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Petitioner: RIAZ HUSSAIN VS Respondent: MESSRS SHAHNAWAZ LTD.
Court Name: Labour Appellate Tribunal Judge(s): Z. A. Channa Title: RIAZ HUSSAIN vs MESSRS SHAHNAWAZ LTD. Case No.: Appeal No: XAR-78 of 1982 Date of Judgment:1982-06-01 Reported As: 1983PLC 2 Result: orders made
Judgment ORDER This appeal is decrected against the decision of the learned IIIrd Labour Court , given on 26th January, 1982, on the grievance petition filed by the appellant workman challenging his dismissal from service by the respondent company. The learned Labour Court has held that the respondent company was entitled, in the exigencies of services, to transfer the appellant from Karachi to Rawalpindi and has repelled the appellant's contention that the transfer was mala fide and motivated by a desire to deprive him of promotion to which he was entitled. The learned Labour Court has further held that the respondent was unauthorisedly absent from his duties for a period exceeding 10 days with effect from 18th October, 1980 and was thus guilty of misconduct. It has accordingly dismissed the appellant's grievance petition. 2. The facts relevant for the purposes of this appeal are that by letter, dated 10th May, 1963, the appellant was appointed in a temporary vacancy, to the post of a helper in the Assembly Division of Messrs Shahnawaz Ltd. The. Respondents herein. The appellant. In course of time, gradually rose to the post of Head Mechanic in the respondent's workshop at Karachi. All along the appellant had been working in the respondent's workshop at West Wharf Karachi. However, on 24th June, 1980, an inter-office memo. Was issued for the appellant's transfer to Rawalpindi and requiring him to report for duty to the Works Manager, Rawalpindi, on 5th July, 1980. By the same memo. The salary of the appellant was raised to Rs. 1,300 per month with affect from the date that he reported for duty at Rawalpindi. The appellant, by his written representation, which appears to have been received by the management on 26th June, 1980, protested against his transfer to Rawalpindi on the grounds
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firstly, that the transfer was mala fide and was made with a view to deprive him of promotion to the post of Foreman at the Karachi workshop which post had fallen vacant on account of the resignation of the former Foreman, Zaman Khan, and secondly, that his transfer to a place outside Karachi would put him to great hardship as on the one hand he would not be able to find suitable accommodation at his new place of post--ing and on the other hand, he would be compelled to sell his flat at Karachi which he bad acquired after great deal of sacrifice. It was further pointed out in the said letter that there was no condition in his appointment letter regarding his transfer outside Karachi. The management by their letter, dated 28th June, 1980 rejected the objections of the appellant to his transfer and pointed out that it had become necessary to post a senior mechanic at Rawalpindi, because the sudden death of the Head Mechanic at Rawalpindi, Muhammad Ramzan. It was further asserted in the said letter that under the rules applicable to the employees of the company, they were liable to be transferred to any branch office or any where in the country. The appellant was also informed by this letter that his salary had been raised by Rs. 200 per month with effect from the date that he reports for duty at Rawalpindi only to minimize any hardship that he might face on account of his transfer. It is claimed by the appellant that the Management refused to allow him to perform his duties or to punch his attendance card from 25th June, 1980. He has further alleged that because of the treatment meted out to him by the respondent company he fell ill from 3rd July, 1980. As the appellant did not report for duty at Rawalpindi on 5th July, 1980, as directed by the transfer order, dated 24th June, 1980, a show-cause notice was issued on 15th July, 1980. In the said show-cause notice, it was further alleged that the appellant had unauthorizedly remained absent from his duties for a period exceeding 10 days. In his reply to the show-cause notice, dated 21st July, 1980, the appellant denied the allegations contained in this show--cause notice and asserted that he has not been keeping well from 3rd July, 1980, and hence he had asked for 3 weeks medical leave, as advised by his doctor through his letter, dated 15th July, 1980 with which the medical certificate of his doctor was enclosed. The respondent company, by its letter dated 24th July, 1980 while pointing out` that the plea of ill health taken by the appellant was false in that