MUHAMMAD AKBAR Versus GENERAL MANAGER, JUPITOR TEXTILE MILLS LTD.

DECISION

This is an appeal against the order dated 17--1-1990 of learned Presiding Officer Sindh Labour Court No. VI at Hyderabad whereby the grievance application of the appellant was dismissed.

2. I have heard Mr. Abdul Ghani Khan for the appellant and Mr. N.A. Talpur for the respondent and have also gone through the record & proceedings of the case.

3. The brief facts of this case appear to be, that the appellant was admittedly a workman employed by the respondent. On 2-7-1988, he left his duty without permission half an hour earlier. He was therefore charge-sheeted on 3-7-1988 and in the domestic enquiry he was found guilty and was therefore dismissed from service by an order dated 15-10-1988.

4. The charge-sheet shows that the appellant was asked to go after taking leave, but he refused and forcibly left the mill and incited others also to leave the mill. Mr. NA. Talpur has conceded, that the second charge viz inciting other labourers to leave the mill was not pressed. It leaves us with the charge that the appellant left the mill without permission.

5. This charge sheet was framed on the report of Time Keeper Mr. Nadeem which is Annexure-R/3, in the enquiry papers. In this report, Mr. Nadeem has alleged that he asked the appellant not to leave without permission and that he telephoned to Razzak Saheb who also told him to leave the appellant only at due time but the appellant went to the Colony and thereafter told him that Mr. Murtaza had permitted him therefore he was leaving the premises. Mr. NA. Talpur admits, that Nadeem Time keeper is not superior officer of the appellant. Even his report does not show that Razzak Saheb had asked the appellant not to leave the mill before his time. The charge-sheet does not show that the appellant disobeyed the order of Mr. Razzak nor this fact is mentioned in the written statement. One Abdul Razzak Shewani, General Manager had been examined by the respondent and he also does not state to have told the appellant through Nadeem that the appellant should not leave the mill before his shift was over. No such question with regard to order of Mr. Razzak has been put to the appellant in the cross examination. The appellant therefore could not be considered to have disobeyed any lawful order of his superior.

6. The appellant is charge sheeted for committing misconduct as described under Standing Order 15(3)(a) and (h). Clauses (a) and (h) read as under.--

(a) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;

(b)

(c)

(d)

(e)

(1)

(g)

(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline;

7. As pointed above Mr. N.A. Talpur did not press charge against the appellant with regard to inciting other labourers to leave the mill, therefore the charge under clause (h) appears not to have been pressed or proved. With regard to charge under clause (a), I have already held that there is no evidence to show that the appellant had disobeyed any lawful order of his superior.

8. The question that requires consideration is whether his act in leaving his duty half an hour earlier amounted to wilful insubordination or disobedience with regard to any lawful and reasonable order of his superior. I have already held that he did not disobey any order of his superior.

9. Even if the evidence is believed and it is held that charge is proved against the appellant that he left half an hour earlier to the time his shift ended, still that would amount only to disregard or disobedience of rules or orders which is a misconduct described under Standing order 15(1)(ii)(a) for which punishment is provided under Standing Order 15(2)(i) which provides for reprimand or fine. The punishment of dismissal is provided under Standing order 15(2)(iv) which cannot be awarded for said act of disobedience of rules and orders. I need not discuss the other points raised by Mr. Abdul Ghani Khan with regard to the partiality of the Enquiry Officer or the unfairness of the enquiry proceedings because even if the charge is held to be proved it would not be a misconduct falling within the scope of Standing Order 15(3) but would be a misconduct falling within the scope of Standing Order 15(1)(ii) for which punishment of dismissal cannot be awarded.

10. For the aforesaid reasons I set aside the impugned order of learned Labour Court and the order of termination of appellant from service and order reinstatement of the appellant in service. It leaves us with the question of back benefits. The appellant on his own showing had left his duty, if not the mill, half an hour earlier than his due time, which is also a misconduct though its punishment may not be dismissal. There is no evidence to show that during the intervening period he remained gainfully employed or unemployed. Under these circumstances I award him 50% of back benefits. The order to be implemented within one month.

H.B.T./1929/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeal allowed.