Industrial Relations Ordinance 1969 Section 25 A Constitution of Pakistan (1973), Art 199 violates the responsibility of dismissing employees for dishonesty and gross negligence in performing their duties and looking at the contents of the record There is a need for care and attention. In the performance of its duties a part of the employee should examine the expenses and commissions of the employee in the light of the situation where a conclusion has been made on the examination of several facts, judging by the authenticity of such result. Have to do. They review all the facts about the entry of employees in which they confess that they left the establishment at the time of duty without the permission of their officers and tampered with the entries in the stock registers. Who had expressed gross negligence on her behalf on the Labor Appeal. The Tribunal rightly accepted the Establishment's appeal against the Labor Court finding, the Tribunal reached, the High Court upheld the exercise of its jurisdiction.
1987 P L C 787
[Lahore
High Court]
Before Muhammad Afzal Lone and Zia Mahmood Mirza, JJ
MUHAMMAD ATTIQUE WARSI
versus
THE MANAGING DIRECTOR, KAKAKHAIL INDUSTRIES and others Writ Petition No.4162 of 1983, decided on 12th October, 1986. .
Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art 199‑‑Dismissal of employee on charges of dishonesty and gross negligence in performance of duties‑‑Negligence is breach of duty to take due care‑‑Material on record fully demonstrated want of due care and attention on part of employee in performance of his duties‑‑Omissions and commissions of an employee are to be examined in the light of attending circumstances of case‑‑Where a conclusion has been reached on assessment of a number of facts, soundness of such a conclusion is to be adjudicated by evaluating all the facts in their setting in which they are found to exist‑‑ Employee's admission that he left the establishment during duty hours without permission of his superiors and his tampering with entries in the register of stocks, constituted gross negligence on his part‑‑Labour Appellate Tribunal having rightly accepted appeal of establishment against finding of Labour Court, conclusions reached by Tribunal were upheld by High Court in exercise of its appellate jurisdiction.
Muhammad Zaman Qureshi for Petitioner.
Muhammad Asad Ullah Siddique for Respondents.
Nemo for Respondent No.1.
Date of hearing: 12th October, 1986.
JUDGMENT
MUHAMMAD
AFZAL
LONE,
J.‑‑The petitioner was serving as a Oil Storage Clerk in Kaka‑Khail Industries, Faisalabad. He was proceeded against on the allegation that he performed his duties dishonestly and committed gross negligence. By order dated 20‑9‑1981, respondent No.1 dismissed the petitioner from service. He challenged this dismissal under section 25‑A of the I.R.O. The Labour Court on 12‑12‑1981 ordered the petitioner's reinstatement but without payment of back benefits. The management then preferred an appeal. It succeeded. The learned Punjab Labour Appellate Tribunal, vide order dated 13‑8‑1983, set aside the order of the Labour Court and dismissed the petitioner's grievance petition. He has now invoked the writ jurisdiction of this Court. We have heard the learned counsel for the parties and examined the record. The charges levelled against the petitioner, embodied in the show‑cause notice (Annexure 'A') are as under:‑
"Reference decantation of Bowzers received on 16th August, 1981, in your duty hours i.e. 2.00 p.m. to 10.00 p.m. Neither you checked the dips of the Bowzer nor the Storage Tank after decantation you have entered the dip of Storage Tank No.11 as 11'‑8"‑3", without physically measuring the dip. After decanting the Bowzers specially Bowzer No.830180 allowed its clearance without checking its no oil position. On morning 17th August, 1981 while checking the dip of Tank No.11 it was found that the dip entered in record was wrong and actually it was 11'‑3"‑0", against 11'‑8"‑3", recorded and oil was found short by approximately 5.00 M. tons. The Bowzer No.830180 standing near FDA Office was checked and it was found that it contains about 5.00 M. tons Edible. The Bowzer was again brought to Mills and the oil was decanted. This appears that you did not perform your duties honestly and committed gross negligence".