he had been seen a number of times in the company's premises upto 15th July, 1980, stated that they were taking a lenient view of the matter and were granting him leave without .Pay from 26th June to 24th of July, 1980. By this letter, the company once again directed the appellant to report for duty at Rawalpindi on the expiry of his leave. It appears that the appellant was granted further leave for 19 days without pay with effect from 25th July, 1980 to 12th August, 1980, though the correspondence requesting for and granting, the leave is not available on the record of the case. On 27th August, 1980, a charge-sheet was issued to the appellant alleging that he had failed to report for duty at Rawalpindi and that further he had been absenting himself without leave for a period exceeding 10 days after the expiry of his lease without pay on 12th August, :980. The appellant by his letter. Dated 2nd September, 1980, did not dispute the fact that he had not joined duties at Rawalpindi but contended that no written instructions had beets issued to him requiring him to report for duty at Rawalpindi on 16th August, 1980. In regard to his absence from his duties after`' 12th August, 1980, the appellant stated that he would produce the necessary medical certificate in support of his inability to attend to his duties at the time of joining duties. This reply of the appellant was not found satisfactory by. The Management and accordingly it appointed Mr. S. Gayasuddin to hold a domestic enquiry against the appellant, by the enquiry notice, dated 9th September, 1980, which was sent to the appellant. The enquiry was to be held on 17th September, 1980, but the enquiry was postponed to 24th September, 1980 on the letter, dated 17th September, 1980, of the appellant requesting for postponement of the enquiry on humanitarian grounds as he was still unwell. It appears that in the meanwhile a complaint against the Management was made by the appellant to the Directorate, Labour Welfare, which invited the appellant and the management to attend a joint meeting on 29th September, 1980. While the appellant on the one
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hand was pursuing his complaint against the Management with the Directorate, Labour Welfare and in fact appears to have attended a joint meeting called by the Directorate, Labour Welfare, on 23rd September, 1980, he wrote a letter, dated 24th September, 1980, to the respondent company requesting for grant of sick leave for the period after 12th August, 1980 and also requesting that the charge-sheet and the enquiry proceedings should be withdrawn and he should be promoted as Foreman after resumption of duties. It appears that this letter was accompanied by a medical certificate, dated 23rd September, 1980. The Management vide its letter, dated 27th September, 1980 while asserting that the action of issuance of charge-sheet was in accordance with law and hence the enquiry proceedings could not be withdrawn, agreed to grant leave without pay to the appellant, as a special case for the period from 13th August, 1980 to 30th September, 1980. By this letter, the appellant was directed to report `or duty at Rawalpindi on 4th October, 1980 failing' which he would be liable to disciplinary action. On the office copy of this letter, the appellant made an endorsement to the effect that his case was under consideration of the Labour Department and as the decision of the Labour Department was expected within a week he should be granted extension of leave until the decision of the Labour Department. There is a further endorsement, on this letter by the Management to the effect that leave to the appellant had been extended upto 16th October, 1980, and that he was required to report at Rawalpindi on 18th October, 1980. This endorsement bears the signature of the appellant in token of its intimation to him. As the appellant failed to report for duty at Rawalpindi on 18th October, 1980, a fresh charge-sheet, dated 1st November, 1980 was issued to him, in his reply dated 12th November, 1980, the appellant strangely enough denied that he was either granted leave uhto 10th October, 1980 or that he was required to report for duty at Rawalpindi on 18th October, 1980. It !Was asserted in the said explanation that the letter of the Joint Director, Labour Welfare, dated 4th November, 1980, addressed to the company with a copy endorsed to the appellant establishes the appellant's right to be promoted as a Foreman. On 11th November, 1980, the Management I Issued an enquiry notice to the appellant to the effect that the domestic enquiry would be held by Mr. Ghiaysuddin on 22nd November, 1980. The appellant protested against the holding of this enquiry