' This Constitutional petition calls in question the order dated 11-11-1991 passed by the Punjab Labour Appellate Tribunal, whereby the order of reinstatement of respondent No,1 with full back benefits was modified to the extent that he was not entitled to the back benefits.
2. Muhammad Shabbir respondent No,1 was working as a Helper in the Glue Section of the factory of the petitioner in November, 1991. He was charge sheeted on 26-11-1989 on the allegations of insubordination and sleeping during duty hours, on 22nd and 24th of November, 1989. In the domestic inquiry, he was found guilty and consequently dismissed from service vide filed petition order dated 10-3-1990. Thereafter he filed petition under section 25-A of the Industrial Relations Ordinance, before Punjab Labour Court No, 5, who reinstated him with full back benefits vide order dated 8-9-1991. Petitioner impugned this order before the Punjab Labour Appellate Tribunal who vide order dated 23-9-1991 upheld the order of reinstatement but refused relief of back benefits. It is this order of the learned Punjab Labour Appellate Tribunal which has been impugned in this petition by the employer.
' The details of the allegations are that on 22-11-1989 the entire plant was closed down during the night shift on account of the defect in the Oil Heater Section. Respondent No,1 who worked in the Glue Section of the plant, was sent for to work in the Oil Heater Section for removing the defect but instead of complying with the order of the Shift Incharge, he misbehaved with him. Similarly, on 24- 11-1989, the machine in the Glue Section had stopped working due to choking, respondent No,1 who was found sleeping in the Electrical Control Room refused to come to help the operator in removing the defect. His case in the domestic inquiry and before the Labour Court was that he was the Vice-President of the C.BA. Union and the action had been taken against him on account of his trade union activities, all the witnesses who appeared against him belonged to the rival union, the Shift Incharge was inimical because he had made complaint against him in writing as office- bearer of CBA and that Inquiry Officer Ch. Ali Ahmed, Advocate was not an independent person because he was paid by the management.
3. The learned Labour Court with reference to the incident that took place on 22-11-1989, came to the following conclusion:-- "It is an established fact on the inquiry file that Abdul Hameed was the operator of the Oil Heater Section, whereas the petitioner was working as Helper in Glue Section and for this reason he had in fact no experience regarding the operation and handling of the Oil Heater. Since the fault was not in machinery of his section, he was justified to refuse to remove it if it had occurred in the machinery of a different Section. Even then, he climbed over the ladder of the Oil Heater in compliance of the orders of the Shift Incharge but came down because he could not keep his balance."
' With regard to the incident which occurred on 24-11-1989, the learned Labour Court found as follows:-- "As regard the second part of the charge to duty in Glue Section on 24-11-1989, it is worthwhile to mention that Manzoor Hussain PW-6 of the domestic inquiry who deposed that work was stopped due to the shortage of raw material when he and Maqbool Ahmed came back from the tea stall, they found the petitioner present in the Section. He also admitted the presence of the petitioner in the section at the time of choking of the glue machine. Therefore, it will be improbable to hold that the petitioner had refused to come to the Section for duty when Glue Section got choked."
' On the question of mala fide dismissal of respondent No,1, the learned Labour Court observed as under:-- "The petitioner was Vice-President of the CBA and the mishap of the night of 22-11-1989 had annoyed the officers of the mills against him. It is quite natural that they were bent upon causing harm to him on one pretext or the other."
' By taking the above view, respondent No,1 was reinstated with back benefits by the learned Presiding Officer of the Labour Court.
4. In the appeal, the learned Punjab Labour Appellate Tribunal held that the allegation regarding his refusal to climb up the staircase to open the exhaust volve (on 22-11-1989), did not amount to misconduct because it fell outside the scope of his duty, but even then he did climb up the staircase but could not complete the work which was required to be done by him. On the allegation regarding sleeping on 22-11-1989 and 24-11-1989 he found as follows:-- "Learned counsel for the appellant has not been able to point evidence that on both the dates respondent No, 1 was found sleeping. However, one witness out of the ones examined during the inquiry, stated that respondent No,1 was found sleeping in the electrical control room on 22-11-1989 (actually it should be 24-11-1989). Since respondent No,1 was found sleeping not at the place of his duty but at a different place, it is apparent that he had intentionally gone to sleep and not that while on duty he was overcome by sleeping. He, therefore, was guilty of misconduct."
' The learned Punjab Labour Appellate Tribunal taking the above view held that:-- "Since the respondent succeeds only on a technical ground which is that only one charge had been established whereas the Inquiry Officer found him guilty and the empower had dismissed him on all the three charges, he is not entitled to back benefits."
' Accordingly, by disallowing the back benefits, the order of reinstatement of respondent No,1 was upheld.
5. Learned counsel for the petitioner has criticized the impugned order passed by the learned Labour Appellate Tribunal on the ground that after holding that respondent No,1 was guilty of misconduct on account of his sleeping during the duty hours, at a place which was away from his place of duty, the appeal should have been accepted in toto by upholding the order of dismissal of respondent No,1. Learned counsel in support of his submission has placed reliance on Habib Bank Limited v. Musaddaq Hussain and 2 others. (1993 SCM R 126) whereby it was held by the Hon'ble Supreme Court as follows:-- "In the case in hand, the statutory provisions quoted above make it quite clear that the Appellate Tribunal could vary or modify the order under appeal. It was not bound to either sustain it in totally or set it aside completely. As an appellate authority it was open to the learned Appellate Tribunal either to sustain the order or to very or modify it in accordance with the facts established, whatever it may have deemed fit. The contention of the learned counsel for the respondent that the latter had suffered enough for the charges proved against him is a matter for the tribunal to address.
' In view of what has been stated above, the appeal is allowed and the case is remitted to the learned Punjab Labour Appellate Tribunal to determine as to what punishment will meet the ends of justice on the charges proved against the respondent."
