' ANWAR ZAHEER JAMALI, C.J.---Through this civil appeal, with leave of the Court, the appellant impugns the judgment dated 25.9.2012, passed by a learned Division Bench of the High Court of Sindh, Karachi in C.P. No, D-2940 of 2011, whereby the concurrent findings of respondents Nos.2 (Sindh Labour Court No,2, Karachi) and 3 (Sindh Labour Appellate Tribunal, Karachi), contained in their respective judgments dated 22.8.2005 and 24.8.2011, were set aside and consequently the grievance petition under section 46 of the Industrial Relations Ordinance, 2002 (in short "the IRO 2002"), filed before respondent No,3 on 04.3.2004, was dismissed.
2. Succinctly, the relevant facts of the case are that on 15.11.2001, respondent No,1 (M/s. Glaxo Smith Kline Pakistan Ltd., etc.) had issued a detailed show cause notice to the appellant, stating the facts that how during the years 1991 to 2001, he had been found habitual late comer and his delayed arrival has been marked on 223 days. Further reference was made to the advisory letters issued to him in this regard during the same period on 26 occasions. In the reply to the show cause notice, submitted by the appellant, he did not deny the factum of such delay in his attendance, but tried to justify it for different reasons. Being dissatisfied with his reply to the show cause notice, respondent No,1 held inquiry against him, and finally in view of the findings of the inquiry officer, on 23.12.2003 he was dismissed from service with immediate effect.
3. The appellant being aggrieved, availed the remedy before the Respondent No,2 by filing an application under section 46 of the IRO, 2002, which was strongly resisted by respondent No,1, both on factual and legal plane. However, after recording of parties' evidence, this application was allowed by respondent No,2 vide its judgment dated 22.8.2005 in the terms that the appellant was ordered to be reinstated in servite with full back benefits.
4. Respondent No,1, being aggrieved by the judgment passed by respondent No,2, challenged it before respondent No,3 through an appeal under section 47(3) of the IRO 2002, which was contested by the appellant and eventually dismissed on 24.8.2011. Such judgment of respondent No,3 was then challenged by respondent No,1 before the High Court of Sindh, Karachi through a Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which was instituted on 29.8.2011.
5. This petition, after due contest between the parties was allowed vide impugned judgment dated 25.9.2012, precisely, for the reason that the learned Division Bench in the High Court came to the conclusion that there was sufficient material available on record to indicate that the appellant was a chronic, continues, frequent and habitual late corner and in such circumstances, the extreme action taken against him by the respondent No,1 was fully justified, while the concurrent findings of the two Courts below, challenged before it, were based on misreading of relevant record and wrong legal notion.
6. We have heard Mr. Shahnshah Hussain, learned ASC for the appellant and Mr. Muhammad Humayun, learned ASC for respondent No,1, and with their assistance carefully gone through the material placed on record by both the parties.
7. The short point, which is the crux of whole controversy, is that whether a person, who admittedly continued to come late on his duty on 223 occasions during the period of ten years and failed to improve his conduct despite issuance of 26 advisory notice/letters to him in this regard, is not a habitual late comer and whether such negligent conduct on his part could be condoned by the Court to the prejudice of his employer, the respondent No, 1 .
8. In the above context, Mr. Shahnshah Hussain analyzed the admitted facts of the case and contended that in a situation where appellant was found coming late on his duty approximately twice a month, it cannot be said that he was a habitual late corner, so as to entail penal consequences of such conduct on his part.
9. As against it, the submission of Mr. Muhammad Humayun, learned ASC for respondent No,1 was that these facts are sufficient to reflect the mindset of the appellant that he was least bothered about the interest of respondent No,1, more so, as during the relevant period, he was warned in this regard by as many as 26 advisory letters, but still he failed to improve his punctuality and thus, found guilty of misconduct, as visualized in Standing Order 15(3)(f) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
10. We have carefully considered the submissions of the learned ASCs and in the context of their submissions, minutely examined all the material placed on record. In order to demonstrate the grievance of respondent No,1 against the appellant qua his conduct, it will be useful that in the first place, contents of the show cause notice dated 15.11.2001 are reproduced in extenso, which read thus:- "Glaxo Wellcome IR(F)-115/1091 15th November, 2001.
Mr. Shahid Pervaiz, P.S No,2235, Charge Hand, Engineering Deptt-F/268.
Dear Sir, SHOW CAUSE NOTICE It has been observed from your attendance record that you are in the habit of attending duty late.
During January, 1991 to September, 2001, you had attending duty late as details given below.
Besides, during the period prior to January, 1991 also you attended duty late.
