1991 PLP 408 (PLC)

Date of hearing: 21st February, 1991. SYED ABDUL REHMAN, J: --These are petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Case of the petitioner is that respondents, Mirza Zamir Baig and M. Abdul Manan, were working with the petitioner, M/s. Kohinoor Marble Industries Ltd. The petitioner had closed their factory on 16-1-1986 and had terminated the services of all the workers, except the above two respondents. Respondent Abdul Manan continued to attend the factory upto 27-1-1986 and thereafter remained absent without intimation. Respondent Mirza Zamir Baig had attended duty upto 2-12-1985 and thereafter remained absent. Therefore, the petitioner intimated the respondents through letters dated 1-3-1986 and 11-1-1986 respectively that their services were terminated because of their continuous absence from duty for more than 10 days. The factory restarted working on 15-7-1986. On 30-8-1986 respondents Mirza Zamir Baig and M. Abdul Manan served grievance notices upon the petitioner alleging that they had reported for resumption of duty on 15-7-1986, but were not allowed to resume. The petitioner by their reply dated 28-9-1986 informed both these respondents that their employment was terminated through the above letters due to their unauthorised absence from duty, as mentioned above. Hence they were unable to accept them in employment again. On this the respondents filed their grievance petitions before the Labour Court which dismissed the same on the ground that the grievance notices as well as the petitions were time-barred. Against this order appeals were filed before the Labour Appellate Tribunal. The Tribunal came to the conclusion that the petitioners having failed to give notice of the alleged misconduct and to hold an enquiry and to afford an opportunity to the workmen to explain the circumstances alleged against them, had violated the principles of natural justice as well as the statutory provisions of the law and, therefore, their order terminating the services of the respondents, were void ab initio. Hence limitation cannot be pleaded as a bar to the grievance notices and the petitions of the respondents. The Tribunal allowed the appeals and set aside the orders of the Labour Court and directed that the respondents be reinstated with 50% back benefits from the date of resumption of work by the petitioner. Hence these petitions with the following prayers: "16.It is, therefore, prayed that this Hon'ble Court may be pleased to declare:-- (i) That the impugned decision dated 25-4-1989 announced in Appeal No. KAR-17/1988 by the Hon'ble Sindh Labour Appellate Tribunal at Karachi to the extent of contradiction and conflict with the provisions of section 25-A of the I.R.O., 1969 is without jurisdiction and of no legal effect. ; (ii) To order suspension of the decision dated 25-4-1989 of the Hon'ble Sindh Labour Appellate Tribunal, Karachi announced in Appeal No. KAR-17/1988 pending disposal of this petition. (iii) To direct the respondents pending final disposal of this petition not to initiate any action or proceedings against the petitioner for non compliance of the decision of the Hon'ble Sindh Labour Appellate Tribunal, Karachi dated 25-4-1989. (iv)To grant any other/further relief/reliefs which this Hon'ble High Court may deem fit and appropriate in the circumstances of the case:'

3. We have heard Mr. Zameeruddin, learned counsel for the petitioner and Mr. Abdul Muqtadir Khan, learned counsel for respondents Mirza Zamir Baig and M. Abdul Manan. The contention of Mr. Zameeruddin is that since the respondents remained absent from duty for more than 10 days, therefore, the services of respondent Mirza Zamir Baig were terminated by letter dated 11-1-1986 and of respondent M. Abdul Manan by letter dated 1-3-1986. The respondents served grievance notices on 30-8-1986. Since both these notices were sent after more than 90 days of the letters terminating the services of the respective respondents, hence the same could not be entertained as being time -barred under section 25-A of Industrial Relations Ordinance as well as section 15 of the West Pakistan (Standing Orders) Ordinance. Similarly the grievance petitions were also time-barred and were rightly dismissed by the Labour Court. The petitioner's counsel, therefore, concluded that the learned Labour Appellate Tribunal was not justified in holding that the grievance notices and the petitions were within time and that the period of limitation was not applicable to the same.

4. We are not in agreement with the contention of Mr. Zameeruddin, learned counsel for the petitioner. Clause (e) of subsection (3) of section 15 of the West Pakistan (Standing Orders) Ordinance treats habitual absence without leave or absence without leave for more than ten days as misconduct. Clause (iv) of subsection (2) of section 15 of the said Ordinance provides that a workman can be dismissed for misconduct without payment of any compensation in lieu of notice. Subsection (4) of section 15 of the said Ordinance makes it obligatory that the workman shall be informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer. It further provides that the worker shall be given an opportunity to explain the circumstances against him and that the employer shall institute independent enquiry before dealing with the charges against a workman.

5. We have gone through the letters dated 11-1-1986 and 1-3-1986. It is not satisfactorily proved that these letters were served upon the respondents. But even if it is assumed for the sake of arguments that the same were served on the respondents, then also these letters do not amount to a dismissal order. At the most the same can be treated as information of the alleged misconduct as required by subsection (4) of section 15 of the said Ordinance. It was obligatory upon the employer to institute independent enquiries against the respondents pursuant to these notices and to give an opportunity to the respondents to explain the circumstances alleged against them. Having admittedly not done so, the petitioners have failed to perform statutory duties imposed upon them by subsection (4) of section 15. of the said Ordinance. Hence even in the eyes of law no valid order of dispensing with the services of the respondents exists. Hence it was rightly held by the Labour Appellate Tribunal that the period of limitation had not started running against them and it, therefore, rightly set aside the order of the Labour Court.

6. Although it was not argued by the petitioners' counsel, but we would like to bring it on record that the order of termination of services carrying a stigma contains all characteristics of dismissal. Such a termination order if it is only a guise and cloak to avoid legal formalities of an enquiry under Standing Order 15(4), amounts to colourful exercise of power. Reference in this connection may be made to Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani P L D 1975 Kar.

342. In the case of Beach Luxury Hotel Ltd. v. First Sindh Labour Court reported in 1976 P L C 432 it was held that "absence for more than ten days does not by itself terminate employment. Where no charge-sheet was issued, nor order of dismissal passed, the reinstatement of the workman by Labour Court was found proper:" We are, therefore, of the clear view that the petitioners have no case. Hence we dismiss the petitions and maintain the orders of the Labour Appellate Tribunal. H.B.T./K-242/K Petitions dismissed.