but the Management rejected the appellant's protest and informed him that the enquiry will be held on 22nd November, .1980, as already intimated and he should participate in the enquiry to produce his defence. However, on the request of the appellant contained in his letter, dated 22nd November, 1980, the enquiry was postponed to 26th November, 1980, when the enquiry was proceeded on various dates between 26th November, 1980 and 10th December, 1980 3. As the enquiry officer found the charges against the appellant established, as second show- cause notice was issued to the appellant on 24th December, 1980, which was accompanied by a copy of the enquiry officer's report. On the request of the appellant a copy of the enquiry proceedings was also furnished to the appellant. By his letter, dated 1st January, 1981, the appellant submitted his reply to the second show-cause notice, wherein he denied the allegations of the Management against him. It was specifically stated in the said reply that the enquiry officer had com--pletely ignored the right of the Management to transfer the appellant out. Aide Karachi. As the Management did not consider the reply to the second show-cause notice satisfactory, the appellant was dismissed from service, vide letter, dated 4th January, 1981. The appellant challenged the orders of his dismissal through a grievance petition filed before the learned IIIrd Labour Court . After serving the requisite grievance notice upon the respondent company. 4. I have heard Mr. S. P. Lodhi, who appeared for the appellant workman, and Mr. Mahmood A. Ghani, who represented the respondent company. The twin charges against the appellant on the basis of which he has been dismissed from service are firstly, that he had disobeyed and wilfully not complied with the order of his transfer to Rawalpindi and secondly, that he had unauthorizedly
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remained absent from duties without leave for period exceeding 10 days between 18th October, 1980 and 4th January, 1981. 4-A. As the second charge against the appellant rose from the first charge. I will deal with the latter charge at some length. The said charge is founded upon item (a) of clause 3 of Standing Order 15, which reads as follows ---(a) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior." 5. In order that the first charge against the appellant should constitute misconduct punishable with dismissal, it has to be shown, firstly, that the order of transfer of the appellant from Karachi to Rawalpindi was lawful, secondly, that the said order was reasonable, and thirdly, that the appellant had disobeyed this order. It is not disputed that the appellant disobeyed this order as in spite of repeated directions from the respondent company he had refused to proceed to Rawalpindi. It was, however, submitted by Mr. S. P. Lodhi, the learned representative for the appellant that the order of the appellant's transfer to Rawalpindi was neither lawful not reasonable. He contended that the order was n3't lawful as the appellant had been recruited for employment at Karachi only and the rules providing for transfer of employees of the respondent company did not apply to him as they came into effect in 1965 much after the appellant had entered the employment of the respondent company. He further submitted that the transfer orders were not reasonable as they did not consider and take into account the hardships which the appellant would face at Rawalpindi op account of the difficulty in finding suitable accommodation at Rawalpindi and also the attendant problem of proper disposal of his fiat at Karachi. On the other hand, it was con-- tended by Mr. Mahmood A. Ghani, the learned counsel for the respondent company, that apart from the fact that the respondent company had an inherent right, in the exigencies of service and their requirements to transfer an employee from one place to another, the rules governing the employees of the respondent company specifically envisaged the transfer of employees from one place to another. The learned counsel, while conceding that these 'rules were framed and came into effect after the appellant had joined the service of the respondent company, contended that the rules were applicable to the appellant as he had not only accepted upward revision of his pay in accordance with the said rules, but had also executed a fidelity bond in accordance with the said rules. With regard to the reasonableness of the transfer order, it was submitted by him. Mahmood Ghani that a Senior Mechanic, who was dealing with Mercedes cars, had suddenly died at Rawalpindi and hence it was urgently required to depute a competent mechanic at Rawalpindi and the appellant