Months Year Dates with Arrival Time in morningNos. of occasion Late during the month January 1991 2(9:00), 6(8:36)2 March 1991 17(7:06) 1 August 1991 12(9:00), 20(8:35), 22(8:40)3 September 1991 17(8:33) 1 October 1991 8(9:05), 24(8:40)2 November 1991 12(8:45) 1 December 1991 23(9:15) 1 January 1992 9(9:10) 1 March 1992 8(7:56), 10(7:43)2 May 1992 4(9:10), 25(8:40)2 June 1992 10(8:40) 1 July 1992 5(8:40), 23(8:35)2 November 1992 2(8:35), 22(8:35)2 December 1992 2(8:55), 22(8:32)2 January 1993 17(8:36) 1 February 1993 25(8:06) 1 March 1993 2(7:47) 1 April 1993 14(8:45) 1 May 1993 24(8:45) 1 July 1993 6(8:38), 18(8:35), 21(8:42), 28(8:31)4 August 1993 24(8:35), 26(8:32)2 September 1993 1(8:31), 8(9:15), 19 (8:31), 26(9:00), 30(8:32)5 October 1993 21(8:46) 1 December 1993 5(8:31), 9(8:32),4 23(9:20), 27 (8:35)
January 1994 23 (8:37), 27 (9:25), 31 (8:50)3 February 1994 1(8:40), 17(8:45), 22(7:55)3 March 1994 2(8:35), 10(8:20)2 April 1994 3(8:34) 1 May 1994 10(8:40) 1 July 1994 21(8:45) 1 August 1994 1(8:45), 15(8:35), 24(8:50)3 September 1994 8(8:50), 26(9:20)2 February 1995 12 (8:03), 28 (8:25)2 March 1995 1(8:15), 15(8:48)2 April 1995 25 (8:50), 27 (8:38)2 May 1995 29(9:20) 1 June 1995 12(9:10), 14(8:55)2 July 1995 17(9:15), 18(9:20)2 August 1995 1(8:40), 15(9:15), 30(8:40)3 September 1995 7(8:56), 17 (8:47), 28(8:35)3 October 1995 2(8:35), 24(8:40), 25(8:50), 31(8:50)4 November 1995 6(8:34), 15(8:33), 16(8:32)
19(8:32)4 December 1995 12(8:55), 24(8:55)2 January 1996 3(8:850), 8(8:52),4 9(8:32), 25(8:45)
February 1996 6(8:42), 15(8:00), 29(8:40)3 March 1996 5(8:40) 1 April 1996 10(8:32), 24 (8:30)2 May 1996 8(8:21), 21(8:30)2 June 1996 25(8:21) 1 July 1996 3(8:30), 22(8:35), 28(8:35)3 August 1996 26 (8:25), 27(8:50)2 September 1996 2(8:35) 1 December 1996 12(8:23), 17(8:50), 29(8:23)3 January 1997 5(8:45), 12(8:35), 19(8:20), 29(7:58), 30(8:20)5 February 1997 13(8:35) 1 April 1997 30(8:55) 1 May 1997 13(8:40), 30(8:25)2 June 1997 5(8:30), 9(9:13), 29(8:30), 26(8:25), 30(8:25)5 July 1997 8(8:35), 11(8:30), 21(9:12), 22(8:21)4 August 1997 8(8:25), 12(9:03), 20(9:07)3 September 1997 12(8:55), 18(8:30)2 October 1997 13(8:40), 22(8:30)2 November 1997 3(8:25), 12(8:30),4 21(8:22), 28(9:05)
December 1997 24(8:45), 31(7:55)2 January 1998 2(7:37), 5(8:25), 8(8:10), 14(8:00), 20 (7:42)5 February 1998 11(9:10), 27(8:40)2 March 1998 6(8:27) 1 April 1998 2(8:45), 14(8:28), 20(8:45)3 May 1998 11(8:30), 27(9:00)2 June 1998 12(8:22), 24(8:35)2 July 1998 13(8:21), 22(8:22)2 August 1998 7(8:35), 27(8:22)2 November 1998 30(9:00) 1 December 1998 11(8:30), 31(8:00)2 January 1999 4(8:25), 6(7:40), 12(7:40)3 February 1999 18(8:35), 24(8:50)2 March 1999 5(8:35), 11(8:35), 24(8:25)3 April 1999 21(8:25) 1 May 1999 6(8:35) 1 June 1999 11(8:40), 29(9:13)2 July 1999 13(8:40), 19(8:38)2 August 1999 25(8:35), 30(8:21)2 September 1999 1(8:25), 13(8:25)2 October 1999 1(8:30), 4(8:30),4 13(9:14), 29(8:21)
November 1999 26(8:25) 1 December 1999 2(8:25), 13(8:10), 20(8:05)3 January 2000 3(8:20) 1 February 2000 2(9:00), 24(8:45), 29(8:35)3 April 2000 7(8:21), 10(8:25)2 May 2000 2(8:55), 23(8:22), 24(8:28)3 June 2000 28(8:23) 1 July 2000 19(8:25) 1 August 2000 7(8:40), 15(8:50), 28(8:25)3 September 2000 1(8:22), 6(8:35)2 October 2000 20(8:50), 24(8:55), 30(8:55)3 November 2000 1(8:25), 7(8:25), 16(8:30)3 December 2000 5(8:25), 13(7:55), 26(7:40)3 January 2001 15(8:55) 1 February 2001 20(8:35) 1 April 2001 6(9:10) 1 May 2001 4(9:10) 1 August 2001 13(8:30), 22(8:25)2 September 2001 18(8:28), 21(8:32)2 During the above period, you were also given the following advisory letters advising you to improve your attendance which were acknowledged by you but you did not pay any heed to it.
