2017 PLP 3 (PLC N)

ALI SAIN DINO METLO, MEMBER.

The appellants have challenged judgment, dated 19th May 2015, of the Sindh Labour Court No.04, Karachi, directing them to reinstate the respondent in service with full back benefits with effect from 26th June, 2001.

2. Briefly, the facts are that, on 26th June, 2001, services of the respondent, a supervisor (electrical), were terminated on proof of charge of habitual late attendance. On Appeal, No.1303 of 2001, the Federal Service Tribunal, by its judgment dated 29th April, 2004, directed the appellants to reinstate the respondent in service and conduct de novo proceedings against him by giving him full opportunity to contest the allegation, further directing that the de novo proceeding be completed within four months and the question of back benefits be decided on the basis of outcome of the de novo proceedings.

3. On completion of de novo proceedings, the appellants found that the charge of habitual late attendance was proved against the respondent and consequently, by order dated 17th September, 2004, they disallowed him the back benefits.

4. The respondent challenged the order of denial of back benefits in Appeal No.437 of 2004, in the Federal Service Tribunal, which, in view of the judgment of the Supreme Court in the case of Muhammad Mubeen-us-Salam, reported in PLD 2006 SC 602, abated and the respondent filed Application No.47 of 2006, in the labour court for grant of the back benefits.

5. During the conduct of fresh enquiry (de novo proceedings), the respondent produced certain documents in his defense, which, according to the appellants, were obtained by him unauthorizedly. A separate charge-sheet, dated 13th September, 2004, for illegally obtaining seven documents from the record, was served upon him. His reply, dated 27th September, 2004, that the documents produced by him before the enquiry officer were circulars, instruction and notices about punching of attendance cards of employees and taking prompt action against misconducting employees and not secret documents, was considered not satisfactory. The charge was proved in an enquiry, held by another enquiry officer, and the appellants dismissed the respondent from service on 17th June, 2005.

6. The respondent challenged his dismissal in Appeal No.476 of 2005, in the Federal Service Tribunal which was abated in consequence of the judgment of the Supreme Court in Muhammad Mubeen-us-Salam's case and the respondent filed Application No.46 of 2006, in the labour court for his reinstatement in service with back benefits.

7. According to the respondent, he was a workman performing his duty manually and had not committed any misconduct and the appellants had removed him from service wrongfully.

8. In reply, the appellants did not specifically deny that the respondent was doing his duty manually. However, they contended that, he, being a supervisor, was not a workman and that they had rightly dismissed him from service on proof of charge of misconduct in a fair enquiry. They challenged maintainability of the applications on the grounds that the Industrial Relations Ordinance, 2002, did not apply to their establishment, grievance notice had not been given and Pakistan Essential Services (Maintenance) Act, 1952, had been made applicable to all employments of their corporation.

9. The respondent examined himself; while the appellants examined their Manager Employees Relations, Muhammad Fahim, Senior Manger Engineering-cum-Enquiry Officer, Muhammad Mudakkir and Senior Manager Production-cum-Second Enquiry Officer, Muhammad Latif Zahid. The Labour Court allowed both the applications and reinstated the respondent with full back benefits.

10. As for the charge of habitual late attendance on 20 days in March and 18 days in April, 2001, the respondent, in his reply, dated 22nd May, 2001, to the charge-sheet dated 18th May, 2001, admitted and apologized for that and assured to be careful. According to him, the reason of his late attendance was illness of his mother, who was admitted in a hospital. He prayed for excusing him by making deductions for late coming from his salary.

11. As for the charge of illegally obtaining the seven documents, none of them was secret or private. All were public documents. Five of them contained general instructions regarding punctuality and punching of attendance cards and two contained instructions for reporting the matters of misconduct promptly for taking disciplinary action. The instructions contained in these documents were necessary to be followed by every employee so as to secure punctuality and efficient working of the department. They were relevant to the enquiry, which was being held against the respondent. The Manager Employees Relations and the Senior Manager Production-cum-Second Enquiry Officer of the appellants admitted in their cross-examination that the documents were not confidential and their copies were affixed on notice board. In no way their production in the enquiry amounted to misconduct. The action taken against the respondent for producing the documents in his defense amounts to preventing him from defending the charge in violation of the order of the Federal Service Tribunal, which specifically directed the appellants to afford full opportunity to the respondent to defend the charge.

12. Unlike the Government Servants (Efficiency and Discipline) Rules, 1973, where definition of misconduct, due to use of words `means' and 'includes' is inexhaustive, definition of misconduct in Standing Order 15(3) is exhaustive on the principle of 'expressio unius est exclusio alterius' as it specifies certain acts as misconduct. Production of seven documents, which are public and not secret or private document, does not amount to misconduct under any of the clauses of Standing Order 15(3). Therefore, dismissal of respondent form service on that account is not sustainable in law.