2. The inquiry was held into these charges and the Inquiry Officer in his report dated 14‑9‑1981, which covered the case of 3 other employees as well, was of the view that the petitioner left the Mill premises during duty hours without the permission of the competent Authority; did not personally satisfy himself that the Tanker was emptied and rather in this behalf trusted on inexperienced "Kuli" and dishonestly made an overwriting in the register relating to the quantity of the oil in the storage Tanker. In ultimate analysis the inquiry Officer found the petitioner guilty of gross negligence and opined that he should not be posted in a department, where he might inflict a loss of thousands of rupees on the employer. Three things heavily prevailed with the Labour Court, in allowing the petitioner's grievance petition. Firstly, only a single act of negligence was attributed to him and there was no evidence of his habitual negligence. Secondly, non‑decantation of oil‑tanker and removal of the oil therefrom on the following day did not smack of any dishonesty or mala fide intention of the petitioner. Thirdly, the inquiry was not conducted in accordance with law, inasmuch, the petitioner's statement was recorded before the depositions of the witnesses relied upon by the Management. The learned Punjab Labour Appellate Tribunal, differed with these findings and maintained that oil worth Rs.30,000 remained un-decanted for which the petitioner was responsible and this act could not be categorised as a simple negligence. According to the Tribunal keeping in view the nature of the act committed by the petitioner the single act in question was sufficient to constitute misconduct. It also took the view that the petitioner was fully aware of the actual factual position and the charges against him; even if his statement was recorded after the statements of the P.Ws, that would not make any difference and improve his cause. The learned counsel for the petitioner has reiterated the arguments which influenced the decision of the Labour Court. He argued that upon the language of Section 15(3)(i) of the Standing Orders Ordinance, 1968, only "habitual negligence, or neglect of work" could be treated as misconduct and thus, a single act of which the petitioner was accused of even if proved did not fall within the embit of 'misconduct'. In these circumstances, the learned counsel argued, that the penalty of dismissal from service, was not called for and the impugned order merited removal through judicial review. He emphasised that when the petitioner came to know of his omission, he immediately took steps to bring back the oil tanker to the Mill premises and got the remaining oil decanted. Thus, the Mill did not suffer any financial loss: These facts in the submission of the learned counsel, fully show that the petitioner did not have any dishonest intention. The view taken up by the learned Tribunal that the recording of the petitioner statement before that of the PWs, did not cause any prejudice to him, was also seriously criticised. On the other hand, on behalf of the Management, their learned counsel supported the impugned order and sought its sustenance.
3. Negligence is the breach of duty to take due care. It is failure to do something which in the circumstance of a case, a prudent man would do. The material on the record fully demonstrates want of due care and attention on the part of the petitioner in the performance of his duties. His omissions and commissions, are to be examined in the light of the attending circumstances of the case. It is well settled that when a conclusion has been reached, on assessment of a number of facts, then soundness of such a conclusion must be adjudicated by evaluating all the facts in their setting in which they are found to exist. It is the petitioner's own admission that he left the Mill during‑ the duty hours. For this, he did not inform his superiors much less to obtain their permission. He also tempered with the entries in the register in which the quantity of the oil in the Oil storage was recorded. It was the petitioner's obligation to have got decanted the oil tanker but in this respect he placed undue reliance upon an inexperienced Kuli. These facts smack of gross negligence of the petitioner. Even if there is no element of dishonesty in the act of the petitioner, that is not of much significance. Loss, which the Mill could have suffered is quite apparent. It is a different matter that the petitioner's negligence was detected; the oil‑tanker retrieved and the remaining quantity of oil decanted. If the argument of the learned counsel for the petitioner is accepted that in order to constitute misconduct there should be habitual negligence or neglect of work, then the petitioner should have the opportunity to repeat his lapses and inflict heavy financial loss on the Mill. Such a situation cannot be allowed to prevail. In fact no employer can afford it. The term 'misconduct' is not defined in the Ordinance and the instances of misconduct given in subsection (3) of Section 15 are not exhaustive. Each case of misconduct would depend upon its own facts. We hold that upon the facts of the case the Tribunal rightly accepted the Management's appeal, differed with the Labour Court and set aside its order directing re‑instatement of the petitioner.
4. We, are, also of the view that the manner in which the petitioner's statement was recorded did not cause any prejudice to him. He already stood fully posted with the facts of the case which emerged from his own omission. Our examination of the inquiry file has persuaded us to endorse the conclusion reached by the learned appellate Tribunal, in this respect as well. For all these reasons we do not find any merit in this writ petition. It is dismissed but with no order as to costs.
A. A. /M‑289/L.
Petition dismissed.
