C. ITOH & CO. LTD., KARACHI Versus , MUHAMMAD SHAHID KHAN

DECISION

The circumstances forming the background of this case are as follows.

2. The respondent was working as a Driver with the appellants, a Japanies Company with their office situated in the Shaheen Complex, Karachi. They have a number of cars. There was arrangement for parking five of them in the aforesaid complex and for the rest of the cars, there was an arrangement between them and the Muslim Gymkhana, which was close by.

3. On 4‑9‑1990, the respondent at about 9‑30 a.m. had parked a Toyota Crown 1986 Model Car, which was under his charge, at the Muslim Gymkhana Ground and sometime later had gone to the Office‑of the appellant. At about 11‑30 or so when he came down he found the car missing and fording no trace of the same lodged a report at the Artillery Police Station.

4. On 13‑9‑1990, he received a letter which is being reproduced in extenso:‑

Mr. Muhammad Shahid Khan, Driver

"WARNING LETTER

Toyota Crown Car Model 1986 Registration No. D/9297 valued at about Rs.14,00,000 (Rupees Fourteen lakhs) was in your custody and possession on the 4th September, 1990. You have reported that this car has now been stolen. As a driver you were responsible to ensure that the car on which you were assigned your duty and which is the property of the Company remained within your custody during duty hours. You have been guilty of causing wilful loss and damage to the Company by staying away from the car thus resulting in its being taken away causing loss to the Company.

You are charge‑sheeted for the aforesaid offence. Show cause within two days of the receipt of this charge‑sheet as to why disciplinary action against you be not taken.

(Sd.)

Y. TAMURA

Asstt. General Manager

(Administration)"

5. The respondent gave a reply to the same denying the allegation made against him. On 27‑9‑1990, he received another letter which ended with the following words:‑

"You had already been issued with a show‑cause notice on September 13, 1990 for causing wilful loss and damage to the Company. Management have lost confidence in you and cannot assign any other car to you. For loss of confidence we have decided to terminate your services on payment of one month's salary in lieu of notice with immediate effect. You are directed to collect your legal dues on any working day.

(Sd.)

Y. TAMURA

Asstt. General Manager"

The respondent had sent the grievance notice which was replied to and finding no satisfaction a petition was filed under section 25‑A of I.R.O., 1969, praying for reinstatement.

6. In the reply statement it was alleged that the appellants were only a Liaison Office and not undertaking any industrial or commercial activities. Actually they did not have the permission to do so from the Ministry of Industries and Natural Resources of the Government of Pakistan; As there was no question of making any profit it was averred that the provisions of the Standing Orders Ordinance were not applicable. The rest of the allegations came to be denied.

7. The respondent was his own witness and Mr. I.T. Ishiguro, General Manager of the Company in Pakistan appeared on behalf of the appellants.

8. It appears that the challenge to the jurisdiction of the Court was not pressed and the termination of the respondent from service was found to be not legal. Therefore the Labour Court ordered the petitioner's reinstatement in service with full back benefits.

9. The contention assailing the maintainability of the petition was repeated in the Memorandum of appeal. However, it was again not pressed during the arguments. The record indicates that the appellants are maintaining a fleet of cars and they remained totally reticent about the number of their employees. All they had stated was that they were not doing any profit making business. Mr. Ishiguro however stated that "it is the major trading company of Japan operating in Pakistan." The company has got a net‑work of offices worldwide and a booklet also was produced.

10. In the light of the view I am taking I will desist from making any comment as to whether there was any negligence or as averred by the appellants any contributory negligence in the loss of a car worth Rs.14,00,000. The contention of the appellant was that it was a case of termination simpliciter and they had given a reason and also offered to pay a month's pay in lieu of notice and other dues which could be available in his favour.

11. In their letter, dated 9‑11‑1990 the appellants have mentioned that "they have lost confidence in the respondent and cannot possibly give him any other car." He had also been charge‑sheeted though they chose to mention that it was only a letter of termination of employment.

12. Mr. Mahmood Abdul Ghani, learned representative for the appellants also took this theme of lack of no confidence and referred to two judgments from the Supreme Court of India in which it was held, that once the employer had lost his confidence in his employee and terminated his services the order was immune from challenge even if erroneous. If the termination of employment was wrongful he could be compensated but not reinstated. The citations are Civil Appeal No. 1339 of 1967 ‑‑ All India Corporation v. VA. Rebellow and another ‑and Civil Appeal No. 2127 of 1969 ‑‑Hindustan Steel Limited v. Roy (A.K.) and others. However, these are cases under the Industrial Disputes Act of 1947 wherein sections 33 and 33‑A of the said Act were construed. Reference to these cases will be, in my humble view, singularly inapt, looking to the law as it is at present. That, however, is beside the point.

13. The position confronting the appellant is that the services of the respondent had been terminated apparently under Standing Order 12(3) though a charge‑sheet had been issued to him earlier. The respondent had remained talking about misconduct all through the proceedings. And there lies the rub.

14. It was held in the case of Glaxo Laboratories (Pakistan) Ltd. v. Pakistan and another 1962 PLC 362 as cited by Mr. Abdul Majeed, learned representative for the respondent, that if the termination of service was specifically for misconduct but however a month's pay was given m lieu of notice, such payment does not change the original reason for termination of service. It was also observed that misconduct not having been lawfully established reinstatement in service was proper. There are a number of authorities in which it has been held that termination should be for reasons other than misconduct.

15. As the matter stands the impugned order is not open to exception. I will, therefore, dismiss the appeal. It will be open to the appellant, if so advised, to hold a domestic enquiry against the respondent, on the charge of misconduct.

A.A./2099/Lb.S Appeal dismissed.