13. The argument that punishment for the misconduct of late attendance was deferred till completion of enquiry of second misconduct, whereafter punishment was awarded together for both misconducts, is an afterthought and not acceptable. The order, dated 17th September, 2004, shows that the respondent's request for giving him time to give reply of second show-cause notice was rejected and order for denying him back benefits was passed because the period of four months given by the Federal Service Tribunal was going to expire on that day. The order does not mention that award of punishment was being deferred. If they wanted to defer order regarding award of punishment, they could defer order regarding back benefits also. It is clear that the appellants, keeping in view the limit of time, decided the entire matter on that day by denying only the back benefits to the respondent and did not defer award of any other punishment for any future day.

14. Learned counsel for the appellants challenged maintainability of the application before the labour court on four grounds. First, that provisions of the Industrial Relations Ordinances/Acts did not apply to the appellants, second, that the respondent, being a supervisor, was not a worker, third, that before filing applications in the labour court, he did not give grievance notice, and fourth, that the Pakistan Essential Services (Maintenance) Act, 1952 having been applied to all employments in the appellant corporation, the respondent could not seek his remedy from the labour court. All the four ground are not sustainable.

15. As regards objection of non-applicability of the Industrial Relations Ordinances/Acts, it may be mentioned that the remedy available to the respondent under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, cannot be denied to him for that reason. In this regard, reference may be made to the cases of Pak Arab Refinery Limited v. Muhammad Rashid (1999 SCMR 373), Security Paper Limited v. Sindh Labour Appellate Tribunal (PLD 1988 SC 180) and Mustehkum Cement v. Abdul Rashid (1998 SCMR 644).

16. As for the objection to the status of the respondent as workman, it may be mentioned that it is the nature of the work and not the designation which decides the status. In paragraph 01 of his applications, the respondent elaborately explained and claimed that, since beginning, he was doing manual and clerical work, which the appellants did not deny specifically and did not say that he was not doing manual or clerical work. In his cross-examination also, the appellants did not specifically challenge his statement that he was doing manual and clerical work. In the cases of Qaisar v. Muhammad Shafaqat Sharif (2012 SCMR 743), Fauji Foundation v. Punjab Labour Appellate Tribunal (2007 SCMR 1346), Samiullah Sharif v. Fauji Oil Terminal (2007 PLC 464 Karachi) and Dost Muhammad Cotton Mills v. Fourth Sindh Labour Court (1979 PLC 367 Karachi), production supervisors, superintendent, and shift incharge were held to be workers.

17. The objection of not giving grievance notice to the appellants before filing applications in the labour court is also not fatal to the proceedings before the labour court. These were the applications filed in consequence of abatement of appeals before the Federal Service Tribunal in the aftermath of Mubeen-us-Salam's case and respondent's departmental appeals, filed before filing appeal in the Federal Service Tribunal, can be treated as grievance notices. For this reference may be made to the cases of Gulbut Khan v. WAPDA (1992 SCMR 1789) and Muhammad Imran v. Utility Stores Corporation (2012 PLC 262).

18. Objection to the maintainability of the applications before the labour court on the ground that provisions of the Pakistan Essential Services (Maintenance) Act, 1952, were applied to all employments of the appellants is also not sustainable. Neither the Federal Government nor the specified authority i.e. the Chairman, National Industrial Relations Commission, have framed rules to regulate the wages and other conditions of service of the persons in the employment of the appellants. The Act and the rules (if any) framed under it will supersede and bar jurisdiction of the labour court only when they contain any contrary provision. For this, reference may be made to the cases of Pakistan Television Corporation v. M. Babar Zaman (1989 SCMR 1549) and Allah Dad v. Punjab Labour, Appellate Tribunal, Lahore (1989 PLC 741 Lahore).

19. As for a just and proper order, the respondent was at fault in coming late on duty and, therefore, he is not entitled to back benefits for the first period i.e. from 26th June, 2001 to 29th April, 2004. As for the second period from 17th June, 2005 to 19th May, 2015, it will not be fair to burden the appellants for back benefits for 11 years during which period the respondent is shown to have been frequently travelling abroad, performing Haj and Umrah with his family. Keeping in view all the facts and circumstances of the case the respondent is awarded 25% of the back benefits for the second period. With these modifications in the judgment of the labour court, the appeal is disposed of accordingly. JK/37/SLT Order accordingly.