mr. Farooqi. The above act of Khuda Bux cannot be called wilful insubordination or disobedience of any reasonable order of his superior and as such does not amount to misconduct under clause (a) or (h) of para. (3) of Standing Order 15 of W. P. Standing Orders Ordinance, 1968. If at all the behaviour of the accused could be considered as improper behaviour, which is defined as an act or omission under Standing Order 15 (ii) (b) of the said Ordinance, which does not entail a punishment of dismissal. The presence of Khuda Bux at the place where the measurements were being taken is quite natural. His absence from his place of duty at the most could be termed‑ as "malingering" which is an act defined under Standing Order 15 (1)(ii) (e) of the said Ordinance. I therefore hold that a case of his dismissal is not made out from the statement of Mr. Farooqui on whose complaint he was charge‑sheeted ‑on 1st October, 1974. 1 need not discuss the evidence of other prosecution witnesses against Khuda Bux in the enquiry .as their statements contradict the statement of Mr. Farooqui, Moreover, Mr. Farooqi was the person on whose complaint, Khuda Bux was charge‑sheeted. Having held that the services of the com plainant Khuda Bux were illegally dismissed I have no doubt in my, mind that this dismissal was by way of victimization for his trade) union activities as there is overwhelming evidence on record to show that he was championing the cause of the workers in his capacity as' General Secretary of the Union.

16. I therefore hold that offence of unfair labour practice as defined under section 15 (1) (d) of the IRO, 1969, punishable under section 53 (I‑A) of the said Ordinance is made out against the respon dents No. 2 . Atiqullah, Factory Manager, Respondent No. 3 K.M.A. Chaudhry, Admn, & Personnel Manager and S. A. Nehal, Respondent No. 4 Manager Factory Administration. Here, it may be stated that the complainant had impleaded Qamarul Islam who was the Managing Director of the Corporation as Respondent No.

1. The learned Labour Court to whom the case was assigned for disposal after preliminary investigation had not issued process against Respondent No. 1, and as such when the case proceeded in the Commission, only Respondents Nos. 2, 3 and 4 were summoned to stand trial before me. The record of the enquiry proceedings shows that Respondent No. 2 recommended the dismissal of the complainant but final orders of dismissal were passed by Managing Director Qamarul. Islam who is not standing trial before me. Respondent No. 4, S. A. Nehal issued the charge‑sheet against the complainant. Second Show‑Cause Notice was also signed by a Respondent No.

4. Letter of dismissal was signed by K.M.A. Chaudhry Respondent No.

3. In this way the Respondents are, in one, way or other involved in the dismissal of the complainant and they acted on behalf o the main employer Qamarul Islam. It has been laid down under section 15 of the Ordinance that any person who acts on behalf of the employer is also guilty of the offence. More ever the answering respondents are also covered under the definition of employers. However, since the dismissal orders were passed by the Managing Director and the answering respondents namely Atiqullah, K. M. A. Chaudhry and S. A. Nehal acted under his instruction, I take a lenient view and convict each res pondent namely, M. Atiqullah, Factory Manager, K.M.A. Choudhry, Ex Adm. & Personnel Manager, S. A. Nehal, Manager, Factory Administra tion of Metropolitan Steel Corporation Limited, Landhi, Karachi, to under go a sentence till rising of the Court. I further convict each of them to pay a fine of rupees four thousand each and in default of the payment of fine to undergo further sentence of three months' imprisonment. I further direct that the complainant may be reinstated in service from the date he was dismissed with the benefit of continuity of service. It has come in evidence that the complainant is at present employed in Pakistan Steel Mills Corporation. The complainant was called and he informs that he had joined the Pakistan Steel Corporation on 9th October, 1975. He, therefore, remained unemployed for about 10 months. 1, therefore, direct that complainant should be paid full wages for 10 months only. It may also be stated, that the complainant has filed the case on 10th April, 1975, but since a writ petition was filed by the respondents it took about 6 years for the disposal of the case and as such the complainant has been pursuing his case for the last about 7 years. t therefore further direct that another sum of rupees five thousand may be paid to the complainant as compensation by the respondents. I further direct that a sum of rupees two thousand may be paid to the complainant out of the sentence of fine inflicted upon respondents. Order accordingly.