SHAHID PERWAIZ Versus GALAXO KLIN PAKISTAN LTD.

1. ANWAR ZAHEER JAMALI, C.J.--- Through this civil appeal, with leave of the Court, the appellant impugns the judgment dated 25.9.2012, passed by a learned Division Bench of the High Court of Sindh, Karachi in C.P. No. D-2940 of 2011, whereby the concurrent findings of respondents No.2 (Sindh Labour Court No.2, Karachi) and 3 (Sindh Labour Appellate Tribunal, Karachi), contained in their respective judgments dated 22.8.2005 and 24.8.2011, were set aside and consequently the grievance petition under section 46 of the Industrial Relations Ordinance, 2002 (in short "the IRO 2002"), filed before respondent No.3 on 04.3.2004, was dismissed.

2. Succinctly, the relevant facts of the case are that on 15.11.2001, respondent No.1 (M/s Glaxo Smith Kline Pakistan Ltd., etc.) had issued a detailed show cause notice to the appellant, stating the facts that how during the years 1991 to 2001, he had been found habitual late comer and his delayed arrival has been marked on 223 days. Further reference was made to the advisory letters issued to him in this regard during the same period on 26 occasions. In the reply to the show cause notice, submitted by the appellant, he did not deny the factum of such delay in his attendance, but tried to justify it for different reasons. Being dissatisfied with his reply to the show cause notice, respondent No.1 held inquiry against him, and finally in view of the findings of the inquiry officer, on 23.12.2003 he was dismissed from service with immediate effect.

3. The appellant being aggrieved, availed the remedy before the Respondent No.2 by filing an application under section 46 of the IRO 2002, which was strongly resisted by respondent No.1, both on factual and legal plane. However, after recording of parties' evidence, this application was allowed by respondent No.2 vide its judgment dated 22.8.2005 in the terms that the appellant was ordered to be reinstated in service with full back benefits.

4. Respondent No.1, being aggrieved by the judgment passed by respondent No.2, challenged it before respondent No.3 through an appeal under section 47(3) of the IRO 2002, which was contested by the appellant and eventually dismissed on 24.8.2011. Such judgment of respondent No.3 was then challenged by respondent No.1 before the High Court of Sindh, Karachi through a Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which was instituted on 29.8.2011.

5. This petition, after due contest between the parties was allowed vide impugned judgment dated 25.9.2012, precisely, for the reason that the learned Division Bench in the High Court came to the conclusion that there was sufficient material available on record to indicate that the appellant was a chronic, continues, frequent and habitual late comer and in such circumstances, the extreme action taken against him by the respondent No.1 was fully justified, while the concurrent findings of the two Courts below, challenged before it, were based on misreading of relevant record and wrong legal notion.

6. We have heard Mr. Shahnshah Hussain, learned ASC for the appellant and Mr. Muhammad Humayun, learned ASC for respondent No.1, and with their assistance carefully gone through the material placed on record by both the parties.

7. The short point, which is the crux of whole controversy, is that whether a person, who admittedly continued to come late on his duty on 223 occasions during the period of ten years and failed to improve his conduct despite issuance of 26 advisory notice/letters to him in this regard, is not a habitual late comer and whether such negligent conduct on his part could be condoned by the Court to the prejudice of his employer, the respondent No.1.

8. In the above context, Mr. Shahnshah Hussain analyzed the admitted facts of the case and contended that in a situation where appellant was found coming late on his duty approximately twice a month, it cannot be said that he was a habitual late comer, so as to entail penal consequences of such conduct on his part.

9. As against it, the submission of Mr. Muhammad Humayun, learned ASC for respondent No.1 was that these facts are sufficient to reflect the mindset of the appellant that he was least bothered about the interest of respondent No.1, more so, as during the relevant period, he was warned in this regard by as many as 26 advisory letters, but still he failed to improve his punctuality and thus, found guilty of misconduct, as visualized in Standing Order 15(3)(f) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

10. We have carefully considered the submissions of the learned ASCs and in the context of their submissions, minutely examined all the material placed on record. In order to demonstrate the grievance of respondent No.1 against the appellant qua his conduct, it will be useful that in the first place, contents of the show cause notice dated 15.11.2001 are reproduced in extenso, which read thus:-

2. "Glaxo Wellcome

3. IR(F)-115/1091

4. 15th November, 2001.

