JUDGMENT Fafak Sher, J.-This order will dispose of writ petitions Nos ; 3290/ 86, 329i/86 3292/86 and 3293/86, since a common question of lew is involved in >1 the four cases and all these four writ petitions emanate out of the same impugned erder, passed in appeal by the Punjab Labour Appellate Tribunal dated .4- -196. The short legal question involved in these cases is as to whether in view of the provisions enshrined in Section 17 (1-B) of the Pakistan Water & Power Deveh pmer t Authority Act, i958, read with section 4(1) of the Service Tribunal Act. 19/3, the Punjab Labour Appellate Tribunal and the Labour Court, Lahore hod the jurisdiction to entertain and adjudicate upon the matter Vide order dated 8-11-1986, passed by this Court, respondent No. 1 was required to put in appearance and to come prepared to argue the main case. Mian Mehmood Hus *in, Advocate, learned counsel for respondent No. 1, in all the cases, bas appeared.
Are that respondents, in all th fonre cases, were suspended on aceount of charges of misconduct, The suspension orders, in all the four cases, were implemented and given effect to. The learned counsel for respondent No. 1, Mian Mahmood Hussain, has advanced an argument that suspension order is not a final order ; therefore, does not fall within the mischief of section 4(1) of Service Tribunal Act, 1973 thus the Service Tribunal had no jurisdiction and the proper forum wa< a recourse by way of petition under section 25-A of the Indust ial Relations Ordinance, <969. And consequently ; an appeal to the Punjab Labour Appellate Court. On the other hand, learned counsel for petitioner says that in view of section 17(i-B) of The Pakistan W\PD\Act, 1958, respondents are civil servants and suspension irder *>eiau necessary term and condition of service, which on account of its implementation, had attained finality ; thus squarely falls within the jurisdiction of Service Tribunal within the meaning of section 4(11 thereof. In this connection, reliance has been placed on the case of Muhammad iadiq Khokkar v. Engineer in Chief Pakistan Army and others, reported in NLR 1979 (Service), S.C. Page, 99, wherein their Lordships in the Supreme Co in have held that a suspension order, once implemented, attains finality within the meaning of section 4(1) of the Services Tribunal Act, 1973.
3. In view of the above judgment, I hold that since suspension orders passed in the instant cases, stood implemented, thus attained finality within the meaning of section 4(1) of the Service Tribunal Act, 1973, There is no controversy that "suspension'* is a necessary term and condition of service.
There is equally no controversy that respondent No. l, in all these petitions, falls within the definition of civil servant as contemplated by section 17(1-B) of the Pakistan W \PDA Act, 1958. In this view of the matter, I hold that the two Courts below had no jurisdiction to entertain and adjudicate upon the matter ; therefore, the impugned orders are set aside, being eoram non judiee. Accordingly these writ petitions are allowed. There shall be no orders as to costs, K.L.l,1987 Labour and Service 217 [Lahore] Present I Muhammad Afzal Lone and Zia Mahmood Mirza, JJ.
MUHAMMAD ATTIQUE WARSI versus THE MANAGING DIRECTOR KAKAKHAIL INDUSTRIES etc. W. P. No. 4162 of 1983, decided on 12th October, 1986.
(a) Industrial Relations Ordinance (1969) --S. 25-A-Petitioner dismissed from service on counts of dishonestly performing his duties and gross negligence-Labour Court ordering the reinsta ement in service without back benefits- However Appellate Tribunal setting aside such order. (Para. 1)
(b) Constitution of Pakistan (1973) ---- Art. 199 and Standing Orders Ordinance (1968)-S. 15 (3) (0-Peti- petioner challenging his dismissal order in writ jurisdiction on premises (hat a single act of negligence attributed to him-There being no evidence of his habitual negligence-Hence no misconduct on his part-J5fcW ; Pica not accepted--Petition being without merit-Dismissed. (Para. 4)
For the Petitioner : Muhammad Zaman Qureshi Advocate.
For the Respondents ; Muhammad Asad Ullah Siddique Advocate.
For the Respondent No. 1 ; Nemo.
Date of hearing : 12th October, 1986.
Muhammad Afzal Lone, J.-The petitioner vas serving as a Oil Storage Clerk in Kaka-Khan Industries, Faisalabad. He was proceeded against on the allegation that he performed his duties dishonestly and committed gross negligence. By order dated 20-9-1981, respondent No. 1 dismissed the petitioner from service. He challenged this dismissal under section 2S-A of the I R.O, The Labour Court on 12-12-1981 ordered the petitioner's reinstatement but without payment of back benefits.
The management then preferred an appeal. It succeeded. The learned Punjab Labour Appellate Tribunal, vide order dated 13-8-1983, set as aside the order of the Labour Court and dismissed the petitioner's grievance petition He has now invoked the writ jurisdiction of this Court. We have heard the learned counsel for the parties and examined the record. The charges levelled against the petitioner, embodied in the show cause notice (Annexure 'A') are as under :- "Reference decantation of Bowzers received on 16th August, 1981, in your duty hours I.e. 2.00 p,m. To to.Ot p m. Neither you checked the dips of the Bowzer nor the Storage Tank after decantation you have entered the dip of Storage Tank No. 11 as ll'-8"-3", without physically measuring the dip. After decanting the Bowzers specially Bowzer No. 830180 allowed its clearance without checking its no oil position. On morning 17th August, 1981 while cheeking the dip of Tank No. 11 it was found that the dip entered in record was wrong and actually it was il'-3"-0", against li*-8"-3", recorded and oil was found short by approximately 5.00 M. Tons. The Bowzer No. 830180 standing near FDA Office was checked and it was found that it contains about 5.00 M.Tons Edible. The Bowzer was again brought to Mills and the oil was decanted. This appears that you did not perform your duties honestly and committed gross negligence".
