This by no means should be presumed that workers are in no way responsible for labour unrest or for creating problems for employers in the smooth working of industrial and commercial establishments. Of late, there has been an increased tendency in Banks and Financial Institutions of employees who have indulged in defalcation wilfully and deliberately retaining bank customers money, and otherwise conducting acts unbecoming the status of an employee in banks and financial institutions.
It goes without saying that banks act as trustees or custodians of the amount of the account holders. Employees of banks and financial institutions like "Caesar's Wife" should be above suspicion. Business of banks and financial institutions depends on its goodwill and reputation, and if banks and financial institutions employees commit defalcation, fraud, misappropriate, fraudulation and negligence, then banks and financial institutions will suffer irreparable loss as people may even go to the extent of closing their accounts. This apprehension was even made in the Supreme Court of Pakistan's decision reported in the 2007 SCMR 198. If an employee of a bank or financial institution indulges himself in any gross negligence whilst discharging his duty in service, this is misconduct in law. Misconduct needs not to be so in carrying on the service or business.
It is sufficient if it is a conduct which is even prejudicial and or likely to be prejudicial to the interest or reputation of the employer and the employer will be justified not only in taking action if he discovers at that time, but also if he discovers it afterwards in dismissing his employee. In other words, misconduct is a wilful and intentional doing of act which the employee knows to be wrong or which he does recklessly not care for its results. It is of some interest to mention that the apex court in this country has of late taken a very serious view in matters pertaining to bank employees committing defalcation, misappropriation, fraud and fraudulent transactions etc. In fact, the Superior Judiciary has even gone to the extent that such conduct on the part of the bank employee disentitles him to remain in service in a bank. In the case of M/s. Izzat Baig Awan, the Supreme Court of Pakistan has been pleased to observe that banks and financial institutions are one of trust reposed by the public at large.
Nowadays in banks, keeping in view the nature of the duties of their employees, banks cannot afford breach of trust by retaining in service an employees, who is involved in either criminal cases, defalcation, misappropriation, fraud and fraudulent transactions etc. Furthermore, once misappropriation is committed by a bank employee and it is established, then irrespective of the amount involved, dismissal will follow. In fact, in SBLR 2008 Supreme Court 83, the Apex Court has even observed that business of banks and financial institutions is based on mutual trust between the banks and financial institutions and the customers and furthermore that the banks and financial institutions act as a custodian of public money and any slightest doubt or suspicious with regard to its activities and transaction or any dishonesty of its employees will shake the confidence of customers resulting in ruin of the business of the banks and financial institutions. So also in the case reported in SBLR 2009 SC 63 in relation to fraud and dishonesty committed in Banks and Financial Institutions, disciplinary action taken and a criminal case was subsequently instituted, such an employee was acquitted by the court, nonetheless courts have held that each case is to be decided on its merit. Even if the bank employee has been acquitted on criminal charges in relation to defalcation and misappropriation of the amount, the bank employee can nonetheless be proceeded against with disciplinary proceedings resulting in his dismissal on account of defalcation, misconduct, fraud and negligence. The employer can take appropriate punitive disciplinary action. In fact, in one case reported in 2004 SCMR 149, involving a bank employee, the Supreme Court of Pakistan held under the Industrial and Commercial Employment (Standing Orders) Ordinance 1968, the law cannot be interpreted in such a manner whereby it allows a delinquent to go scot-free even if a charge sheet is issued after 30 days. Such an interpretation would be neither logical nor reasonable. Minor delays, if any, can be ignored in case where bank employees commit embezzlement and the charge sheet can be issued even after thirty days. It is, therefore, very clear and obvious that misconduct in banks committed by the workman is taken a serious view of even by the Apex Court and irrespective of the time, keeping in view the gravity of the situation; courts condone the delay even if the charge sheet is issued beyond 30 days and disciplinary action is undertaken by the employer. Merely because some of the lower courts show benevolence and give undue sympathy to bank employees committing fraud, misappropriation and defalcation of bank accounts or other such grave acts of misconduct does not mean that this is the law of the Land. Employees of the Bank and Financial Institutions must be cautioned that temptation and negligence will not be encouraged in such manner when they are dealing with public money. This does not mean that workers in banks are entitled to commit any act and get away with defalcation, misappropriation or illegally retaining bank amount and returning it subsequently. This is based on the principles laid down by the Supreme Court of India in AIR 2000 SC 3129. In fact, the present Chief Justice of Pakistan in the case of Muslim Commercial Bank, even went to the extent and observed:-
"...it is well settled that as soon as misappropriation of public money is established, the delinquent shall be deemed guilty of embezzlement, therefore, no leniency in this behalf can be shown to him. In an instant case as well, the respondent has been found misappropriating public money from the bank may be temporarily but as far as charge is concerned it stands established without doubt leaving no option for employer except dismissing him from service to meet the ends of justice."
Bank employees under any circumstances must ensure that whilst they are in bank service, they should maintain discipline and not indulge in such grave misappropriation, fraud and misconduct as there is no way out if they are proceeded with through disciplinary action in accordance with the law.