5. Mr. Shahid Pervaiz,

6. P.S No.2235,

7. Charge Hand,

8. Engineering Deptt-F/268.

9. Dear Sir,

SHOW CAUSE NOTICE

10. It has been observed from your attendance record that you are in the habit of attending duty late. During January, 1991 to September, 2001, you had attending duty late as details given below. Besides, during the period prior to January, 1991 also you attended duty late.

11. Month & Year

12. Dates with Arrival Time in morning

13. Nos. of Occasion Late during the month

14. January

15. 1991

16. 2(9:00), 6(8:36)

17. 2

18. March

19. 1991

20. 19(7:06

21. 1

22. August

23. 1991

24. 12(9:00), 20(8:35), 22(8:40)

25. 3

26. September

27. 1991

28. 17(8:33)

29. 1

30. October

31. 1991

32. 8(9:05), 24(8:40)

33. 2

34. November

35. 1991

36. 12(8:45)

37. 1

38. December

39. 1991

40. 23(9:10)

41. 1

42. January

43. 1992

44. 9(9:10)

45. 1

46. March

47. 1992

48. 8(7:56), 10(7:43)

49. 2

50. May

51. 1992

52. 4(9:10), 25(8:40)

53. 2

54. June

55. 1992

56. 10(8:40)

57. 1

58. July

59. 1992

60. 5(8:40), 23(8:35)

61. 2

62. November

63. 1992

64. 2(8:40), 3(8:35)

65. 2

66. December

67. 1992

68. 2(8:55), 22(8:35)

69. 2

70. January

71. 1993

72. 17(8:36)

73. 1

74. February

75. 1993

76. 25(8:06)

77. 1

78. March

79. 1993

80. 2(7:47)

81. 1

82. April

83. 1993

84. 14(8:45)

85. 1

86. May

87. 1993

88. 24(8:45)

89. 1

90. July

91. 1993

92. 6(8:38), 18(8:35), 21(8:42), 28(8:31)

93. 4

94. August

95. 1993

96. 24(8:35), 26(8:32)

97. 2

98. September

99. 1993

100. 1(8:31), 8(9:15), 19(8:31), 26(9:00), 30(8:32)

101. 5

102. October

103. 1993

104. 21(8:46)

105. 1

106. December

107. 1993

108. 5(8:31), 9(8:32), 23(9:20), 27(8:35)

109. 4

110. January

111. 1994

112. 23(8:37), 27(9:25), 31(8:50)

113. 3

114. February

115. 1994

116. 1(8:40), 17(8:45), 22(7:55)

117. 3

118. March

119. 1994

120. 2(8:35), 10(8:20)

121. 2

122. April

123. 1994

124. 3(8:34)

125. 1

126. May

127. 1994

128. 10(8:40)

129. 1

130. July

131. 1994

132. 21(8:45)

133. 1

134. August

135. 1994

136. 1(8:45), 15(8:35), 24(8:50)

137. 3

138. September

139. 1994

140. 8(8:50), 26(9:20)

141. 2

142. February

143. 1995

144. 12(8:03), 28(8:25)

145. 2

146. March

147. 1995

148. 1(8:15), 15(8:48)

149. 2

150. April

151. 1995

152. 25(8:50), 27(8:38)

153. 2

154. May

155. 1995

156. 29(9:20)

157. 1

158. June

159. 1995

160. 12(9:10), 14(8:55)

161. 2

162. July

163. 1995

164. 17(9:15), 18(9:20)

165. 2

166. August

167. 1995

168. 1(8:40), 15(9:15), 30(8:40)

169. 3

170. September

171. 1995

172. 7(8:56), 17(8:47), 28(8:35)

173. 3

174. October

175. 1995

176. 2(8:35), 24(8:40), 25(8:50), 31(8:50)

177. 4

178. November

179. 1995

180. 6(8:34), 15(8:33), 16(8:32), 19(8:32)

181. 4

182. December

183. 1995

184. 12(8:55), 24(8:55)

185. 2

186. January

187. 1996

188. 3(8:50), 8(8:52), 9(8:32), 25(8:45)

189. 4

190. February

191. 1996

192. 6(8:42), 15(8:00), 29(8:40)

193. 3

194. March

195. 1996

196. 5(8:40)

197. 1

198. April

199. 1996

200. 10(8:32), 24(8:30)

201. 2

202. May

203. 1996

204. 8(8:21), 21(8:30)

205. 2

206. June

207. 1996

208. 25(8:21)

209. 1

210. July

211. 1996

212. 3(8:30), 22(8:35), 28(8:35)

213. 3

214. August

215. 1996

216. 26(8:25), 27(8:50)

