AJMAL MIAN, .1.---This petition is directed against the order dated 24th January, 1980 passed by the learned Sind Labour Appellate Tribunal at Karachi in Appeal No, KAR 309/7g.
The brief facts leading to the filing of the above petition are that petitioner No, 2 was employed with effect from 23rd September 1968 as a Machine Operator in respondent No, 2's factory. However, in 1974 he applied for a post of mail and outdoor general clerk. He was selected and posted as such on 20th September, 1974. It seems that on 27th August, 1976 (Annexure A to the petition) petitioner No, 2 was issued a letter by respondent No, 2 stating therein, that he refused to use motor-cycle for discharging his duties which he was using for the last 2 years. He was also called upon to show cause as to why disciplinary action may not be taken for the misconduct within the meaning of Standing Order 15 (3) (4) of the West Pakistan (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance), to which petitioner No, 2 submitted his reply dated 27th August, 1976 (Annexure H to the petition), in which it was stated that he was using motor-cycle in the past, but since he did not hold any licence, he would not like to ride a motor-cycle. It seems that there was further correspondence between petitioner No, 2 and respondent No, 2 on the above subject.
Eventually respondent No, 2 through their letter dated 15th September, 1976 (Annexure F to the petition) asked petitioner No, 2 to obtain driving licence. However, petitioner No, 2 eventually refused to obtain a driving licence in as much as he enquired from respondent No, 2 under what law he was bound to obtain the driving licence. After that respondent No, 2 by their letter dated 23rd December, 1976 (Annexure H to the petition) in exercise of the powers conferred on them under standing Order 12 (1) terminated petitioner No, 2's services by way of discharge and on full benefits. Petitioner No, 2 was also given one month's salary in lieu of the notice. It further seems that upon the receipt of the above notice, petitioner No, 2 after serving a grievance notice under section 25 (A) of the I. R. O. In or about March 1977 through the Union i,e, Petitioner No. 1. The above application was allowed by the learned Sind Labour Court No, 2 Karachi through an order dated 26th June, 1978 (Annexure M to the petition) and petitioner No, 2 was re-instated in service with all back benefits and continuity in service. Respondent No, 2 being aggrieved by the above order filed the aforesaid appeal No, KAR 309/78, which was allowed by the learned Sind Labour Appellate Tribunal through the impugned order dated 24th January 1980. The petitioners being aggrieved by the above order have filed the present petition.
2. (a) In support of the petition, it has been urged by Mr. Ali Amjad, learned counsel for the petitioners that as the learned Sind Labour Appellate Tribunal has held that it was the essential part of petitioner No, 2's duties to carry out outdoor duties and use of motorcycle and, therefore, refusal to use the motor cycle on the part of petitioner No, 2 would constitute a misconduct within the meaning of standing Order 15 (3) (a) necessitating an enquiry within the ambit of clause 4 of the above Standing Order, and, hence the termination of Petitioner No, 2's services under Standing Order 12 (I) was not legal. It was further contended by him that the termination of Petitioner No, 2's service is in fact colourable exercise of the power as has been rightly held by the learned Labour Court. In support of his above contentions he has referred to the case of U. B. Butt & Co. (Private Limited) v. Their Workmen , and the case of Messrs Pakistan Tobacco Co. Ltd. v. Pak Cigarette Labour Union . On the other hand it has been urged by Mr. A. A. Sharif learned counsel for the respondent that since the finding of the learned Labour Appellate Tribunal that the termination of petitioner No, 2's services is not colourable exercise of the power is based on the evidence, this Court cannot interfere with the above finding in exercise of its Constitutional Jurisdiction under Article 199. His further submission was that an order of termination of services under Standing Order 12 (1) of the Ordinance can be assailed only if it can be shown that it was a colourable exercise of the power vested in the employer.
(b) Reverting to Mr. Ali Amjad's contention that according to the finding of the learned Sind Labour Appellate Tribunal it was essential part of petitioner No, 2's duties to carry out the outdoor duties and the use motor cycle and therefore, the refusal to use the motor cycle would constitute a misconduct within the meaning of Standing Order 15 (3) (a) of the Ordinance necessitating an enquiry before terminating Petitioner No, 2's services, it may be observed that the above contention is based on wrong promise in asmuch as there is no finding recorded by the learned Sind Labour Appellate Tribunal to the effect that the use of the motor cycle was a part of Petitioner No, 2's duties. It may be pertinent to quote herein below relevant portion of the impugned order which reads as follows :- "7. An examination of the above correspondence establishes that the reason for the termination of services of Muhammad Hayat was that since he had no licence to drive a motor cycle and was not even prepared to obtain it, he could not perform his outdoor duties, which involved the frequent riding of a motor-cycle, and, therefore, his utility to the Company was greatly diminished.
