' This appeal by the management is directed against a decision by the learned 11 Labour Court, given on 24th June, 1978 upholding the grievance application of the responient Union in respect of the termination of services of a workman, by name Mohammad Hayat, and directing the appellant establishment to reinstate him in service with full back benefits and continuity in service.
2. Workman Mohammad Hayat was appointed by the appellant establishment as Mailing/General Despatch Clerk, Grade I, in its accounts department, with effect from 23rd September, 1974, vide the company's letter, dated 20th September, 1974. It was specifically stated in the said letter of appointment that his duties would cover all work of mailing/despatching, stationery, outdoor work and any other duties allotted to him. It appears that Muhammad Hayat was performing all his duties in the appellant establishment to its full satisfaction, till August, 1976, when a dispute arose between him and the appellant establishment regarding use of motorcycles, or, rather refusal on the part of Mohammad Hayat to use the company's motorcycles for performing outdoor duties. It appears that whereas the appellant establishment was insisting that Mohammad Hayat should perform his outdoor duties by using its motorcycles and for this purpose he should obtain a proper driving licence, if he did not have one. Mohammad Hayat declined to use the motorcycles on the plea that he neither had a driving licence nor he was interested in obtaining one. Considerable correspondence passed between Mohammad Hayat and the appellant establishment on this issue and as the dispute was not resolved, the appellant establishment, by its letter, dated 23rd December, 1976 terminated the services of Mohammad Hayat, on the ground that as he did not possess a proper driving licence to drive a motorcycle, he could not perform his outdoor duties. He was also asked by the said termination order to collect all his dues as per his entitlement. The Pakistan Cables Employees' Union (the respondent herein) espoused the cause of Mohammad Hayat and challenged the orders of his termination of services before the learned Labour Court, which has passed the order which is assailed in the present appeal.
3. I have heard Mr. A. A. Shareef, who appeared on behalf of the appellant establishment, and Mr. Ali Amjad, who represented the respondent Union. Mr. A. A. Shareef assailed the impugned order of the learned Labour Court on 3 grounds. His first ground was that the services of Mohammad Hayat were terminated, not for misconduct, as wrongly held by the learned Labour Court but by reason of the fact that he was found unable to perform his outdoor functions, due to his failure to obtain a driving licence and, therefore, this was a case of termination of services simpliciter, in accordance with the provisions of clauses (I) and (3) of Standing Order 12. The learned counsel conceded that a show-cause notice, dated 27th August, 1976 was issued to Mohammad Hayat in which it was alleged that since he had refused to make use of the company's motorcycles for outdoor work, his refusal amounted to wilful disobedience of a lawful and reasonable order of his superior to do his normal outdoor work and consequently constituted an act of misconduct on his part under Standing Order 15 (3) (a), but he submitted that no action was taken on this show-cause notice and the termination orders were issued much later, on 23rd December, 1976 on the ground that Mohammad Hayat could not perform his outdoor duties since he neither possessed nor was willing to obtain a licence to drive a motorcycle. Mr. Ali Amjad, the learned counsel for the respondent- Union, on the other hand, submitted that the orders terminating the services of Mr. Hayat were a colourable exercise of powers vesting in the management under Standing Order 12 and were a cloak to get rid of an unwanted workman against whom it realized that charges of misconduct could not be established. In support of his contention, the learned counsel relied upon the decisions in the cases of Pakistan Tobacco Company v. Pak. Cigarette Labour Union and U. B. Dutt & Co. V. Their Workmen. In the latter case, the Supreme Court of India observed that "even though an employer may be entitled under the Standing Orders to terminate the services of a workman by giving him notice for a certain period or wages in lieu thereof. An Industrial Tribunal, to which such a termination of service is referred for adjudication, has the right to enquire into the causes that have led to the termination of service and if it is satisfied that the action taken was a colourable exercise of the power and was not bona fide or was the result of victimisation or unfair labour practice, it would have jurisdiction to intervene and set aside such termination." It may be pointed out that specific provision now exists in Standing Order 12, as substituted by Act V of 1972, entitling a workman to challenge the termination of his services by the employer before a Labour Court
4. In the Pakistan Tobacco's case, it as observed as follows :- "It is abundantly clear that his (workman's service) was terminated in order to make it clear to the other employees that the appellant-company would not show any indulgence to those workers who prolong their earned leave on false pretext and lame excuses. But for this purpose the appellant should not have resorted to employ Standing Order 12(1). The appellant company should have taken action under Standing Order 1 3 (3) (e) which treats the case of habitual absence without leave or absence for more than 10 days as misconduct resulting in dismissal, but could not have resorted to employ Standing Order 12 (I)."
5. The main issue thus which falls to be considered by this Tribunal is whether this is a case of termination of services of a workman simpliciter, in accordance with the provisions of clauses (I) and (3) of Standing Order 12, or a case of colourable exercise of powers, whereby, instead of resorting to the procedure for terminating the services of a workman on account of misconduct, resort has been had to the provisions of Standing Order 12. It may be pointed out here that under the said Standing Order it is permissible for an employer to terminate the services of even a permanent workman by giving him one month's notice or pay in lieu of notice. The requirements for such termination are that the order of termination of services must be in writing and must give1 2 reasons for the termination of services. It is not disputed that in the instant case both these requirements have been fulfilled. What, however, is contended by the learned counsel for the respondent is that this is a colourable exercise of powers and the Labour Court was entitled, as it has done, to go behind the termination order to determine whether it was a case of victimization or colourable and wrongful exercise of power. In order to appreciate the contentions on this issue, it is necessary to briefly refer to the correspondence between the appellant establishment and the respondent workman on the issue. The first communication is a letter, dated 27th August, 1976 from the appellant establishment to Mohammad Hayat, informing him that though motorcycles of the company were available, he had declined to do the outdoor work on the plea that he would only do so if the transport is available, and directing him to obtain a motorcycle and carry out his outdoor duties, which included urgent payment of taxes. To this letter, Mohammad Hayat replied by his letter, dated 27th August. 1976 wherein he denied that he had refusei to perform his outdoor duties and contended that as he had no licence to drive a motorcycle, he could not drive a motorcycle.