Yet another area where workers often indulge causing damage is to resort to slowdown of work. 'Go-Slow' is not like an ordinary strike, which has been recognised as a lawful weapon under certain circumstances and is controlled by the provisions of law. 'Go-slow' has, on the other hand, been made misconduct under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to this Ordinance, 'go-slow' means an organised, deliberate and purposeful slowing down of normal output of work by a body of workers in a concerted manner, and which is not due to any mechanical defect, break-down of machinery failure or defect in power supply or in the supply of normal materials and spare parts of machinery. 'Go-slow' is thus a picturesque description of deliberately delaying of production by workmen pretending to be working in the factory. It is one of the most pernicious practices that discontented or disgruntled workmen resort to. It would not be far wrong to call it dishonest. For, while thus delaying production thereby reducing the output, the workmen claim to have remained employed and thus be entitled to full wages. Apart from this, 'go-slow' is likely to be much more harmful than total cessation of work by strike. For, while during a strike much of the machinery can be fully turned off, during the 'go-slow' the machinery is kept going on at reduced speed, which is often extremely damaging to machinery parts. For all these reasons, 'go-slow' has always been considered a serious type of misconduct. It is also an act of unfair labour practice in terms of Industrial Relations Law.
Both in the case of piece-rated worker and in the case of a time-rated, during the time the employee has to work, the employer is entitled to expect from him the average speed and normal skill. When the employee is paid according to the work done by him, it is rather an incentive to do more work than to do less work. Though a piece-rated worker may reach heights on certain occasions, which is not possible to reach everyday, it is expected of him to use his normal skill and average speed during the time, he is serving the employer. The concoction that when an employee is paid according to the work he does, it is open to him to produce more and obtain better wages, it is equally open to him to produce less and obtain less wages, has been held by courts to be untenable. Though a minimum of workload may not be prescribed, the condition of service must require that during the time the employee is in service, he must at least give to the employer what he is entitled to viz, the minimum of his ability and skill and of his time. If he deliberately refuses to give that minimum he is as much guilty of misconduct and unfair labour practice as he would have been if he did not come up to the minimum, if such minimum has been prescribed under the contract of service. In other words, whether the workmen are paid on the system of piece-rate or by any other system, the company, has the right to expect of a workman a normal day's work, which ordinarily means an average daily production of the past before any trouble started. 'Go-slow' tactics is not a legitimate weapon in the armoury of labour. It is an insidious method undermining the stability of a concern. The fact that the workers were dissatisfied and were pressing for redress on various matters cannot be an excuse for adopting a go-slow policy and much less would it justify such a policy being practiced for any length of time. Whatever the provocation, there can be no justification whatever for 'go-slow' tactics, be they the same for a short-time or for a long period. The primary object of industrial legislation and the creation of the Labour Courts, as also the Labour Appellate Tribunals is to bring about industrial peace. The main object underlying the creation of different machineries to settle or adjudicate the industrial dispute, is to see that peace is maintained in industrial concerns and any dispute does not affect the production which is likely to hamper the economy of the country. Deterioration of the normal quality of work should also constitute go-slow. Thus, even if the quantity of output is not slowed down, the conduct of the employee should constitute 'go-slow', if the normal quality of work deteriorates. It may, at times, be difficult to establish deterioration of normal quality as being attributable to workmen. As to deterioration of quality, opinion may vary between the employer and the employees. In Pakistan, we hardly have specialised institutions or organisations doing quality control and hence independent expert opinion may not be readily available. Physical inspection is liable to be deceptive. Nevertheless, deterioration in quality may result in more wastage, no hard and fast rule in this regard can be evolved.
As against this, decrease in production, quantity-wise, can be found out by comparing production figures for the period immediately before the coercive tactics of 'go-slow' is resorted to by the workers. That comparison can be made on the basis to establish 'go-slow' showing production before and after the 'go-slow' commenced. Thereafter, the role or the contribution of those responsible for 'go-slow' needs to be highlighted. Let the initiative to collect statistical data be taken by the Employers Federation of Pakistan in this behalf.
Thus following the recent amendments, 'go-slow' can be more readily established provided accurate statistical data is made available to the court of law. Moreover, in order to completely eliminate the chances of this pernicious tactics, it is suggested that the penalty be further enhanced and the fine be collectively imposed on the Collective Bargaining Agent for acts of 'go-slow' resorted to by workers. In this way, the union will be made more directly involved accountable and made responsible in case of 'go-slow'. Likewise provision be made in law, whereby the employer in case of proven 'go-slow' be allowed to deduct, to the corresponding extent, the wages of the workers for giving production less than the average, normal production.