217. 2

218. September

219. 1996

220. 2(8:35)

221. 1

222. December

223. 1996

224. 12(8:23), 17(8:50), 29(8:23)

225. 3

226. January

227. 1997

228. 5(8:45), 12(8:35), 19(8:20), 29(7:58), 30(8:20)

229. 5

230. February

231. 1997

232. 13(8:35)

233. 1

234. April

235. 1997

236. 30(8:55)

237. 1

238. May

239. 1997

240. 13(8:40), 30(8:25)

241. 2

242. June

243. 1997

244. 5(8:30), 9(9:13), 29(8:30), 26(8:25), 30(8:25)

245. 5

246. July

247. 1997

248. 8(8:35), 11(8:30), 21(9:12), 22(8:21)

249. 4

250. August

251. 1997

252. 8(8:25), 12(9:03), 20(9:07)

253. 3

254. September

255. 1997

256. 12(8:55), 18(8:22)

257. 2

258. October

259. 1997

260. 13(8:40), 22(8:30)

261. 2

262. November

263. 1997

264. 3(8:25), 12(8:30), 21(8:22), 28(9:05)

265. 4

266. December

267. 1997

268. 24(8:45), 31(7:55)

269. 2

270. January

271. 1998

272. 2(7:37), 5(8:25), 8(8:10), 14(8:00), 20(7:42)

273. 5

274. February

275. 1998

276. 11(9:10), 27(8:40)

277. 2

278. March

279. 1998

280. 6(8:27)

281. 1

282. April

283. 1998

284. 2(8:45), 14(8:28), 20(8:45)

285. 3

286. May

287. 1998

288. 11(8:30), 27(9:00)

289. 2

290. June

291. 1998

292. 12(8:22), 24(8:35)

293. 2

294. July

295. 1998

296. 13(8:21), 22(8:22)

297. 2

298. August

299. 1998

300. 7(8:35), 27(8:22)

301. 2

302. November

303. 1998

304. 30(9:00)

305. 1

306. December

307. 1998

308. 11(8:30), 31(8:00)

309. 2

310. January

311. 1999

312. 4(8:25), 6(7:40), 12(7:40)

313. 3

314. February

315. 1999

316. 18(8:35), 24(8:50)

317. 2

318. March

319. 1999

320. 5(8:35), 11(8:35), 24(8:25)

321. 3

322. April

323. 1999

324. 21(8:25)

325. 1

326. May

327. 1999

328. 6(8:35)

329. 1

330. June

331. 1999

332. 11(8:40), 29(9:13)

333. 2

334. July

335. 1999

336. 13(8:40), 19(8:38)

337. 2

338. August

339. 1999

340. 25(8:35), 30(8:21)

341. 2

342. September

343. 1999

344. 1(8:25), 13(8:25)

345. 2

346. October

347. 1999

348. 1(8:30), 4(8:30), 13(9:14), 29(8:21)

349. 4

350. November

351. 1999

352. 26(8:25)

353. 1

354. December

355. 1999

356. 2(8:25), 13(8:10), 20(8:05)

357. 3

358. January

359. 2000

360. 3(8:20)

361. 1

362. February

363. 2000

364. 2(9:00), 24(8:45), 29(8:35)

365. 3

366. April

367. 2000

368. 7(8:21), 10(8:25)

369. 2

370. May

371. 2000

372. 2(8:55), 23(8:22), 24(8:28)

373. 3

374. June

375. 2000

376. 28(8:23)

377. 1

378. July

379. 2000

380. 19(8:25)

381. 1

382. August

383. 2000

384. 7(8:40), 15(8:50), 28(8:25)

385. 3

386. September

387. 2000

388. 1(8:22), 6(8:35)

389. 2

390. October

391. 2000

392. 20(8:50), 24(8:55), 30(8:55)

393. 3

394. November

395. 2000

396. 1(8:25), 7(8:25), 16(8:30)

397. 3

398. December

399. 2000

400. 5(8:25), 13(7:55), 26(7:40)

401. 3

402. January

403. 2001

404. 15(8:55)

405. 1

406. February

407. 2001

408. 20(8:35)

409. 1

410. April

411. 2001

412. 6(9:10)

413. 1

414. May

415. 2001

416. 4(9:10)

417. 1

418. August

419. 2001

420. 13(8:30), 22(8:25)

421. 2

422. September

423. 2001

424. 18(8:28), 21(8:32)

425. 2

426. During the above period, you were also given the following advisory letters advising you to improve your attendance which were acknowledged by you but you did not pay any heed to it.