The appellant establishment could not lawfully direct Muhammad Hayat to obtain a licence to drive a motor-cycle, and, therefore, the query of Muhammad Hayat to the Company in his letter dated 17th December, 1976, enquiring as to the law under which the Company could require him to obtain a licence to drive a motor cycle was valid. It was evidently a realization of this position that made the appellant establishment to drop the idea of taking disciplinary action against Muhammad Hayat for alleged misconduct. The termination orders, however, were not on the basis of any fact of misconduct committed by Muhammad Hayat but by reason of the fact that he could not perform outdoor duties and, therefore, his utility to the Company was greatly reduced. It is quite clear on the evidence of record that the duties of Muhammad Hayat included outdoor duties,1 2 requiring the use of a motor-cycle or other vehicle. This is clear not only from Muhammad Hayat's own admission in "his letter to the appellant establishment, particularly his letters, dated 20th February, 1976 and 17th December, 1976, wherein he has admitted frequently driving a motor-cycle in the discharge of his outdoor duties, but also from (1) his very letter of appointment, which specifically states as one of his duties, out door work. (2) delivery of mail forms from 3rd February, 1976 to 31st May 1976 which are at pages 315 to 365 of the Labour Court's record, showing delivery of items by Muhammad Hayat to Grindlays Bank, (3) the vouchers/cash memos for repairs of motor cycles by Muhammad Hayat, which appear at pages 305, 307, 309, 311 and 313 of the record of the learned Labour Court and (4) the several slips from Muhammad Hayat to the appellant establishment at pages 581 to 583 of the Labour Court's record, requisitioning transport for making delivery of articles etc. These pieces of evidence clearly indicate that it was an essential part of the duties of Muhammad Hayat to perform outdoor duties and for this work he either to use a motor- cycle or where it was not possible for him to do so, either due to non-availability of the motor-cycle or by reason of the nature of articles which he was required to deliver to use some other transport.
Since Muhammad Hayat, despite the fact that he had been making use of the Company's motor- cycle for performance of his outdoor duties for about 2 years, had not only declined to use them, but even he had declined to obtain a licence to drive a motor-cycle, although given adequate "opportunity by the Company to do so, in my opinion the appellant establishment was justified in terminating his services, and, therefore, his termination orders appear to be based on 'good and valid grounds. I find no force in the contention that this was a device to get rid of any unwanted workman. As already pointed out, repeated opportunities were afforded to Muhammad Hayat to obtain a driving licence, but he declined to obtain one, for reasons best known to him. This shows that Muhammad Hayat was adopting an unreasonable attitude. In any case, the Company's requirement was a person who was able to drive a motor-cycle and to make use of the Company's motor-cycles. In the show-cause notice dated 27th August, 1976, it has been asserted by the appellant establishment that even at the time of interview this requirement of the Company was made clear to Muhammad Hayat. Support to this fact is lent by the evidence of Mr. M. Anwaruddin, Assistant Secretary in the appellant establishment, who was present at the time of the intereview.
The sole question before the two Courts below was as to whether the termination order is a colourable exercise of the power on the part of respondent No,
2. The finding of the learned Sind Appellate Tribunal to the effect that it was not colourable exercise of the power, but the action was justified in the circumstances of the case seems to be is A inconsonance with the evidence on the record and, therefore, it cannot be interfered with by this Court while exercising its constitutional jurisdiction under Article 199 of the Constitution.
(c) Reverting to the case of U. B. Dutt Co. v. Their Workmen, it will suffice to observe that in the above case the facts were that a workman was issued a charge-sheet for misconduct but instead of holding a proper enquiry, services of the said workman were terminated in the exercise of the power under Rule 18 (A) of the Standing Order. It was held by the Supreme Court of India that "where the provision of Standing Order is used to get rid of a workman instead of following the course of holding enquiry for misconduct, notice for which had been given to the workman and for which departmental enquiry was intended to be held, it would be colourable exercise of power vested in the employer,"
The facts of the above case are distinguishable from the instant case in as much as in the present case no charge-sheet was served on petitioner No, 2 and secondly it is the finding of the learned Sind Labour Appellate Tribunal that the action on the part of the respondent No 2 to terminate the petitioner No, 2's services was justified in the circumstances of the case.