was selected for the transfer. The learned counsel further submitted that the respondent company realized that the transfer of the appellant to Rawalpindi would place a heavier financial burden on the appellant and consequently had increased his pay by Rs. 200 p.m. With effect from the date that he was to join at Rawalpindi. I will proceed to examine the respective contention of the 2learned representatives/counsel. Broadly speaking a lawful order as contemplated by the Standing Orders, would be an order which is contemplated or authorized by a law. The plea of the appellant is that he was recruited exclusively for the workshop at Karachi and hence his transfer outside Karachi would be against the terms and conditions of his appointment and, therefore, unlawful. There is, however, nothing in the appellant's letter of appointment to indicate that he was appointed solely for the workshop at Karachi. The letter of appointment reads as follows :- "SHAHNAWAZ LTD. "Super Service Station & Assembly Division. Our Ref. RG( ).Dated 10th May, 1963 Mr. Riaz Hussain, 3/D/21-7-Nazimabad, Karachi
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Dear Sir, With reference your application dated 10th May, 1963 we are pleased to offer you the post of a "Helper" with effect from 11th May, 1963 in our Assembly Division on the following terms and conditions: 1.That you are being employed in a vacancy temporarily created by work of a purely temporary nature. 2.That your services can be terminated without assigning any reason and without notice at any time convenient to the company or to the work having been completed. That you will be paid at Rs.2.80 per working day as long as you con--tinue in employment. If the appointment is acceptable to you, please join the duty immedi--ately and sign and return the duplicate copy of this letter. Yours faithfully, for Shabnawaz Limited, Sd/- Ijaz Ahmad, Service Manager. 6. The alternate plea raised by Mr. S. P. Lodhi was that since the letter of appointment of the appellant did not provide that the appellant could be transferred outside the place where he was initially recruited the appellant could not be transferred outside Karachi at least against hi; consent. In support of his contention, the learned representative relied upon the decision of their Lordships of the Supreme Court in the case of Workers v. Bata Shoe Company-Ltd. (1971 PLC 1). In the reported case, `K' who was then working as Supervisor Invoice, was ordered to be transferred from the Bata Shoe Factory to the Bata Shoe Company Retail Organiza--tion, as a/t Shop Manager at their Retail Shop at College Road Rawalpindi . This transfer was sought to be made on the strength of clause (l6) of the collective agreement entitling the management to transfer their employees from one department to another department. `K' objected to his transfer on the ground that the rules and the standing orders do not contemplate transfer of employee to a place where the said rules and orders do not apply or transfer from the factory to a retail shop. It was held by their Lordships of the Supreme Court that although the management was en--titled under clause (l6) of the collective agreement to transfer the em--ployee from one department to another department in the factory, it bad no right to transfer any workman from one place to another place out--side Bata Shoe Factory. It may be mentioned that this case was decided under the provisions of the Industrial Disputes Act, 1947, which was then in force. It may, however, be pointed out that neither to said Act or the Industrial Employment (Standing Orders) Act, 1946, nor the Industrial Disputes Ordinance, 1959, which replaced the former Act during the pendency of the above case before the Courts, provides for or contemp--lates transfer of workmen from one place to another. In my humble opinion the position appears to have been completely altered by the In--dustrial Relations Ordinance, 1969, and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as presently in force, subsection (8-A), which was added to the I.R.O., by Act XXIX of 1973, during the pendency of an application for registration of Trade Union prohibits transfer of an officer of a trade union. This suggests that but for the bar the transfer would be permissible. The said amend--ment in the I. R. O. Appears to have been necessitated by addition of Standing Order 2-A in the Standing Orders Ordinance by Act, XXIII of 1973. The said Standing Orders reads as follows: ---- 2-A.Terms and conditions of service to be given in writing. -Every work--man at the time of his appointment, transfer or promotion shall be provided with an order in writing, showing the terms and con--ditions of his service."