427. LETTER NO. DATE

428. PER/IR.T13/087 15-9-1991

429. PER/IR.T13/2404 28-8-1993

430. PER/IR.T13/287 25-10-1993

431. PER/IR.T14/898 1-2-1994

432. PER/IR.T14/1011 22-2-1994

433. PER/IR.T13/1229 27-3-1991

434. PER/IR.T13/2561 24-9-1994

435. PER/IR.T13/969 26-9-1995

436. PER/IR.T13/1065 22-10-1995

437. PER/IR.T13/1154 25-11-1995

438. PER/IR.T13/1263 23-12-1995

439. PER/IR.T13/146 25-2-1996

440. PER/IR.T13/333 21-3-1996

441. PER/IR.T13/154 22-1-1997

442. PER/IR.T13/249 25-2-1997

443. PER/IR.T13/870 15-8-1997

444. PER/IR.T13/977 19-9-1997

445. PER/IR.T13/1284 24-12-1997

446. PER/IR.T13/437 18-5-1998

447. PER/IR.T13/128 25-2-1999

448. PER/IR.T13/881 18-11-1999

449. HR/IR.96/206 16-3-2000

450. HR/IR.096/444 20-6-2000

451. HR/IR.96/672 14-9-2000

452. HR/IR.096/855 17-11-2000

453. HR/IR.096/66 17-1-2001

454. Inspite of the above, you did not desist from late attendance and again attended duty late on October, 2001 upto 19th 15(8:26), 19(8:30).

455. Your above act of frequently attending duty late is habitual in nature and is not only highly objectionable/irregular but also adversely affects the work and discipline of the company which constitutes misconduct under Standing Orders 15(3)(e) to the Schedule of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as amended update.

456. You are hereby called upon to explain your position, in writing, within 48 hours of the receipt of this Show Cause Notice as to why disciplinary action should not be taken against you as per law.

457. Yours faithfully,

458. Glaxo Wellcome Pakistan Ltd.,

459. Sd/-

460. Muhammad Hanif

461. Manager, Industrial Relations/

462. Notified Factory Manager."

11. The contents of above document as regards 223 instances of late coming attributed to the appellant are not denied by him in his reply, nor the receipt of advisory letters, as detailed in its second part. This being the admitted position, now the only point which requires further consideration is that what could be the criteria for an establishment to categorize a person as habitual late comer and whether late coming of an employee approximately twice a month is to be ignored as of right, more particularly, in the circumstances when in the form of advisory letters on 26 occasions, he was warned to desist and discontinue such practice, but to no avail.

12. The perusal of the impugned judgment of the High Court reveals that this moot point of the controversy has been discussed in detail with reference to various case law on the subject and the connotation of the words "habit" and "habitual". After going through the impugned judgment, we cannot resist, but to say that cogent and valid reasons, based on proper appreciation of factual and legal aspects of the case, have been recorded by the High Court in order to fully justify its conclusion that the punishment awarded to the appellant by respondent No.1 was neither illegal nor arbitrary, but according to the spirit of the law (Standing Order 15(3)(f)) (ibid). The learned ASC for the appellant, during his arguments, could not show or convince us that such conclusion recorded in the impugned judgment is misconceived or contrary to the well settled principles of law.

13. As a sequel of above discussion, this appeal is dismissed. However, before parting with this judgment, we may observe that on 16.7.2015, the respondent No.1 has submitted a statement in writing before the Court as a proposal for resolution of this dispute. Such statement is reproduced as under:-

"STATEMENT

463. In compliance of the order dated 15-07-2015 passed by this Hon'ble Court in the matter, on instructions received from the Respondents client's, following has been agreed without prejudice and creating any precedence, as under:-

464. That the dismissal order dated 23-12-2003 of the Petitioner's on submitting application for conversion shall be converted into termination simplicitor w.e.f 27-12-2003 and in consequences thereof shall be paid all admissible terminal benefits.

465. This shall not create any precedence or practice in this case or any other case in the establishment of the Respondent Company."

14. Thus, the appellant, if so advised, may approach respondent No.1 to avail the benefit of above offer by filing an application before respondent No.1 to this affect. We expect that respondent No.1, being a Company of international repute, will abide by their commitment/ statement before the Court, as reproduced above.

15. Foregoing are the reasons for our short order dated 22-10-2015.

466. MWA/S-14/SC Appeal dismissed.