' In the precedent case, the employee was dismissed from service on seven charges. The Punjab Labour Appellate Tribunal, on examination of the evidence found that only two out of the seven charges had been proved, and, therefore, the whole order was set aside and the employee was reinstated in service. Leave was granted to consider the question that order of dismissal ought not to have been interfered with merely for the reason that the other five charges had not been established. It was in the background of these facts that the learned Supreme Court rendered the aforequoted finding. It is submitted by the learned counsel for the petitioner that in the present case also the learned Tribunal had found that sleeping in a different section on 24-11-1989 constituted misconduct, therefore, the case should be remanded to the Labour Tribunal for considering as to what punishment should be awarded to respondent No,1 for sleeping during the duty hours on 24-11-1989.
6. Learned counsel for the respondent on the other hand has contended that single act of sleeping is not a misconduct. In support of his contention he has placed reliance on a Division Bench decision of this Court in General Manager, Pak. American Fertilizers Limited v. Industrial Court, Lahore and another (PLD 1966 Lahore 822), in which it was observed as follows:-- "Every workman, especially one who has to watch the working of modern complicated machinery put on light duty knows that he shall not got to sleep, but if he goes to sleep, it may be a deliberate act or an unintentional act. It would be a deliberate act if he goes to sleep intentionally and purposely, but an involuntary act, if sleep engulfs him, as it comes by habit at night, as it may, in spite of his intention to the contrary."
' Learned counsel also cited Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others (PLD 1983 Lahore 661), wherein it was held that "a solitary instance of sleeping on duty does not amount to misconduct. It can be termed as inefficient working or it may be negligence or neglect of work.
Unless, there is a frequent repetition of this act, it will not amount to misconduct. The act or omission of the petitioner may fall in clause (1) of Standing Order No,15 and in such a case, the employer may reprimand him, or impose a penalty of fine, but the penalty of dismissal cannot be imposed on him". Reliance was also placed on Rasheed Textile Mills Limited v. Sindh Labour Appellate Tribunal, Karachi and another (PLD 1978 Karachi 77) wherein a learned Division Bench held that single act or omission could not be treated as wilful damage to, or loss to employer's goods or property under S.O. 15(3)(a). He further submitted that the learned Labour Court had relied on the statement of inquiry witness PW-6 who had admitted that the Plant had stopped because of the shortage of the raw material and when he came back after taking tea, Shabbir Ahmed respondent No,1 was already there. He further argued that the learned Labour Court had also found that action against respondent No,1 had been taken by the management on account of his trade union activities being the Vice-President of the CBA. He further argued that there was material on the record, which showed that inquiry witnesses belonged to the rival union and defence evidence had been completely ignored. On the basis of these submissions, learned counsel has criticized the order of the learned Punjab Labour Appellate Tribunal, that the reasons advanced by the Labour Court had not been met by the learned Tribunal and his client was held guilty of misconduct on account of sleeping during the duty hours, arbitrarily and in a cursory manner without discussing the evidence on record, although the same had been specifically referred to by the learned Labour Court.
7. After considering the arguments addressed at the Bar, I am of the view that, technically speaking, the contention of the learned counsel for the petitioner is well-founded because after holding that the act of the sleeping on 24-11-1989 constituted misconduct, it was required on the part of the learned Appellate Tribunal to have imposed some punishment which it might have deemed fit, rather than to reinstate respondent No, I without awarding any punishment. But the submission made by the learned counsel for respondent No,1 that the very finding of the learned Tribunal that his client had committed-misconduct by sleeping during duty hours suffers from arbitrariness and in application of mind, is equally correct.
8. I have given my anxious consideration to the question, whether the case should be remanded, as urged by the learned counsel for the petitioner, to the learned Labour Appellate Tribunal for awarding some punishment to respondent No, 1 for his misconduct of sleeping on 24-11-1989 in the Electrical Control Room. In view of the law laid down in the case of Habib Bank Limited, ibid, the remand is necessary. But the remand is necessary not only to consider the question of punishment for the misconduct aforesaid, but also because the very finding with regard to misconduct requires to be determined afresh after proper application of mind. All the relevant evidence produced by either side should be taken into consideration. There is indication in the inquiry report, in the shape of evidence led before the Inquiry Officer, especially the admission made by the inquiry witness PW 6, that on 24-11-1989, the plant had closed down due to non-availability of the raw material due to which he alongwith other P.Ws. Had gone to take tea and when he came back, Muhammad Shabbir respondent was already in the Glue Section. Therefore, even if respondent No, 1 had gone to sleep elsewhere when the plant had closed for want of raw material, can it be said to be an intentional act of sleeping with a view to shirk duty, and hence a misconduct. This question requires proper application of mind. Similarly, the allegation that dismissal was tainted with mala fides on account of his trade union activities needs to be properly attended to in the light of the material on record. The learned Labour Appellate Tribunal shall redetermine whether any misconduct has been committed by respondent No,1, and if so, what punishment should be awarded to him. And if he has not committed any misconduct, whether he should be reinstated with or with out back benefits. Needless to say, that the learned Appellate Tribunal shall give independent findings on merits, without in any way being influenced by anything said herein.
' In view of what has been discussed above, by accepting the writ petition, the impugned order dated 11-11-1991, passed by the Punjab Labour Appellate Tribunal is declared to be without lawful authority and of no legal effect, and the case is remanded to the learned Appellate Tribunal for deciding the appeal afresh in the light of the observation made above. Respondent No, 1 was dismissed from service on 10-3-1990. It is, therefore, hoped that the learned Tribunal will decide the appeal expeditiously, possibly within three months. In the peculiar circumstances of the present case, the parties are left to bear their own costs.