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Appeals Nos. LHR=70 and 97 of 1981, decided on Ist August, 1982.

-- Misconduct-Workman alleged to have caused injury to co worker-Incident occurring outside premises of establishment Accused hurling brickbats as a result of a quarrel with his relative not an employee due to enmity and quarrel not connected with business of establishment- Co-worker by chance injured in such brick batting-Act of accused, in circumstances, held, did not amount to misconduct justifying dismissal-Re-instatement without back benefits awarded by Labour Court, in circumstances, upheld by Appellate Tribunal-Industrial Relations Ordinance (XXIII of 1969), Ss. 25-A & 38 (3) .

Naeem Bokhari for Appellant.

Malik Muhammad Asghar for Respondent.

Date of hearing : 3rd July, 1982.

The above-captioned two appeals arise from the decision, dated 25th January, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of Muhammad Younas was accepted and he was directed to be re-instated in service without back benefits. Faletti's Hotel has filed appeal against the re-instatement of Muhammad Younas, while Muhammad Younas has filed appeal claiming back benefits. Since both the appeals arise from the same impugned decision, they are being disposed off together through this single judgment, in which Faletti's Hotel will be described as the appellant and Muhammad Younas as the respondent.

2. The respondent was a Dish Washer in the Faletti's Hotel. On 30th September, 1980 a show-cause notice was issued to him on the alle gation that he had caused injuries to one Muhammad Farooq, Page-boy of the Hotel and that he was in the habit of indulging in acts subversive of discipline. The reply filed by the respondent is Exh. R-t. An accounts executive was appointed as Enquiry Officer who held the respondent guilty of the charges after making enquiry. After serving a second-show cause notice Exh. R-3, the respondent was dismissed from service, vide order Exh. P-2. The respondent after serving grievance notice Exh. R-5, brought the grievance petition.

3. Admittedly the incident took place outside the Hotel near a park. There were differences between the respondent and his maternal uncle Muhammad Ismail, who was not an employee of the Hotel. Brick- batting was done, as a result of which Muhammad Farooq was injured. From the evidence it appears that a piece of brick was hurled by the respondent at his maternal uncle Muhammad Ismail and since Muhammad Farooq was attracted by the noise at the place of incident, he was hit by the said piece of brick. Admittedly there was no enmity between Muhammad Farooq and the respondent before the incident took place. The question, therefore, arises whether the act done by the respondent amounted to misconduct. So far as Standing Orders Ordinance, 1968 is concerned, the act done by the respondent is not covered by the list of acts which amount to misconduct. If the incident had taken place within the hotel, of course whatever the ground of the incident may have been there could be justifica tion for the appellant to take action against the respondent. If the target had been Muhammad Farooq in the incident in dispute, of course it could be said that since he was an employee of the hotel, the management was justified in taking notice of the incident. It was quite a private affair between the respondent and his maternal uncle between whom there were differences and the hotel authorities were in the least concerned with it. They are not responsible for the private affairs of the employees outside the hotel not concerned in any respect with the business of the hotel. The learned counsel for the appellant has argued that although there is no direct evidence that the brick which injured Muhammad Farooq was actually aimed at him by the respondent, yet since Muhammad Farooq stated that a compromise had been affected between him and the respondent. It is clear that Muhammad Farooq had been intentionally hit by the brick aimed at him by the respondent, otherwise no question of compromise could arise. I cannot agree with him. Since Muhammad Farooq had in reality been injured at the hands of the respondent, therefore, unless the injured person had made statement in the criminal case, the criminal proceedings could not have been dropped. Therefore, the compromise was effected between them. But otherwise this is not born out by the evidence on the record that the brick was intentionally aimed at Muhammad Farooq by the respondent. The respondent had no cause to intentionally brickbat Muhammad Farooq. There is no evidence that during the incident Muhammad Farooq had in any manner provoked the respondent, If Muhammad Farooq had in any manner caused any provocation, of course it could be said that the brick was intentionally hurled by the respondent at him. Human beings naturally are opt to retaliate by aggression if they are provoked or injured. Needless to say that a man is a fighting animal and will not remain inactive if he is provoked or attacked. Either he will act in retaliation or in self-defence. The hotel management cannot, therefore, expect from its employees that if they are abused by any person with whom they have difference, they should not retaliate. The maternal uncle of the respondent had no business to go to appellant hotel. I is thus clear that he was the aggressor. He picked up the quarrel. The offence not being of moral turpitude, there was no justification for the appellant to go to the extent of dismissing the respondent. In these circumstances the learned lower Court was justified in directing the re-instatement of the respondent in service.

4. Since it is proved that the respondent did take up a quarrel with his maternal-uncle, in which an employee was also injured, he was rightly not allowed back benefits.

5. As a result of the observations made above, I do not find any force in the two appeals, and dismiss them.

A. E. Appeals dismissed.

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