DECISION ' This appeal is directed against the order, dated 22nd October, 1984 passed by the Sind Labour Court No, V at Karachi. The. Acts which relate to the instant appeal are that the appellant.
Muhammad Ismail was employed as Assistant Fitter and a permanent workman in the respondent establishment getting a salary of Rs, 550. The allegation was that he did overtime work up to May, 1982, but he did not receive the overtime. He complained to the management which required him to resign. He did not resign, therefore, he was served with a verbal order that he is dismissed. The stand taken by the respondents is that he was not dismissed nor his services were terminated but he remained absent from the duties eversince. The respondents have reiterated that there was no dispute of overtime nor the appellant ever did any overtime.
' In the Labour Court, affidavit Exh. 3 was filed by the appellant and the respondents filed affidavit Exh. 4 of one Iqbal Ahmad, Manager of the Mills. Both were cross-examined. The learned Labour Court struck two issues, namely, (1) whether the appellant was not paid overtime ; and (2) whether the appellant was illegally dismissed. He came to the conclusion considering the evidence on record that he did not do overtime and he has no cause of action.
3. I have heard the learned counsel, Mr. S. Safdar Hussain for the appellant and Mr. Suleman Habibullah for the respondents.
4. The registers and the attending register do not mention that the appellant did overtime. These registers are maintained by the management. They have not shown overtime earned by the appellant. The only fault of the appellant is that he did not substantiate this by an independent evidence brought on record before the Labour Court. The registers are maintained by the management, hence, they carried no entries as regards the overtime. The appellant in his grievance application has mentioned that he was asked to resign but he did not do so. Therefore, verbally he was dismissed. This point is got to be considered. If he voluntarily remained absent from duties then why did he submit grievance petition. There is something more than meets eye.
The reason is not shown by the Management as to why he remained absent and deserted his duties. All the same he made a grievance petition before the Labour Court is a circumstance that gives rise to a presumption that he was in fact asked to resign which he did not do and met with the fate of verbal dismissal. In the arguments.
5. The brief facts are that respondent No, 3 Fazal Karim was employed as Audit Assistant in the petitioner Corporation. On 12th Mardh, 1978 he informed the management vide his letter Annexure 'A' that he will not attend the office as his immediate boss, namely, Bashir Ahmed, Internal Auditor, had advised him not to do so as there was danger to his life. The General Manager of the Corporation, who is appointing authority, on 14th March, 1978 sent a letter to respondent No, 3 asking him to resume duty and informed hire that if he had any reasonable apprehension, he could have brought the matter to the notice of higher authorities, in writing for remedial measures.
It was stated that there was no justification for unauthorised absence. He was also directed to report for duty. On the next day, respondent No, 3 sent a reply addressed to Chairman Roti Corporation/Managing Director. The General Manager again on 20th March, 1978 called upon respondent No, 3 to report for duty, but he failed to do so. He had been informed that his continuous absence and unauthorised leave amounted to disobedience of the lawful orders of the Management and would render himself liable to appropriate disciplinary action. Respondent No, 3 failed to report for duty and remained absent from 12th March, 1978 to 22nd March, 1978 without due sanction of leave. Then respondent No 3 was served with charge-sheet dated 22nd March, 1978 for unauthorised absence from duty, disobedience, of reasonable and lawful orders of the competent authority and for making false and baseless allegations of danger to his life at the hands of superior officers with ulterior motive of defaming and harassing the mangement. The charge-sheet was replied to by respondent No, 3 on 27th March, 1978 justifying the absence. His main plea was that he was obliged to obey the orders of his immediate boss i,e, Internal Auditor.
His further plea was that the authorities were fully aware of the facts. The management found the reply to be unsatisfactory and ordered for holding an inquiry. Respondent No, 3 was thus asked to appear before Mr: K. M. Rehman, Inquiry Officer on 8th April, 1978. Respondent No, 3 was served, but he failed to appear. However, he sent a letter dated 5th April, 1978 that he was unable to attend the office even for the purpose of inquiry because his boss was not ready to take the responsibility of safety of his life. Thereafter, the management made several efforts to procure the attendance of the petitioner including sending him telegrams and communications through special messenger and an ex parte inquiry was thus held by the Inquiry Officer who after recording of evidence held respondent No, 3 guilty of misconduct and submitted the inquiry report.
