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Constitutional Petition No. D‑293 of 1977, decided on 3rd July 1977.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

S. Os. IS(3)(c) 8t 15(l)(ll)(d) read with Industrial Relations Ordi nance (XXIII of 1969), S. 38(3)‑Jurisdiction of Appellate Tribunal Careless or wasteful working‑Contents of charge‑sheet disclosing only a single act of carelessness on respondent's part and not a number of such acts‑Single act of omission, held, could not be treated as wilful damage to. or loss to, employer's goods or property under S. O. 15(3)(c) but amounts to carelessness or wasteful working under S. O. 15(1)(ii)(d)‑Charge‑sheet also not mentioning whether act of omission either habitual or wilful‑Appellate Tribunal's finding of respondent being guilty of carelessness based on contents of charge sheet‑‑A finding of fact and competently arrived at‑Appeal being merely a continuation of original proceedings, Tribunal competent to set aside, vary, or modify award given by Enquiry Officer‑A] legation in charge‑sheet, held further, called for a minor penalty only and not major punishment of dismissal.‑[.Appeal (civil)‑Jurisdiction].

Shaikh Mir Mohammed for Petitioner.

ABDUL HAFEEZ MEMON, J.‑This petition is filed against the decision/ order passed by the learned Appellate Tribunal, Karachi, on 14‑3‑1977 in an appeal filed by respondent No. 2 against the order of Labour Court, Karachi who had dismissed the application of the respondent filed under section 25‑A of Industrial Relation Ordinance, 1969 and maintained his dismissal. The learned Appellate Tribunal allowed the appeal of respondent No. 2 and set aside the order passed by the Labour Court as well as the dismissal order passed by the petitioners.

2. The brief facts of the case are that the petitioners are an Industrial Establishment in Site Area, Karachi, whereas the respondent No. 2 was their employee in the Weaving Department of their Factory. On 10‑10‑1975 respondent No. 2 was issued a show‑cause notice in the following terms

"You are hereby charge‑sheeted for Weaving 'Jala' in full length cloth piece (than). run on loom No. 433 on 1‑10‑75. This resulted in full badly damaged cloth piece (than). It clearly shows your gross negli gence and due to this fact, the Company had to suffer loss. If you had desired, you could de‑weave this 'Jala'.

Therefore, please submit your explanation within 24 hours as to why action should not be taken against you:'

After usual enquiry, in which the respondent regularly participated he was found guilty and after the second show‑cause notice he was dismissed from service on 24‑10‑75. The respondent thereafter served a grievance notice on the petitioner on 26‑10‑75 and filed application under section 25‑A of the I. R. O. before the Labour Court, Karachi on 8‑11‑75. The application was resisted by the petitioners and they denied all the allegations of the respondent. The learned Presiding Officer of the Labour Court after usual proceedings and evidence by way of affidavits, dismissed the application of the respondent on 16‑10‑1976. Being aggrieved, the respondent went in appeal before the Labour Appellate Tribunal who set aside the order of the Labour Court on the ground that the charge levelled against the respondent did not justify his dismissal as one act of carelessness ( h y) would not amount to misconduct calling for major penalty under Standing Order 15 (3) (c) but it would be an omission amounting to careless or wasteful working covered by Standing Order 15 (1) (it) (d). The Appellate Tribunal, however, in the concluding para. of his order left it open to the management to impose the minor penalty on the respondent as prescribed by Standing Order 15 (1) (ii) (d).

The main ground urged before us i3 that the order of the Appellate Tribunal was illegal and without jurisdiction inasmuch as it could not substitute in own findings in place of that of the Enquiry Officer. The learned counsel for the petitioner, Mr. Mir Muhammad Shaikh, has failed to point out any law on the point. Section 38 subsection (3) of the I. R. O. lays down as under :

"the Tribunal may, on appeal confirm, set aside, vary or modify the award and shall exercise all the powers conferred by this Ordinance on the Court, save as otherwise provided."

The learned counsel has not pointed out any other provision of law by which the powers of the Tribunal were restricted. The Tribunal was therefore, competent to pass the impugned order.

Another point urged before us is that the Tribunal had grossly misread the charge‑sheet issued to the respondent and had misinterpreted the contents of the same, as the Tribunal failed to observe that the charge‑sheet contained a number of acts of omission amounting to misconduct.

We find no force in this argument as the contents of the charge‑sheet mentioned above disclose only a single act of carelessness on the part of the respondent and not a number of such acts, or repeated acts of the same nature. The single act of omission could not he treated as wilful damage to or loss to employer's goods or property as provided under Standing Order 15 (3) (c) but it would amount to careless or wasteful working as defined by 15 (1) (ii) (d). There is also no mention in the charge‑shark that the act of omission of the respondent was either habitual or wilful. The Appellate Tribunal has based his finding on the contents of the charge‑sheet issued to the respondent and came to the conclusion that the respondent was guilty B of carelessness only. This was finding of a fact, which the Tribunal was competent to arrive at in an appeal before it. The Tribunal could set aside, vary or modify the award given by the Enquiry Officer as the appeal was merely the continuation of the original proceedings. The Appellate Tribunal was competent to interfere with an error which was found in the decision from which the appeal had been preferred. The Appellate Tribunal has rightly held that the allegation in the charge‑sheet called for a minor penalty and not for major punishment of dismissal for a single act of omission. No illegality was committed by the Appellate Tribunal, hence we' find no reason to interfere.

The petition is accordingly dismissed in limine.

S. A. H. Petition dismissed.

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