MUJCEBUDDIN FATMI SHAHZAD Versus PEARL CONTINENTAL HOTEL, KARACHI

DECISION

This appeal calls in question, the order of the Labour Court, dated 6‑2‑1991, dismissing the application of the appellant under section 25‑A of the I.R.O. The facts very succinctly stated, are as follows:

2. The appellant was working as a `Cashier' with the respondents. On 6‑4‑1988 he was on duty in the Marcopolo Restaurant of the respondent Hotel, and was allotted blank cheques from Serial No. 102880 to 102915. At the end of his duty he submitted the sale summary sheet to the Accounts Department and it was during the examination thereof, that the Internal Auditor found that one of the cheques allotted to him, i.e. Cheque No. 102915 had not been accounted for. The latter reported the matter to the Controller Finance. The Head Cashier, thereupon, had called the explanation of the appellant on 13‑4‑1988. It is alleged that it was thereafter that the appellant visited the Accounts Department, and surreptitiously inserted the word "Duplicate" on Cheque No. 102918 belonging to the evening shift of cashier Sohail Moghal which was lying in the Accounts Department.

3. As the explanation of the appellant was found unsatisfactory he was issued a charge‑sheet on 5‑5‑1988 which reads as under:‑‑

"Dear Mr. Fathmi Shezad;

We refer to the Controller Finance's show‑cause notice dated 13‑4 -1988 and your explanation thereto. We have carefully considered your (Agha Ali Hyder, Appellate Tribunal) explanation but we are not at all satisfied with your explanation and therefore in order to fully investigate the matter, we have decided to hold a domestic enquiry into the following charge against you:

CHARGE

That on 6‑4‑1988 during lunch hours you issued a Cheque No. 102915 (Bistro) but the sale proceeds of the said cheque were not entered into summary sheet of 6th April, 1988 and against the said cheque you gave the remarks "Not received from steward'. You did not issue any duplicate cheque for the amounts received from the guest (against cheque No. 102915) and the amount received from the guest was pocketted by you.

The above act on your part constitutes misconduct within the meaning of Standing Order 15(3)(b) of the Standing Orders Ordinance, 1968.

Mr. Zafar Zubairi, Purchasing Manager has been appointed as Enquiry Officer who will conduct domestic enquiry against you on 8th May, 1988 at 11‑00 a.m. in his office. Please appear before the Enquiry Officer on the said date, time and place for participating in the inquiry with your witnesses, if any. You may also bring a co‑worker to assist you in the enquiry.

Please note that if you fail to appear before the Enquiry Officer, the Enquiry Officer will proceed to hold the enquiry ex parte.

Yours faithfully,

(Sd.) M.K. ABBASI,

PERSONNEL MANAGER."

The appellant participated in the domestic enquiry up to 27‑8‑1988, but later on he boycotted the proceedings on the ground that after four witnesses had been examined by the Enquiry Officer and his statement had been recorded, there was no occasion for recording the statement of other witnesses on behalf of the management as was proposed to be done.

4. After the additional witnesses had been examined the Enquiry Report was submitted to the management and on 31‑10‑1988 the appellant came to be dismissed.

5. He had sent a grievance notice which was replied to and later on filed the grievance petition before the Labour Court.

6. It was alleged therein that he had been run down as the respondent was nursing a grudge against him because of his trade union activities. Complaint was also made therein that the enquiry was not conducted in a fair and proper manner, and witnesses had been introduced after his statement had been recorded and he had been tested in cross‑examination. Under the circumstances, he was left with hardly any option but to boycott the proceedings. It was also alleged that the order was otherwise insupportable as the order of holding the domestic enquiry and that of dismissal was passed by the Manager Personnel who was not competent to do so.

7. In the Written Reply the allegations made by the petitioner were controverted. It was said that the petitioner had not taken any noticeable activity in the affairs of the union and was just a Joint Secretary some five or six years earlier. It was further maintained that the enquiry was free from all taint and irregularities and the petitioner was given full opportunity to defend himself duly assisted by a co‑worker. It was also stated that the order of dismissal had been communicated by the Personnel Manager after due approval in writing from Mr. Waseem Mirza, the General Manager.

8. The appellant was his own witness during the proceedings before the Labour Court and Major Jamshed Chowna, the then Personnel Manager was examined on behalf of the respondents. To begin with the affidavit‑in‑evidence of the Personnel Manager Mr. Tasleem Ahmed Khan was filed but as he had retired in‑between he could not be made vailable for cross‑examination. As it was left with no evidentiary value, his successor, Major Jamshed Chowna was examined on behalf of the respondent.

9. The Labour Court finding the material issues against the petitioner dismissed the grievance application resulting in this appeal.

10. Before adverting to the legal contentions raised in 'the matter, we might well examine as to whether any construction can be placed on the averment with regard to the appellant coming to harm because of his involvement in the union activities.

11. It has been candidly admitted by the respondents that the appellant was the Joint Secretary of the Union but that was five six years earlier. Thereafter he had ceased to hold any office, in the union. There is nothing even remotely discernible on the record that there was any ferment or agitation among the workers on any issue. All that we are told is that there was a matter before this Tribunal in regard to the cost of living allowance claimed by the employees but that came up almost towards the end of the year, while the proceedings had been drawn against the appellant in the month of April, 1988. No body from among the office‑bearers had come to harm for espousing their causes before the Tribunal. It is hardly necessary to dilate on this aspect of the matter, because the appellant has himself admitted in the cross‑examination that he could not mention any special cause of victimization

12. Mere insinuation as held in Water and Power Development Authority v. Amjad Hidayatullah 1968 SCMR page 582 and M/s. Saifee Development Corporation Ltd. v. Inamur Rehman 1969 PLC 459 is neither here nor there. Mala fides has to be specifically pleaded and proved. It has, however, been said that in a similar situation, another employee of the Hotel by the name of Manzar Alam, had been let off on the payment of fine of Rs.100 only, while in his case he was made to face the domestic enquiry and was ultimately dismissed from service.