6. Thereafter, respondent No, 3 was given a show-cause notice, dated 18th April, 1978 to show cause why he should not be dismissed from service. He was also invited to see the General Manager at any time during the working hours within a period of three days. He was also sent a copy of the inquiry proceedings. Respondent No, 3 sent a reply to the show-cause notice giving his own version of the matter as initially taken up by him. Respondent No, 3 was accordingly dismissed from service vide management's letter. Dated 25th April, 1978 issued by the competent authority i,e, General Manager (Administration and Coordination).
7. Respondent No, 3 aggrieved by the action of dismissal sent a grievance notice to the management which was received on 26th June, 1978 and was replied to by the management vide letter, dated 3rd July, 1978. The employee thereafter had resort to provisions of section 25-A of Industrial Relations Ordinance before the Punjab Labour Court No, 1, Lahore, which was accepted by the Labour Court on 9th July, 1979 on the view that absence of the employee was on the directions issued to him by his immediate boss Internal Auditor and that the General Manager could not be a judge in his own cause. The petitioner then appealed before the Punjab Labour Appellate Tribunal which dismissed the appeal vide impugned order, dated 12th June, 1982.
9. Learned counsel appearing in support of the writ petition argued that there was no material proper before respondents Nos, 1 and 2 for assuming or recording any finding that the competent authority in the case, namely, Abdus Sami was acting as a Judge in his own cause. The learned counsel relying on the grievance petition filed by respondent No, 3 before the Labour Court contended that there was no specific allegation levelled against the competent authority which passed the order against the petitioner and that the allegations were levelled against Mr. Aslam Iqbal, Managing Director of the said Corporat ion and his so-called clique of officers which have not been specified. In such a situation, there was no warrant for the presumption that the competent authority Mr. Abdus Sami was also a person who was either inimical to respondent No, 3 or was a member of clique.
10. We have gone through the grievance petition filed by respondent No, 3 before the Labour Court and indeed we find that the submission of the petitioner has substance. In such a situation, therefore, the view of the tribunals below that the proceedings should have been taken by a person, above the General Manager, who was none else than Mr. Aslam Iqbal, Managing Director against whom specific allegations are levelled constitutes a patent error of approach. It has also been proved on the record that respondent No, 3 and his immediate superior Bashir Ahmed Internal Auditor were related to each other. It will be interesting to note that Bashir Ahmed himself was also not attending his duties and absenting.
11. After having gone through the entire record, we have reached the conclusion that even otherwise the plea of apprehending danger remains unsubstantiated despite invitation from the competent authority to see him and to apprise him of the situation. Respondent No, 3 has been acting as a tool at the instance of his relative Bashir Ahmed who appears to have his own axe to grind. The conclusion is also irresistible that the petitioner has deliberately despite repeated opportunities elected not to participate in the proceedings. It cannot, therefore, be said that the petitioner was unjustifiably proceeded against ex parte. The plea also does not inspire confidence in view of the fact that according to the findings of the tribunals below, this remains unsubstantiated. There is inherent fallacy in the order of Labour Court when it observes that before conducting inquiry it was necessary to remove the said danger. "May be that was actual or supposed one." If in point of fact there was no danger, there arose no question of removing the same. Respondent No, 3 was required to establish as a fact that the plea of danger was not imaginary or put up. This aspect of the matter even according to the Punjab Labour Court No, 1, Lahore was begging for proof. The proceedings of inquiry or order of dismissal, therefore, passed by the competent authority could not have been struck down on the basis of a supposed apprehension of danger which had not been shown to have any factual existence. The Punjab Labour Appellate Tribunal also fell the same error of approach from which the Labour Court suffered in forming the view that the proceedings should have been taken against respondent No, 3 by the Managing Director, namely, Aslam Iqbal. However, a reading of the grievance petition filed under section 25-A of the I. R.
0. Shows that allegations were levelled by respondent No, 3 against the Managing Director and none else. The view of the Punjab Appellate Tribunal, therefore, that in the case of respondent No, 3 only the Managing Director should have been asked to take action is wholly unsustainable and unwarranted in law. Similarly the Punjab Labour Appellate Tribunal has also strangely held in his impugned order that it was not necessary to give a finding that actually there was a danger to life.
Despite having taken this view, it has been held that the failure of the Management to give assurance of safety justified entertainment of the apprehension of danger.
12. We consider it unnecessary to dwell at length on the other pleas raised by the learned counsel for the petitioner because the findings corded by the tribunals below are sufficient to vitiate the impugned orders.
' In view of what has been stated above, we would accept this writ petition and declare the impugned orders to be without lawful authority and of no legal effect. In the circumstances of the case, there shall, however, be no order as to costs.