DECISION This appeal is, directed against a decision of the learned Fourth Labour Court, given on 18:.3-1982, dismissing the appellant workman's grievance petition challenging his dismissal from service by the respondent-Company.
2. The admitted facts of the case are that the appellant was originally appointed in the respondent-Company with effect from 16-4-1970 as a sweeper. He was litter on promoted as Pantryman with effect from 1-1-1978. It appears that in the early part of 1980 the appellant proceeded to Hong Kong on a free ticket allowed by the respondent-Company. He returned to Karachi through Swissair on 3-3-1980. On the same day a Swissair catering van, which had attended the flight by which the appellant had returned from Hong Kong, was stopped and searched by the Custom authorities. The search of the van disclosed certain imported articles such as transistor, radios, cassette players etc., for which no duty had been paid. These goods are said to have been concealed in the tiffon trollies of the certain van. The; van was being driven by driver.
Haroon, while Panrty-- men Yaseen and Gulzar were incharge of the same. On enquiries from them. The Custom Officers were informed that these goods had been handed over to them by the appellant who had just arrived by Swissair aircraft from Hong Kong. The Custom authorities, thereupon, contacted the appellant who admitted that he had brought the seized goods for Pantry-- man, Gulzar and the same were handed over by him to Gulzar on his arrival from Hong Kong to Karachi. The Custom authorities, thereupon, served a show-cause notice upon the appellant as well as Haroon, Gulzar and Yaseen. On 10-5-1980, the Assistant Collector of Customs Incharge of the Karachi 1kirport. Passed an order under the Custom Act, confiscating the seized goods and administering a warning to the appellant and the three persons incharge of the catering van. No appeal against the said order admitted has been filed by the appellant or his colleagues. In the meanwhile, on t9-3-1980, a show-cause notice was issued to the appellant and his three companions in respect of the incident on 3-3-1980, On 21-9-1980, after the appellant and his companion had been administered warning by the Custom authorities and the seized goods had been confiscated, the management informed the appellate and his three companions that it had been decided to hold an enquiry against them in respect of the seized. Goods and the Deputy Manager (Pakistan), M. H. Bhappu, had been appointed as Enquiry Officer.
3. The enquiry was held on I1-11-1980, on which date the appellant and his three companions appeared before the Enquiry Officer and requested that Mr. Zah it Hussain, the General Secretary of the Workers' Union, be allowed to assist them in the enquiry. It was further decided that there would be a joint enquiry against the appellant and his three companions and that the enquiry proceedings would be conducted in English as well as Urdu. At tree request of the appellant he was supplied by the Enquiry Officer with copies on the show-cause notice issued to him by the Custom authorities, the order of Appellant Collector Customs, the charge-sheets by the company and reply to the said charge-sheet. The enquiry proceedings thereafter, were adjourned to 15-11-1980. On the same day, Mr. Sayer, the Catering Manager of the company was examined and cross---examined at considerable length by the appellant and each of his three companions. As his cross- examination was not concluded on the said date, the enquiry proceedings were adjourned to 8-12- 1980. One the latter date the cross-examination of Mr. Sayer was continued but as the Enquiry Officer disallowed a few questions sought to be put to Mr. Sayer regarding the alleged illegal activities of an employee of the company, Mr. Ruppli, and ex-employee of the company, Amatud, the appellant and his three companions walked out of the enquiry proceedings at the instance of the co-worker nominated by them to assist them in the enquiry. The appellant and his companions requested the management to change the Enquiry Officer but this request was not allowed. The Enquiry Officer, therefore, concluded the enquiry proceedings ex parte against the appellant and his three companions. On the basis of the Enquiry Officer's report the appellant was dismissed from service vide order, dated 25-4-1981.
4. Before the learned Labour Court it was contended that the order of dismissal in respect of the appellant, who was an office-bearer of the C.B.A. In the respondent Company, was invalid as it was passed during the pendency of industrial dispute proceedings. This contention was rejected by the learned Labour Court as the industrial dispute in question was admittedly dismissed by the learned Labour Court on 19-4-1981, while: the dismissal orders in respect of the appellant were passed six days later, on 25-4-1981. The learned Labour Court has taken due notice of the fact that the appeal against his order dismissing the application in respect on the industrial dispute was filed before the Tribunal but as the said appeal was filed on 18-5-1984, after the orders of dismissal, dated 25-4-81, were passed, that the learned Labour Court rightly held that no industrial dispute was pending either before him or before this Tribunal at the relevant time.
5. It was contended before me by Mr. Riaz Hussain Baloach, the learned counsel for the appellant that no proper opportunity of defence was given to the appellant in the domestic enquiry From the recital of the facts it has been shown that the Enquiry Officer gave every possible facility or defence to the appellant but he and his companions unreasonably walked; out from the enquiry proceedings and bycotted the same when the Enquiry Officer dis--allowed questions not connected with the Enquiry proceedings before him. A perusal of the enquiry proceedings shows that the examination and cross--examination of the respondent's Catering Manager, Mr. Shyer, covers twelve typed pages. The patience of the Enquiry Officer and his desire to provide the appellant with every opportunity of defence is manifested by the fact that though the appellant and each of his three companions that practically the same questions to Mr. Sayer the Enquiry Officer allowed the same The appellant, thus, has to thank himself for the reradiating part of the enquiry proceedings being held ex parte.
6. It was next submitted by Mr. Riaz Hussain Baloch that the appel--lant had in fact paid duty for the articles which he had brought with himself from Hong Kong and had produced before the authorities the payment receipt. Duty, however, was paid by the appellant only in respect of the articles which he declared before the Customs authorities and not in respect of the articles which were being smuggled out in the catering van. If duty had been paid in respect of these items, there was no need to conceal them in the tiffon trollies of the catering van. Moreover, no payment receipt in respect of these items was produced.
7. It was next argued by Mr. Riaz Hussain Baloch that the appellant was only administered a warning by the Assistant Collector, Customs and a warning is not deemed to be a punishment under the Customs Act. We are, in these proceedings, not concerned with the question whether the Customs authorities imposed any punishment on the appellant or not. What we have to see is whether there is evidence to establish misconduct on the part of the appellant. The order of the Assistant Collector, Customs, shows that not only the companions of the appellant but the appellant himself had admitted that he had brought the seized articles with himself for Pentryman, Gulzar and he had handed over the same to him. Since these articles were sought to be passed through the customs without duty, the appellant and his companions were clearly indulging in an act of smuggling. It may further be pointed out that confiscation of the goods is one of the penalties prescribed under the Customs Act and this penalty was actually imposed in the instant case.
8. As the saized goods were sought to be illegally passed through the customs in the catering van of the company, the appellant obviously appear to have acted unlawfully and dishonestly in connection with his employer's property and also committed a grave act subversive of discipline.
9. For the reasons discussed by me above, I am of the view that the learned Labour Court rightly dismissed the grievance petition of the appel--lant. I would, accordingly, dismiss the same in limine.