LETTER NO. DATE PER/IR.T13/087 15-9-1991 PER/IR.T13/2404 28-8-1993 PER/IR.T13/287 25-10-1993 PER/IR.T14/898 1-2-1994 PER/IR.T14/1011 22-2-1994 PER/IR.T13/1229 27-3-1991 PER/IR.T13/2561 24-9-1994 PER/IR.T13/969 26-9-1995 PER/IR.T13/1065 22-10-1995 PER/IR.T13/1154 25-11-1995 PER/IR.T13/1263 23-12-1995 PER/IR.T13/146 25-2-1996 PER/IR.T13/333 21-3-1996 PER/IR.T13/154 22-1-1997 PER/IR.T13/249 25-2-1997 PER/IR . T13/870 15-8-1997 PER/IR. T13 /977 19-9-1997 PER/IR.T13/1284 24-12-1997 PER/IR.T13/437 18-5-1998 PER/IR.T13/128 25-2-1999 PER/IR.T13/881 18-11-1999 HR/IR. 96/206 16-3-2000 HR/IR.096/444 20-6-2000 HR/IR.96/672 14-9-2000 HR/IR. 096/855 17-11-2000 HR/IR. 096/66 17-1-2001 Inspite of the above, you did not desist from late attendance and again attended duty late on October, 2001 upto 19th 15(8:26), 19(8:30).
Your above act of frequently attending duty late is habitual in nature and is not only highly objectionable/irregular but also adversely affects the work and discipline of the company which constitutes misconduct under Standing Orders 15(3)(e) to the Schedule of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as amended update.
You are hereby called upon to explain your position, in writing, within 48 hours of the receipt of this Show Cause Notice as to why disciplinary action should not be taken against you as per law.
Yours faithfully, Glaxo Wellcome Pakistan Ltd., Sd/- Muhammad Hanif Manager, Industrial Relations/ Notified Factory Manager."
11. The contents of above document as regards 223 instances of late coming attributed to the appellant are not denied by him in his reply, nor the receipt of advisory letters, as detailed in its second part. This being the admitted position, now the only point which requires further consideration is that what could be the criteria for an establishment to categorize a person as habitual late comer and whether late coming of an employee approximately twice a month is to be ignored as of right, more particularly, in the circumstances when in the form of advisory letters on 26 occasions, he was warned to desist and discontinue such practice, but to no avail.
12. The perusal of the impugned judgment of the High Court reveals that this moot point of the controversy has been discussed in detail with reference to various case law on the subject and the connotation of the words "habit" and "habitual". After going through the impugned judgment, we cannot resist, but to say that cogent and valid reasons, based on proper appreciation of tactual and legal aspects of the case, have been recorded by the High Court in order to fully justify its conclusion that the punishment awarded to the appellant by respondent No,1 was neither illegal nor arbitrary, but according to the spirit of the law (Standing Order 15(3)(f)) (ibid). The learned ASC for the appellant, during his arguments, could not show or convince us that such conclusion recorded in the impugned judgment is misconceived or contrary to the well settled principles of law.
13. As a sequel of above discussion, this appeal is dismissed. However, before parting with this judgment, we may observe that on 16.7.2015, the respondent No,1 has submitted a statement in writing before the Court as a proposal for resolution of this dispute. Such, statement is reproduced as under:- "STATEMENT In compliance of the order dated 15-07-2015 passed by this Hon'ble Court in the matter, on instructions received from the Respondents client's, following has been agreed without prejudice and creating any precedence, as under:- .
That the dismissal order dated 23-12-2003 of the Petitioner's on submitting application for conversion shall be converted into termination simplicitor w.e.f, 27-12-2003 and in consequences thereof shall be paid all admissible terminal benefits.
This shall not create any precedence or practice in this case or any other case in the establishment of the Respondent Company."
14. Thus, the appellant, if so advised, may approach respondent No,1 to avail the benefit of above offer by filing an application before respondent No,1 to this affect. We expect that respondent No,1, being a Company of international repute, will abide by their commitment/ statement before the Court, as reproduced above.
15. Foregoing are the reasons for our short order dated 22-10-2015.