Of late, there is a growing tendency on the part of certain professional Labour Leaders and even Members of some Bar to take advantage of a vacuum on account of sincere and genuine Trade Union workers, who have started striking to resort to illegal strikes. For apparent little or no reason for almost one month, a strike was resorted in the tyre and rubber factory of a well-known company and immediately thereafter the same person instigated to resort to a strike in a ceramic factory. These strikes were prohibited by the National Industrial Relations Commission, yet they continued. It is high time that workers in this country must realise that they will not be exploited any further either by professional labour leaders or by some advocates, who have their own axe to grind. Such persons encourage mushrooming trade unions in the factory, including joining hands and affiliation with political parties. Such members of the bar are responsible for instigation of illegal strikes, slow down should have their licence to practice cancelled by the Provincial Bar Council.
Emergence of mushroom unions proportionate to the creating of political parties, and sometimes, even more, is another weakness to a healthy trade union movement in Pakistan. The political ideologies and convictions dominated the cause of workers for their economic betterment and very often political exploitation becomes the net result in the name of workers. Inter-union and intra-union rivalries generates in such situation contributing to the weakness of worker's causes.
The National Commission on Labour in India has made an exhaustive discussion on this issue as follows:
The splitting up of unions and formation of new unions having sympathies with political parties have permeated unions operating at different levels. In many important industrial units, unions whether affiliated to central organisations or not operate independently, each claiming to speak on behalf of all workers. This rivalry is taken advantage of by the employers by playing one union against another. The Code of Conduct evolved in 1958 provides some solution to dilute and reduce inter-union rivalry. However, the parties of the code themselves do not feel compelled to respond to those terms and so it remains a no effective part in the code. Intra-union rivalry generated mainly by personal consideration adds to the confusion.
Raising the minimum number of persons required to form a union is suggested as a remedy to avoid multiplicity of unions. The National Commission on Labour considers it appropriate to raise the number required for starting new unions to 10 percent (subject to a minimum of 7) of the regular employees of a plant or 100, whichever is lower.
The principle of 'one union, one industry' recommended by the National Commission on Labour in India may eliminate this vice. This principle is well-accepted by all national federations of India and perhaps in Pakistan. However, they differ in the modus operandi, as to whether existing membership should be the criterion or new ballots be applied to choose the union, still remains a matter of national debate.
The very fact that, in modern society, the individual necessarily loses control over his own life makes him desire to regain collectively what has become individually impossible. In modern society it tends to destroy the individual's confidence in his capacity to control his own life and thus weaken the feeling of personal responsibility for his own social environment. However, the growth of trade unionism has undoubtedly contributed to awakening among wage earners of an awareness of their own dignity and importance. There is a long tradition among British Trade Unions in favour of the workers having some share in the management and control of the industries in which they are established.
According to a recent address of our President, the population of Pakistan is 200 million. With no opportunities of further employment in the private sectors available and with continuous loss in the public sector, seeking employment is one of the most difficult tasks confronting the government to absorb unemployed persons. Workers already employed in multinationals and in good Pakistani, well-managed, law-abiding concerns, must realise that their main focus should be to ensure that the jobs are retained and they do not create problems for the employers. Little do some workers realise that in cities specially Karachi and Lahore, there are industrial units notably manufacturers, pharmaceuticals etc, where in the workers' canteen, free food of unlimited quantity is provided to the workers. They should be grateful to Allah that they are provided food free of cost. Yet there are instances where such workers, through their unions insist on chicken and mutton biryani, good quality meat, vegetable and fruits and sweet dishes to be served daily and if there is minor difference in the quality of food or delay in service they may raise hell on earth. This attitude should come to an end. Furthermore, workers must realise that their survival depends on the survival of the industry. In Western countries, in case of loss-making concerns, the unions and the workers come up with a voluntary offer, for moratorium on increasing wages and in some cases have even voluntarily suggested reduction in salary and a cap on increments etc, as workers contribution to ensure that the industry survives the financial turmoil. It is far better to work with less amount then to remain in unemployment. This gesture on the part of the workers is one way of avoiding lay off, retrenchment and termination of the service of workers. Another area where workers will have to realise their responsibility is to discuss demands with the employers, keeping in view the capacity of the employer to pay, and benefits being available in comparable concerns. The capacity of the employer to pay can be ascertained by reference to audited profit and loss accounts and the balance sheet. If a company suffers loss, workers cannot claim that the loss was due to no fault of the workers but that of the management. If this analogy is to prevail, then in case of profits made by a company, workers cannot claim that it is due to the workers' contribution or profits have been made because of the efforts of the employers. Financial results is a result of joint efforts, both of the employer and workers. Just as in the case of profit, the workers insist on increase in financial benefits, in case of loss workers must equally be ready and prepared to either reduce the existing terms and conditions of the service and or agree for a moratorium for some years against any enhancement in financial benefits. It is only thus that an industry can survive. Both labour and management are the two wheels of the industry, much in the same way the bench and bar, are the two wheels of a legal law court chariot. If either of the two does not function in unison, the industry will collapse. We have seen an unsuccessful rule of the military in this regard. Now that democracy has dawned, let democracy prevail and this can only be possible, if there is sincerity not only on the part of the workers, employers but the government. (The writer is an advocate of Supreme Court)