' ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- This appeal assails the order dated 19-9-2002 passed by the learned Presiding Officer, Punjab Labour Court No,3, Lahore at Ferozewala whereby the grievance petition filed by the appellant was dismissed with costs.
2. The facts of the case briefly are that the appellant was employed as Laboratory Assistant (Grade-I) with the respondent establishment on 26-5-1996. On account of his alleged good performance he was promoted in due course of time in Grade-II. He was served a charge-sheet alleging, inter alia, that it came to the knowledge of the management that the condensed milk being purchased from United Dairies Limited, Lahore was not in accordance with supply standard and in fact sub-standard milk was being supplied. It was added that on 7-3-2002 a difference was found in the quality checking of the milk examined by the appellant and one Muhammad Younus, Laboratory Assistant which was countersigned by Mr. Muzaffar Abbas Zaidi, Quality Control Manager of the factory. The Factory Manager compared the same with the result given by Chaudhry Dairies Limited and it was alleged that the appellant had designedly given wrong result in order to cause huge loss to the company in their business.
3. The appellant refuted the charge and claimed that he had never deceived the company and the result was fair and proper and no ill will or any mal-intention was involved in giving the result which was being questioned by the company. It was added that this result was endorsed by Muhammad Younas another Laboratory Assistant and was also approved by the Quality Control Manager hence the charge was absolutely unfounded.
4. The company however appointed an Enquiry Officer who conducted the enquiry but the appellant questioned his impartiality and made a request to the company in writing twice that the enquiry officer was biased against him as such in order to ensure fair and independent enquiry, another enquiry officer may be appointed. The company paid no heed and it appeared that they were determined to oust him from service at any cost on account of his trade union activities.
5. The establishment refuted all the assertions and claimed that the enquiry was fair and impartial and proved that the result given by the Chaudhry Dairies Limited was accurate and strictly in accordance with the norms of testing. The appellant had deliberately given the result in order to cause loss to the company for ulterior motives. The enquiry officer after conducting the enquiry submitted his report on the basis of which ultimately the appellant was dismissed from service vide order dated 21-4-2002.
6. In view of the varying versions of the parties the learned Labour Court recorded the evidence of the parties and after hearing arguments, came to the conclusion that the analysis given by the Chaudhry Dairies Limited was much more authentic than that of the appellant as such it is obvious that the appellant has committed misconduct and has wrongly given the result otherwise.
7. It is submitted by the learned counsel for the appellant that the appellant's fairness is obvious from the report dated 5-3-2002 vide Exh.P-3 by which United Dairies Limited milk was rejected by the appellant himself and the same was endorsed by another Laboratory Assistant and the Quality Control Manager. Had the establishment taken the sample of the milk from the milk which was tested by the appellant and then sent to the Chaudhry Dairies Limited that of course had been a valid result of Chaudhry Dairies Limited. This could have been legitimately compared with the result recorded by the appellant and this way true picture could have been conveyed. God knows better what happened with the sample of the milk which was sent to Chaudhry Dairies Limited as such unless the sample had been properly taken in the presence of the appellant in a sealed bottle and then sent to the Chaudhry Dairies Limited, that result would have been worth consideration but not the one which is based on the sample clandestinely sent to the Chaudhry Dairies Limited. It was further added that the following factors affect the milk testing:---
(1) Temperature
(2) Apparatus
(3) Chemical
(4) Human error.
(5) Sample collection
(6) After sampling addition of water at any stage.
8. On the other hand it was pointed out by the learned counsel for the respondent that sample was not sent to the Chaudhry Dairies Limited in presence of the appellant because he might have prevailed upon the testing establishment in Chaudhry Dairies and could have procured the result of his own choice.