(d) With reference to 1964 Karachi case, it may be stated that in the above case the workman had remained absent from duty for about 10 days without leave and the employer without resorting to the provisions of the Standing Order 13 (3) (e) purported to terminate the services under Standing Order No, 12 (1). It was held by the High Court that it was a colourable exercise of the power vested in the employer. The facts of the above case are also distinguishable, from the instant case in as much as petitioner No, 2's services were not terminated in order to punish him, but the above action was promoted to get better service from an outdoor clerk willing to use a motor cycle.
Admittedly respondent No, 2's factory is situated about 6 to 7 miles from the city.
(e) Reverting to the contention of Mr. A. A. Sharif that since there is a finding of fact given by the learned Sind Appellate Tribunal to the effect that the act of termination of petitioner No, 2's services was not colourable exercise of the power, this Court can not interfere with the above finding of fact unless it is found to be contrary to the evidence or perverse, it may be observed that the learned Appellate Tribunal has discussed the evidence produced by the parties as is indicated from the above quoted passage from the impugned order, in order to determine the question of bona fide or mato fide and the conclusion arrived at be the learned Appellate Tribunal on the state of evidence on the record cannot be said to be perverse or contrary to the record. In this view of the matter this Court cannot interfere with the above finding of fact in the exercise of its Constitutional jurisdiction under Article 199.
Mr. Sharif has also referred to the case of Chartered Bank, Bombay v. Its Union and the case of Karnaphully Paper Mills Its workers Union and others . In the first case the facts were that the employment of one of the employees working in the bank under the Chief Cashier was terminated on the report of the Chief Cashier that he could not guarantee in respect of the said employee in view of his persistent failure to comply with the rules of the department. It was held by the Supreme Court of India that in view of the above facts, it could not be urged that the termination of the service of the aforesaid employee was colourable exercise of the power. It was emphasised that the question as to whether the termination is bona fide or colourable exercise, of the power will depend on the facts of each case, whereas in the second case the Supreme Court of Pakistan held that the principle that where punishment is not found possible in the case of an employee who has been placed under a charge, his discharge upon notice of termination simpliciter is also barred cannot be accepted on any ground in relation to private employment. The above two cases lend supported to the learned counsel for the respondents' above contention.
4. Since we have already held that the finding of the learned Labour Appellate Tribunal that the respondent No,s' act of terminating the petitioner No, 2's services in the circumstances of the instant case is not colourable exercise of the power and is in consonance with the evidence on the record, and, therefore, it cannot be said to be perverse or contrar to the record, hence no exception can be taken to the impugned order. In or view the question, as to whether termination of services of an employee under Standing Order 12 (1) is a colourable exercise of the power or a bona fide act on the part of an employer will depend on the facts of each case.If from the facts of the case, it seems that the action on the part of the employer was not prompted with the object to punish the employee, but it was necessitated in view of the circumstances of the case, the termination of service in such a case cannot be termed as a colourable exercise of the power. In the instant case it is an admitted position that petitioner No, 2 after taking over the charge as the mail and out-door clerk started using the motor-cycle as it was necessary for the efficient discharge of his duties for the reason that respondent No, 2's factory is situated about 6 to 7 miles away from the city.
Petitioner No, 2 after using the motor cycle for about 2 years all of a sudden stopped using the same for the reason that he did not hold a driving licence. Thereupon, respondent No, 2 instead of insisting upon that petitioner No, 2 should ride motor-cycle without a driving licence, asked him to obtain the same, and gave him ample opportunity for that purpose. But petitioner No, 2's attitude3 4 was uncalled for in as much as he declined to obtain a driving licence. The fact that petitioner No, 2 made use of the motor cycle for nearly two years soon after taking over the charge of the aforesaid post, lends support to respondent No, 2's witness Mr. M. Anwaruddin's testimony that in the interview petitioner No, 2 was told about the requirement of the use of a motor-cycle. In or view in the instant case respondent No, 2's action of terminating petitioner No, 2's services is not tainted but promoted with the object to avail of services of a mail and outdoor clerk willing to use motor cycle for efficient and convenient discharge of the duties. It is not expected of respondent No, 2 to make a vehicle available to a mail and out-door clerk for discharging his duties. Respondent No, 2's above action under the circumstances of the instant case pre-eminently seems to be bona fide.
The upshot of the above discussion is that the above petition has not merit, and therefore, it is dismissed with no order as to costs. Patition dismissed. 1962 PLC 1238 PLD 1964 Kar. 337 1960 PLC 1051 1961 PLC 991