Syed MUHAMMAD ZIKRIA SHAH Versus CRESCENT GHEE MILLS

The appeal titled above arises from the decision dated 23‑1‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 9, Multan, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

2. The appellant was a soap clerk. He was transferred as oil clerk. He did not obey the transfer order on the plea that he was not medically fit to travel to purchase the oil. He was charge‑sheeted and after, holding an enquiry was dismissed from service. His petition given under section 25‑A was accepted and he was directed to be reinstated in service but the respondent was allowed to hold fresh enquiry. The respondent instead of holding fresh enquiry terminated the appellant or, his plea that he was not fit to work as oil clerk outside the Mills. His petition under section 25‑A had been disallowed, hence this appeal.

3. It has been argued by the learned counsel for the appellant that since the allegation was of misconduct, the appellant could not be terminated without following the procedure given under Standing Order 15(4) particularly when the learned lower Court had previously allowed the respondent to hold fresh enquiry. The allegation for which the appellant was previously dismissed was non‑, compliance of the order of his transfer. From the very beginning the plea of the appellant was that his health did not allow him to travel and work outside the Mills. Enquiry‑was to be held to find out if the plea of the appellant was correct and justified. Now the respondent does not contest the plea and admitting it has terminated the services of the appellant on the ground of his admitted unfitness to work as oil clerk. On account of admission of the plea holding of enquiry was not necessary. So, the termination of services is not on account of any misconduct. Since it is admitted that he is not .fit to work as oil clerk, so disobedience of transfer order did not amount to misconduct and for this reason holding of enquiry and dismissing the appellant was not called for. It is the prerogative of the employer to transfer an employee to some other post. If an employee says that he is not fit to perform the duties assigned to him, the employer is not obliged to retain him in service. The employee has no right to say that he be posted/retained on a particular post. Transfers in the exigencies of service can be made and unless mala fides is proved, they cannot be set aside. It has no doubt been argued by the learned counsel that the appellant got detected a case of avoidance to pay income tax by deceitful means but there in no material to substantiate this plea. Reference has been made to the copy of the judgment Ex.P‑6 of the Labour Court, Multan but in this judgement the matter of income tax is mentioned as a fact urged by the appellant but it has not been found that the plea had been proved. So no victimization or mala fides had been established. On his own plea of incapability to work as oil clerk, the appellant has been terminated, so no proof of the matter was necessary. No rule or standing order of the Mills have been shown to the effect that in such circumstances the employer is legally bound to provide some alternative job to the workman. If the appellant's plea had been that for some short period he could not work as oil clerk of course, there could have been come ground to interfere but his case is that he is totally incapable of working as oil clerk. In these circumstances the respondent was justified in terminating his services and the grievance petition was rightly disallowed.

4. As upshot of the observations made above, the appeal fails and is thus dismissed.

M.Y.M./967/Lb. S. ?????

Appeal dismissed.