9. Arguments have been heard and record has been perused.
10. It is established fact that the sample of the milk sent to the Chaudhry Dairies Limited was neither taken in presence of the appellant nor was sealed in his presence as such it is not proved that sample sent to Chaudhry Dairies Limited was from the same milk which had been tested by the appellant. The appellant had made two written requests that enquiry officer instead of being impartial was conducting the enquiry as a prosecutor as such he may be changed but the department appears to have paid no heed. This also reflects on the validity/impartiality of the enquiry. The appellant had also demanded copy of the enquiry report as well as the enquiry proceedings but that too had not been provided to him. The objectionable/questioned result given by the appellant was endorsed by Muhammad Younas another Laboratory Assistant and was countersigned by the Quality Control Manager Mr. Muzaffar Abbas Zaidi. They were experienced persons and as such their endorsement and counter signing indeed lends meaning to the report submitted by the appellant. The rejection of this report with one stroke of pen in the given circumstances does not appear to be based on sound reasons. No nexus has been proved between the United Dairies Limited and that of the appellant as such it cannot be said with certainty that the appellant was in league with the United Dairies Management and was out to cause damage to the respondent company and wrongful gain to himself. This shows that there is some truth in the allegation that the General Manager of the factory was not very comfortable with the appointment of the appellant and the other hierarchy in the quality control who rejected the milk of Prime Dairies once on account of it being blended with Mobil-oil nevertheless it was accepted by the Manager as per report of Shaukat Ali, Laboratory Supervisor appearing at page No,95 of the Labour Court's file to the following effect:--- "Note:-- First Milk was rejected due to black particles of mobil-oil. Then again it was accepted when Factory Manager asked us to check it and return only upper portion of milk, which contains more black spots.
Sd/- Shaukat Ali ' Laboratory Supervisor"
11. The learned Labour Court appears to have taken note of the mind and mood of the establishment that they have involved in this case not only the two Laboratory Assistants but have also implicated the Quality Control Manager Mr. Zaidi and has rendered a judgment against the appellant with costs. Unfortunately it has escaped from the notice of the Labour Court that in order to establish the guilt firstly the proving of mens rea was essential and secondly there must have been established a link between the appellant and the United Dairies Limited to show that both were in league with each other. This, I am afraid, is lacking in this case. Another point is noteworthy there is no proof that sample which was sent to the Chaudhry Dairies Limited was the one which was taken from the milk tested by the appellant and the sampling had been done in his presence.
This also makes a marked difference in the whole story. Thus there appears to be a taint of arbitrariness in the judgment of the learned Labour Court.
12. It appears that the respondent has failed to show that questioned result was given designedly with ulterior motives in order to cause loss to the company and wrongful gain to himself. It is noteworthy that a perusal of the entire record reveals that the company was so much stung by this result of the appellant that the management not only proceeded against him but filed a criminal case against him in which he was acquitted and had also proceeded against Mr. Muhammad Younas the second Laboratory Assistant and had not spared even the Head of the Quality Control Department Mr. Muzaffar Abbas Zaidi and penalties were also imposed on them. As such I feel that the order of reinstatement will not be workable. Imposition of an unacceptable worker on the establishment has never been held to be a sound approach. In fact if a party has no faith in the honestly /integrity or loyalty of the employee, to force him to serve or to employ that person is a plain recipes for disaster.
13. A question may arise here that this case pertains to 2002 when section 46(5) of Industrial Relations Ordinance, 2002 has not been enacted which was enforced on 26-10-2002. When there is no provision allowing the court to grant compensation in lieu of the reinstatement, how could the court order compensation. I am afraid even if there is no such provision on the statute book yet it depends on the circumstances of each case whether the relief of reinstatement or compensation in wrongful dismissal from services would be appropriate remedy. The Hon'ble Supreme Court has been pleased to hold in Abbasi Textile Mills Ltd. v. The Industrial Court West Pakistan and Abbasi Textile Mills Workers Union, Rahimyar Khan etc. As under:- "As pointed out in the Glaxo Laboratories (Pakistan) Limited v. Pakistan and others (1) "it would, however, depend upon the circumstances of each case whether the relief of re-instatement or compensation for wrongful discharge from service would be the appropriate remedy. No hard and fast rule can be laid down in this connection." Now Kale Khan's services were terminated in 1956, that is, about 10 years ago. The Union or Kale Khan has not appeared before us. It seems that since then he has obtained employment elsewhere and is therefore, not keen to be reinstated to his old post. In these circumstances it will not be to his or any one's interest to thrust him on a Company which is unwilling to employ him. Even if a direction is given for his reinstatement, the Mill would be at liberty after complying with the order of reinstatement to proceed against him in accordance with the mode provided by law. In view of the above facts and circumstances I think that the ends of justice would be met by awarding compensation to him. Hence while setting aside the order of his reinstatement, I would direct that he should be paid a year's salary, that is, basic pay with all allowances, as compensation." (PLD 1966 SC 765)
14. In this view of the matter I feel appropriate that compensation should be awarded to the appellant. The appeal is accepted and the impugned order is set aside. The appellant is awarded compensation equivalent to 25 months basic pay (last drawn) and house rent if admissible, in lieu of the reinstatement of the appellant. This I believe would meet the ends of justice. There shall be no order as to costs.