1. ' SYED ZAWWAR HUSSAIN JAFFERY, J---The petitioner has challenged the order dated 15-4-1996 of the Sindh Labour Appellate Tribunal Karachi in Appeal No,AAR 390/1995 under sedcion 37(3) of I.R.O., 1969, between Mukarram Shah v. Dawood Cotton Mill Ltd. Landhi, with the prayer that the impugned order may be set aside, or reversed, modified, case remanded or any other suitable or appropriate order be passed.
2. ' The brief facts as disclosed in the petition are that on28-12-1991 the petitioner, who was a permanent worker of the respondent Mill was informed by .a co-worker during prayer and dinner interval that Chowkidar Abdul. Ghafoor had locked up three workers of his department for allegedly committing theft in the Canteen. As the petitioner was looking.After the work of Jobber for that day in his absence, he went to the Canteen to know what had happened. He met the Chowkidar who informed him that three workers had committed theft. Meanwhile the Canteen contractor arrived who stated that nothing had been removed from his"canteen and the premises were securely locked.
3. On 31-12-1991 the petitioner suddenly received a charge-sheet alleging theft and disorderly behaviour.. The charge-sheet was duly replied on,31-1-1992. Enquiry was held and by an order dated 19-2-1992 the petitioner was dismissed from service.
4. ' On 26-2-1992 the petitioner served a grievance notice and on 184-1992 - he filed grievance petition under section 25-A of I.R.O. In person. This application was duly, received by the Court, R.M.O. And after scrutiny was admitted and notice issued to the respondent.
5. ' Written statement was filed. This written statement will clearly show that it was not contested or denied that the petitioner was not the maker of the main application under section 25-A of I.R.O.
6. Nor was this a question of dispute in the pleadings of the parties, At the time of evidence the petitioner was shown certain thumb-marks without telling him as to on what documents these thumb-marks were put. Nevertheless on this technical ground alone the mian application under section 25-A of I.R.O. Of the petitioner was dismissed but at the same time it was held that he was not guilty of the charges for which he was charged i.e, theft and disorderly behaviour.
7. ' However, on filing appeal by the present petitioner before the Sindh Labour Appellate Tribunal on 25-9-995 udder-section 380) of, the I.R.0. 1969 the same after arguments were dismissed on 154- 1996 by B the respondent No,1 under Appeal No,KAR. 390 of 1995.Hence the petitioner through this petition has sought, the following reliefs:--
(i) to hold and declare the impugned both the decisions dated 31-8-1995 and 15-4-1996 of Sindh Labour Court and Sindh Labour Appellate Tribunal to be without lawful authority, arbitrary, based on failure to apply the mind to the material on record leading to miscarriage of justice.
(ii) to set aside the impugned decisions both of 31-8-1995 and 15-4-1996 of Sindh Labour Court and Sindh. Labour Appellate Tribunal Karachi, revised, modified, case remanded or any othersuitable or appropriate order be passed in the interest of justice to grant and give appropriate and adequate relief to the petitioner.
8. ' Mr. Nisar M. Mughal, learned counsel for the petitioner has raised the following points:-
(1) The Labour Court erred in holding that the main application was not thumb-marked by him and dismissed the application on this technical ground alone.
(2) In view of the findings of not guilty of the charge of theft and disorderly behaviour under Standing Order 15(3)(4) of the Standing Orders Ordinance, 1968 on the very application and evidence of the petitioner, the lower Court could not turn around and say that the main application is not maintainable as the petitioner has not admitted his thumb-impression on it in cross- examination.
(3) The learned lower Court seriously erred-in law in holding that in case of illiterate _person mere non, recognization of the thumb-impression on the main application or even. Affidavits, which is a technical point would be fatal to-the case, specially'when these documents have in fact been taken into consideration in-coming to the finding that he -had not committed any misconduct within the meaning of Standing Order 15(3)(4).
(4) The judgment and order impugned both herein from both the lower Courts are bad in law as well as on facts of the case.
(5) Both ..The learned Courts below acted without jurisdiction in totally ignoring and not considering at all the petitioner's version brought on record.
9. ' Mr. Chaudhry, Rasheed Ahmed learned counsel- for the respondent No,2 has contended that findings of learned Courts below are based on legal and factual aspect of the case.-The Enquiry Officer found the petitioner guilty of offence of misconduct/ mis-behaviour within the Mill premises during duty hours as the incident of riotous behaviour occurred at the canteen during; the prayer break. The workers had no licence to become quarrelsome and rowdy during intexval for payers and meals.