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7. It will be seen that the said order specifically contemplates trans--fer of workmen. I am, therefore, inclined to the view that the said amendments in the law empower an employer to transfer a workman from one place to another unless by the terms and conditions of his employ-- ment, the workman is recruited solely for or is to be employed at al particular place or in a particular establishment or section of establish--ment of the employer. In the case of P.I.D.C. Sugar Mills, Larkana v. Larkana Sugar Employees' Union, decided on 1st November, 1981, this Tribunal while holding that P.I.D.C. Was entitled to transfer its surplus staff from Larkana Sugar Mills, Naudero, to the Shahdadkot Textile Mills, observed as follows :;, . " It is now settled law that an employer is entitled on account of exigencies of his business to transfer his workmen either from one branch to another or from one project to another, provided that the transfer is not prohibited by law or motivated by mala fides or is for the purposes of victimization of the workman. In this behalf, I may refer to two decisions of the Indian Supreme Court. In the case of Bareilly Electric Supply Company Ltd. v. Sirajuddin 1961 PLC 449, the Supreme Court of India, while holding that the transfer of employees from one department to another is a matter of internal administration of the employer, observed as follows: " Transferring cooly from one department to another is a matter of internal arrangement and Industrial Tribunal should be very care--ful before they interfere with the orders made in the discharge of the management function in that behalf. The argument that the appellant did not give any reason for this retransfer though there was hue and cry against it, seems to us to be wholly beside the point. Even the Tribunal did not feel inclined to make a definite finding that it was because of the union activities of the respondent that he was re-transferred, it has only suggested that as a possibility. The failure of the appellant to give specific reason for the retrans--fer of the respondent appears to be the sole basis on which the conclusion of mala fides is founded. It is hardly necessary to em--phasis that the findings of mala fides can be made by Industrial Tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made light-heartedly or in a casual manner as has been done by the Tribunal in the present case. Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the Tribunal has based its decisions we must hold that the order of re- instatement is patently unreasonable and must be set aside." The above view was reiterated by the Supreme Court of India in the case of Syndicate Banks Ltd. v. Their Workmen (1967 PLC 357). In that case, the question which arose for determination by the Supreme Court was whether the management of Banks are entitled to decide, on a consideration of the necessities of banking business, whether the transfer of an employee should be made to a particular branch. Holding that the management was in the best position to judge how to distribute its employees between the different branches the Indian Supreme Court thus expressed itself: ---There is no doubt that the banks are entitled to decide on a consi--deration of the necessities of banking business whether the transfer of an employee should be made to a particular branch. There is also no doubt that the management of the bank is in the best position to judge now to distribute its employees between that different branches. We are, therefore, of opinion that Industrial Tribunals should be very careful before they interfere with orders made by the banks in discharge of their managerial func--tions. It is true that if an order of transfer is made mala fides or for some ulterior purpose, like punishing an employee for his trade union activities, that Industrial Tribunals should interfere and set aside such an order of transfer because the mala fads exercise of power is not considered to be the legal exercise of the power gives by law. But the finding of mala fide should be reached by Indus--trial Tribunals only if there is sufficient and proper evidence in support of the finding. Such a finding should not be reached capriciously or on flimsy grounds as the Industrial Tribunals has done in the present case."
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No doubt in the case of Messrs Pakistan Textile Mills, Karachi v. S Elected Representatives of the Workers (1972 PLC 581), my learned predecessor held that it was not permissible for an employer to transfer his workmen from one Concern to another Concern, although both the Concerns may. Belong to him, and at best he may terminate the cervices of any workmen under Standing Order 12, after giving them one month's notice or pay, but the decision in that case was founded on 2 important circumstances the first being, that the workers themselves had demanded that their services be terminated in accordance with the provisions of the Standing Orders, and secondly, there was no specific provision in the rules of the company or practice in the company for transfer of employees from one project to the other. In the instant case, neither of these conditions have been fulfilled. No demand was made by the. Workers for the termination of their services in accordance with the Standing Orders. Furthermore there is a rule of service in the P.I.D.C. Providing for transfer of the staff from one project another project in the province as has been pointed out by the learned Labour Court . Itself while rejecting the application of the respondent union for restraining the Larkana Sugar Mills and the Shabdad Kot Textile Mills from implementing the orders of transfer of the workmen :--- " Section 8-A, I.R.O. Prohibits the transfer of an officer of a trade union or a workman during the pendency of an application for re--gistration of the trade union with the Registrar, save with the prior permission of the Registrar. This would seem to indicate that where no such application…
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