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Appeals No. KAR‑661 and 662 of 1983, heard on 30th January, 1985.
‑‑‑ S. O. 15 (3) (a)‑Misconduct‑Crane operator directed to move crane to slurry tank and to‑clean tank of rubbish‑Order consisting of two parts, viz. (i) moving crane, and (ii) cleaning tank‑Second part not binding being out of duty hence not lawful Dismissal from service for not obeying order ‑ Evidence indicating that proceedings initiated due to taunting remarks of crane operator and matter being a petty one could have been solved by wisdom and tactful handling ‑‑Case, in circumstances, held, fit for awarding re‑instatement ‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3).
‑‑-Ss. 25‑A & 38(3)‑-Re‑instatement‑-Back benefits‑Case lingering on for a number of years‑Back benefits to extent of 50%, in cir cumstances, allowed.
Muhammad Humayon for Appellant.
Hameed Siddiqui for Respondents.
Date of hearing: 30th January, 1985.
This decision will dispose of the two appeals, named above. The workmen, Suleman Shah and Shah Gharib were re‑instated by two separate orders by the Labour Court No. IV, Karachi, on 12th December, 1983. Since the two appeals involve similar issues of facts and law, they have heard together.
2. The admitted facts of the case are, that Suleman Shah was employed in the appellant establishment as Crane Operator while Shah Gharib was employed as Incharge, Trolly and Crane. It appeared that on 14th June, 1981 at about 2‑45 p. m., the two respondents were directed by the Factory Engineer, Saleem Fidai, to take their men and the factory's crane to the slurry tank for cleaning it of rubbish and marble dust through the crane and drums. It is stated that both the respondents refused to comply with these directions of the Factory Engineer. Hence, the two respondents were charge‑sheeted and domestic enquiry was held against both of them. The two respondents failed to participate in the enquiry, therefore, ex parte enquiry was conducted and they were dismissed from service. The respondents preferred separate grievance petitions to the learned IVth Labour Court, Karachi. The learned Labour Court dismissed the grievance petitions and hope e, they Came as appellants before this Tribunal, who, vide its order, dated 17th January, 1983 remanded the cases to the learned Labour Court by framing the following two Issues: ---‑
(i) Whether the directions of the Factory Engineer, Saleem Fidai, to the two appellants to take the factory's crane to the slurry tank could be separated from the further direction to have the slurry tank cleared of rubbish and marble dust with the help of the crane and drums; and
(ii) Whether the direction of the Factory Engineer to the two appel lants to have the slurry tank cleared of rubbish and marble dust through the crane and the drums was a lawful order, which the appellants were required to obey and comply with.
3. The Labour Court was directed to give a finding on these two issues after giving an opportunity to both the parties to lead further evidence thereon.
4. The learned Labour Court re‑instated the two respondents herein and hence the management filed these two appeals.
5. After remand further evidence was recorded by the learned Labour Court of the witnesses, namely, Saleem Fidai, who was cross‑examined, and Sahat Ali, who was also cross‑examined. The arguments of learned counsel for the appellants, Mr. Muhammad Humayon and Mr. Hameed Siddiqi, Advocate, for the respondents were heard. In order to appreciate the case, it is necessary to go through the evidence and cross‑examination, further recorded by the learned Labour Court. On behalf of the respon dents, one Sahat Ali was examined and his evidence is to the effect that the work of cleaning of slurry tank was done on the basis of the contract and the respondents were not required to clean the slurry tank. The Trolly and Crane workers, namely, the two respondents never refused the orders of the superiors. In the cross‑examination, this witness has said that it was not the work of Suleman Shah and Shah Gharib to instruct the workers to clean the tank and it is not a fact that they refused to obey the orders given by the Factory Engineer, Mr. Saleem Fidai. Mr. Saleem Fidai was examined by the Labour Court. He has averred that on 14th June, 1981 at about 14‑30 hours, he ordered Suleman Shah to take the crane to slurry tank to which he refused point‑blank. He further taunted Saleem Fidai that "it is officers like you who are responsible for downfall of the Factory." It is to be noted that before the orders of remand of the case to the Labour Court, the enquiry held by the enquiry officer was more or less the ex parte order of dismissal. The Labour Court has examined these two further witnesses after the remand. The two issues framed by the Tribunal were answered by the evidence of the two witnesses, namely, Saleem Fidai and Sahat Ali and other circumstances of the statement of Suleman Shah and Gharib Shah in the evidence before the Labour Court. The fact is that the cleaning of rubbish was the function of the workers employed by the contractor. The crane was operated by Gharib Shah and Suleman Shah. There was no refusal as regards the operation of the crane so far the crane to be brought near the slurry tank. So far the cleaning of the slurry tank was concerned, it was tire function of sweepers contracted by a separate contractor. So, the two issues posed by this Tribunal were construed that the orders to move the crane upto slurry tank were lawful orders and they were to be obeyed by the two respondents and the second issue were the cleaning of the slurry tank, was not lawful as it was the function of the sweepers of the contractor.
6. The evidence brought on record shows that Mr. Saleem Fidai was irritated over taunting remarks of Suleman Shah "it was officers like you who are responsible for downfall of the factory." This annoyed Mr. Saleem Fidai and he initiated enquiry. This petty matter could have been solved by wisdom and tactful approach to the situation. It would not B have aggravated to the extent of an enquiry, then dismissal and then grievance petitions, if the situation was handled properly. Had it been controlled by the wisdom of the management, situation would not have aggravated to that extent. I have heard both the counsel and come to the conclusion that this is a case, fit enough where the workers Suleman Shah and Gharib Shah are to be re‑instated. As regards the back benefits, no fresh enquiry is needed. There is no allegation by the management that C the workers were employed gainfully anywhere else. But, because the workers' case had lingered on for a number of years, they may be paid back benefits to the extent of 50% only. The re‑instatement of both the respondents in the employment of the appellants establishment is hereby ordered in the above terms. Orders accordingly.
A. E.
Order accordingly.
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