13. However, Major Jamshed Chowna (Retd.) explained that a fine of Rs.100 imposed on an erring employee may be deemed fit if the management was satisfied that it involved a blank cheque, which came to be lost, not due to the wilful and deliberate act of an employee, who learning of the happening reported immediately to the Head Cashier in writing. He added that in the case of Manzar Alam the cheque had been misplaced before the same could be put in circulation/use. In the instant case it was a paid cheque. What was more, the appellant did not disclose the loss of the cheque to the waiter. He had neither obtained the latter's signature nor prepared duplicate cheque in lieu of the cheque which he had received from the steward so nothing turns on that.

14. It was strenuously contended that the entire proceeding stood vitiated because the charge‑sheet had been drawn, as well as the dismissal order had been passed by Mr. M.K. Abbasi who was not the employer. He was the Personnel Manager. Chowdhry Muhammad Ashraf learned counsel for the appellant sought support for these contentions from Allied Bank of Pakistan v. Khalid Mehmood and others 1989 PLC 12, Hotel Intercontinental v. Razia Sultana 1978 PLC 413, Hafrz Abdul Karim v. Lyallpur Cotton Mills 1985. PLC 838, M/s. Souveneer Tobacco Co. Ltd. v. Sindh Labour Appellate Tribunal 1987 PLC 605.

15. On the other hand Mr. Rehan Aqeel has referred me to the case of Muhammad Altaf v. PECO Ltd. and others 1982 CLC page 1970. In this judgment from the Lahore High Court it was held that there could be a hierarchy of management rather than an individual who could be an employer of a workman. The same view was taken in the case of Muhammad Nazeer v. Merchantile Industries Ltd. 1991 PLC 712 wherein it was held that Standing Order 15(4) does not envisages issuance of notice or charge‑sheet by the employer. Reference may also be made to the case of Zaheer Baig v. M/s. Burmah Oil Co. Ltd. and others 1983 PLC 759. But all this need not tarry us, as it has been stated on behalf of the respondent, and it is on the record that the dismissal letter was issued by Mr. M.K. Abbasi after due approval had been accorded by Mr. Waseem Mirza, the General Manager. Otherwise too Mr. Abbasi was not ill‑disposed to the appellant, as Musharraf Ali Khan had been in the case of the present respondent Hotel against Razia Sultana, referred to earlier. I am, therefore, of the opinion that this contention is devoid of any substance.

16. It is true that the appellant had made a number of applications before the Management and the Enquiry Officer for the supply of certain documents, but on his own showing the same were duly supplied and he had full opportunity to defend himself. The trouble started when the respondent decided to lead further evidence in support of the charge after they had examined a number of witnesses, and even the statement of the appellant had been recorded. Once the protest had been raised, it might be pertinent to refer to what was said by Mr. Zafar Zubari, the Enquiry Officer, to allay the appellant's fears on that score:

"As regards the examination of Mr. Bari, Asad and Naeem as prosecution witnesses, the record of enquiry proceedings shows that you have not raised any objection when Mr. Luqman requested for examination of these witnesses as management's witnesses and you also cross‑examined one of them. You will be given full opportunity to cross‑examine all the Witnesses after their statements are recorded. Further you will also be given full opportunity to make any further statement or to produce any further witness to rebut the evidence of the witnesses who are now being examined."

This was an eminently reasonable approach, and no fault could be found with the same. It was also not enlarging the scope of the enquiry, as the evidence that was to come was from the Head Waiters as to when the word "duplicate" came to be inscribed on the cheque mentioned earlier some days later on. The necessity had‑ arisen presumably, because one of the witnesses had introduced some confusion in regard to the addition of the word "duplicate" on the cheque. Beyond this there was no word of reproach against the Enquiry Officer. The participation of the‑appellant in the enquiry till that stage, was free from all the heat and tension.

17. The appellant has been asked verbally and in writing time and again to make himself available for the completion of the evidence of Abdul Bari and Asad Ali Khan but there was no response from him. And if in these circumstances, the rest of the enquiry was ex parte, no blame for the same will lie on the management.

18. Chowdhry Muhammad Ashraf Khan, learned counsel for the appellant had also referred me to the case of Islamabad Club v. Punjab Labour Court etc. PLD 1980 SC page 307 which has got no relevance for the purposes of the case, as it could not be said that the scope of the enquiry had at all been widened.

19. True that the Enquiry Officer, Mr. Zafar Zubari has not been examined, but the case of M/s. Souveneer Tobacco Ltd. v. Sindh Labour Appellate Tribunal and others will not be attracted because there are no personal allegations against the Enquiry Officer at all, except what has been referred to earlier. The way the enquiry was conducted does not show any bias or rancour against the appellant.

20. A perusal of the record clearly indicates that the charge of malicious fix up is devoid of any substance. The facts as they emerge on the surface speak for themselves and establish misconduct in clearest terms. The appellant admits that even Sohail whose evidence, to my mind, hit him the hardest had no score to settle against him. It cannot, therefore, be said that he was wrongly judged and dismissed.

21. In the result I will uphold the impugned order and dismiss the appeal.

H.B.T./2106/Lb.3 Appeal dismissed.