6. The response from the company to the above reply of Mohammad Hayat was to issue a show- cause notice, dated 3rd September, 1976 wherein it was asserted that at the time of the interview, it had been made clear to him that his outdoor duties would involve the riding of a motorcycle and that he had given assurance to the company that he would learn to drive a motorcycle.
Mohammad Hayat in his reply to the show-cause notice, dated 9th September, 1976 denied that at the interview he was informed that he would, as part of his duties, be required to drive a motorcycle or that he had given any assurance that he would learn to drive a motorcycle. He, however, conceded in that letter that he had been driving a motorcycle since the past 2 years, though without licence, and that he was not prepared to do so any longer as it was against the law. The company, by its letter, dated 15th September. 1976 allowed one month's more time to Mohammad Hayat to obtain a licence to drive a motor-cycle. It appears that he did not obtain such a licence, ad consequently, on 15th December, 1976 the company wrote another letter to Mohammad Hayat giving him a further fortnight's time to obtain a licence from the Traffic authorities to drive a motorcycle. To this final letter, Mohammad Hayat replied by his letter, dated 17th December, 1976 wherein he enquired under what law he was required to obtain licence to drive a motorcycle. He also annexed with the said reply a copy of his letter, dated 23rd December, 1976 wherein he has complained that he had been performing outdoor duties with great responsibility although it is very hard and dangerous because he was driving motorcycle without licence or insurance which are very essential. In the said reply, Mohammad Hayat further stated that on 3 occasions he was caught by the Police in the offence of driving without licence which fact is known to the company. It was after receipt of this final refusal on the part of Mohammad Hayat to obtain a driving licence in respect of a motorcycle that orders of termination of his services, dated 23rd December, 1976 were issued.
7. An examination of the above correspondence establishes that the reason for the termination of services of Mohammad Hayat was that since he had no licence to drive a motorcycle and was not even prepared to obtain it, he could not perform his outdoor duties, which involved the frequent ridine of a motor-cycle, and, therefore, his utility to the company was greatly diminished. The appellant establishment could not lawfully direct Mohammad Hayat to obtain a licence to drive a motorcycle, and, therefore, the query of Mohammad 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 motorcycle was valid. It was evidently a realization of this position that made the appellant establishment to drop the idea of taking disciplinary action against Mohammad Hayat for alleged misconduct. The termination orders, however, were not on the basis of any act of misconduct committed by Mohammad 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 on record that the duties of Mohammad Hayat included outdoor duties, requiring the use of a motorcycle or other vehicle. This is clear not only from Mohammad Hayat's own admission in his letters to the appellant establishment, particularly his letters, dated 20th February 1976 and 17th December, 1976, wherein he has admitted frequently driving a motorcycle in the discharge of his outdoor duties, but also from (1) his very letter of appointment, which specifically states as one of his duties, outdoor 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 Mohammad Hayat to Grindlays Bank, (3) the vouchers/cash memos for repairs of motorcycles by Mohammad Hayat, which appear at pages 305, 307, 309. 111 and 313 of the record of the learned Labour Court and (4) the several slips from Mohammad 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 Mohammad Hayat to perform outdoor duties and for this work he had either to use a motorcycle or where it was not possible for him to do so, either due to non-availability of the motorcycle or by reason of the nature of articles which he was required to deliver to use some other transport. Since Mohammad Hayat, despite the fact that he had been making use of the company's motorcycles 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 motorocyce, although given adequate opportunity by the company to do so, in my opinion the appellant establishment B 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 an unwanted workman. As already pointed out, repeated opportunities were afforded to Mohammad Hayat to obtain a driving licence, but he declined to obtain one, for reasons best known to him. This shows that Mohammad Hayat was adopting an unreasonable attitude. In any case, the company's requirement was a person who was able to drive a motorcycle and to make use of the company's motorcycles. 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 Mohammad 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 interview.
8. I also find no substance in the contention of Mohammad Hayat that he was victimized for his Trade Union activities. No doubt, he was at one time the General Secretary of the respondent- Union. However, he had ceased to be the General Secretary of the respondent-Union prior to 1972, as admitted by him in his cross-examination before the learned Labour Court. It is highly unlikely that the appellant establishment would have decided to take action against him for his Union activities more than 4 years after he had ceased to be an office-bearer of the Union. In any case, the evidence on record establishes that his services were terminated not by reason of his Union activities but by reason of the fact that he could not possibly perform satisfactorily his outdoor duties, which were an essential part of his duties, by reason of his not possessing and not wanting to possess a driving licence, and, therefore, being unable to make use of the 2 motorcycles of the appellant company. The Company accordingly was perfectly justified under clauses (I) and (3). Of Standing Order 12 to terminate his services.
9. The upshot of the above discussion is that the impugned order of the learned Labour Court is set aside and the appeal is allowed. PLD 1964 Kar. 377 1962 PLC 12381 2