2. The inquiry was held into these charges and the Inquiry Officer in his report dated 14-9*1981, which covered the case of 3 other employees as well, was of the view that the petitioner left the Mill premises during duty hours without the permission of the competent Authority ; did not personally satisfy himself that the Tanker was emptied and rather in this behalf trusted on in-experienced * Suit" and dishonestly made an overwriting in the register relating to the quantity of the oil in the storage Tanker. In ultimate analysis the Inquiry Officer found the petitioner guilty of gross negligence and opiaed that he should not be posted in a department, where he might inflict a loss of thousands of rupees on the employer. Three things heavily prevailed with the Labour Court, in allowing the petitioner's grievance petition. Firstly, only a single act of negligence was attributed to him and there was no evidence of his habitual negligence. Secondly, son-decantation of the oil- tanker and removal of the oil there from on the following day did not smack of any dishonesty or mala fide intention of the petitioner.
Thirdly, the inquiry was not conducted in accordance with law, inasmuch, the petitioner's statement was recorded before the depositions of the witnesses relied upon by the Management.
The learned Punjab Labour Appellate Tribunal, differed with these findings and maintained that oil worth Rs. 30,000 remained undecanted for which the petitioner was responsible and this act could not be categorised as a simple negligence. According to the Tribunal keeping m view the nature of the act committed by the petitioner the single act in question was sufficient to constitute misconduct. It also took the view ?k J*16 Pctitioo* was fully aware of the actual factual position and the charges against him ; even if his statement was recorded after the statements of the P. Ws, that would not make any difference and improve his cause. The learned counsel for the petitioner has reiterated the arguments which influenced the decision of the Labour Court. He argued that the language of Section i5 (3) (i) of the Standing Orders Ordinace, 1968, only "habitual negligence, or neglect of work" could be treated as misconduct and thus, a single act of which the petitioner was accused of eyen if proved did not fall within the embit cf 'misconduct'. In these circumstances, the learned counsel argued, that the penality of dismissal from service, was not called for and the impugned order merited removal through judicial review, He emphasied that when the petitioner came to know of his omission, he immediately took steps to bring back the oil vriil j Mill premises and got the remaining oil de-caatd, Thus, the Mill did not suffer any financial loss. These facts in the submission of the learned counsel, fully show that the petitioner did not have any dishonest p**,oa-., The view taken up by the learned Tribunal that the recording of the petitioner statement before that of the PWs, did not cause any prejudice to him, was also seriously criticised. On the other hand, on behalf of the Management, their learned eounsel supported the impugned order and sought its sustenance,
3. Negligence is the breach of duty to take due care. It is failure t0 ij ,SOlllet^'n8 which in the circumstance of a case, a prudent man would do. The material on the record fully demonstrates want of due care and attention on the part of the petitioner in the performance of his duties, His omissions and commissions, are to be examined in the light of the attending circumstances of the case. It is well settled that when a conclusion has been reached, on assessment of a number of facts, then soudness of such a conclusion must be adjudicated by evaluating all the facts in their setting in which they are found to exist. It is the petitioner's own admission that he left the Mill during the duty hours. For this, he did not inform his superiors much less to obtain their permission.
He also tempered with the entries in the register in which the quantity of the oil in the Oil storage was recorded. It was the petitioner's obligation to have got decanted the oil tanker but in this respect he placed undue reliance upon an inexperienced Kuli. These facts smack of igross neli- gence of the petitioner. Even if there is no element of dishonesty in the act of the petitioner, that is not of much significance. Loss, which the mill could have suffered is quite apparent. It is a different matter that the petitioner's negligence was detected ; the oil-tanker retrieved and the remaining quantity of oil decanted. If the argument of the learned counsel * ij P8titi?Er is accepted that in order to constitute misconduct there would be habitual negligence or neglect of work, then the petitioner should have the opportunity to repeate his lapses and inflict heavy financial lots on the Mill. Such a situation cannot be allowed to prevail. In fact no employer ean afford it. The teim 'miscon uct* is not defined in the Ordinance and the instances of misconduct given in subsection{3) of Section 15 are not exhaustive. Each cue of misconduct would depend upon its own facts. We hold that upon the facts of the case the Tribunal rightly accepted the Management's appeal, differed with the Labour Court and set aside its order directing re-instatement of the petitioner.
4. We, are, also of the view that the manner in which the petitioner's statement was recorded did not cause any prejudice to him. He already stood fully posted with the facts of the case which emerged from his own omission. Our examination of the inquiry file has persuaded us to endorse the conclusion reached by the learned appellate Tribunal, in this respect as well. For all these reasons we do not find any merit in this writ petition. It is dismissed but with no order as to costs.