10. ' Mr. Choudhry Rasheed in support of his arguments has relied upon case of Gharo Textile Mills v.
11. Muhammad Sultan (1980 PLC 999). It will be appropriate to reproduce the decision of the Lahore Appellante Tribunal as under:-- "The sub-clause (h) of section 15(3) of Standing OrdersOrdinance 1968 defines misconduct in the following words:-- "Riotous Or disorderly behaviour during working hours at the establishment or any act subversive of discipline. A Canteen in the mill can be regarded as part of the establishment. A prayer break during the working hours does not exempt the workers of liability for the act subversive; of discipline."
12. ' It cannot therefore be said that misbehaviour in the Canteen during prayer break will not constitute misconduct."
13. "It has been argued by Mr. S.A. Channa, Advocate for the respondent that the phrase "working hours" will not include intervals allowed for rest and meals. But in this case the break was for Maghrib prayers and not for rest while the shift hours were continuously from 4.00 p.m. To 12.00 p.m.
14. It cannot therefore be said that the prayer break was not part of the working day. The workers have not a licence to become quarrelsome and rowdy during intervals for prayers and meals."
15. ' A similar observation was made in the case of Gharo Textile Mills Ltd., v. Muhammad Sultan (1980 PLC 999). The relevant portion from the cited case is reproduced as under:- "Another incidental point which requires consideration is whether an act subversive of discipline, in order to constitute misconduct for the purpose of sub-clause (h) of Standing Order 15(3) has to be committed during office hours on the establishment. In order to appreciate this contention, it would be desirable to setforth the said sub-clause which reads as under:-- "(h) Riotous or disorderly behaviour during working hours on the establishment or any act subversive of discipline."
16. ' A bare perusal of the above clause makes it abundantly clear that the condition of 'during working hours of the establishment' is applicable only to riotous or disorderly behaviour but not to an act subversive of discipline as well be presently shown, even though may not have been committed during office hours or on the establishment. It would not be reasonable interpretation of the law or in harmony with the object of the statute to exclude such acts from the plea of misconduct for the purpose of taking disciplinary action under sub-clause (h), it was held by this Tribunal in the case of Ahmed v. Bawani Textile Mills. Ltd. (i)that the word 'or' appearing Standing Order 15(3)(h) is not conjunctive but dis-conjunctive and if a workman commits any act which is subversive of discipline, it is sufficient to bring his conduct within the said Standing Order, whether or not it is committed during working hours or at the establishment."
17. ' It is pertinent to consider, whether the material before the enquiry officer was sufficient to establish the charges, if so whether the Labour Court could substitute the findings of E.O. With his own findings. As per material brought on record, the petitioner along with coworkers, Roeder Ali, Bashir Iqbal entered in the cabin of the Mills Canteen and tried to steal eatable, but timely intervention of watchman, Ghafoor Khan was made. They were caught red handed by the said watchman. The E.O., recorded the statements of P. Ws namely Ghafoor Khan, Rehman, Samiullah and Atta Mohamad. There was sufficient material and charges were duly established against the petitioner, through testimony of the above named witnesses in the enquiry proceedings.
18. ' TheLabour Court vide its order dated 31-8-1993 in point No,2 has observed that the evidence of the Canteen Contractor was important but he has not been examined by the E.O. In fact petitioner and coworkers namely Qoedar Ali and Bashir lqbal entered into Cabin of the Mills canteen and tried to steal some eatable from it, but they were caught red handed, at that time canteen contractor was not available to witness the incident. There was sufficient evidence against the petitioner C to establish the charges, therefore, the Labour Court cannot substitute the findings of E.O. On his own findings without any tangible material.
19. ' The view taken by the Labour Appellate Tribunal is based on proper appreciation of facts and law, therefore, they have rightly dismissed the grievance petition as well appeal respectively, Mr. Nasir A.
20. Mughal, learned counsel for the petitioner is unable to pin point any material irregularity or jurisdictional error in the findings of respondents Nos.1 and 2.
21. ' As a result of above discussion we found that there was no merit in this petition and the same was dismissed by a short order dated 4-6-2004 for the reasons to be recorded latter.
22. ' The above are the detailed reasons for the same.