2013PLC353 (PLP)

with postal receipt and original envelope having postal remarks and receipt number along with post office stamp. Learned Representative for the appellant had put certain questions to the respondent workers during their cross-examination to the effect that service of grievance notice, which are as under:

"It is incorrect to .suggest that I had not served grievance notice to the respondent prior to filing of my earlier grievance petition bearing No.60/2009. Vol. says that my first grievance notice sent through post was returned back as undelivered. It is correct to suggest that after return of my first grievance notice I had not sent any other notice or application through any process." On the other hand, appellant's witness Syed Tanveer Ahmed had deposed as under:

"It is incorrect to suggest that applicant had sent two grievance notices to the company. Vol. says that we have not received any grievance sent by the applicant. It is incorrect to suggest that first grievance notice sent through post by the applicant was deliberately refused by me to receive the same. It is incorrect to suggest that I have not replied the second grievance notice though same was received by me. I see original envelope which was sent by Labour Legal Aid Commission and addressed to the respondent on its complete address." The perusal of above evidence and the original envelope clearly reflect that the same was sent by respondent workers in their own name through Care of so it does not amount that the grievance notice has been sent by any other, person, but it is factually sent by the respondent workers, and: bears the complete address of the appellant management as admitted by; the; appellant's witness during his cross-examination. Respondent worker had produced postal receipt along with the application and copy of grievance notice, so the service of grievance notice is established toy sending grievance notice on complete address being to be served under the provisions of section 27 of General Clauses Act. Second legal objections which goes to the merits and facts to the case is that the dismissal order has been passed for the acts of misconduct after issuing charge sheet, enquiry notice and holding domestic enquiry. For the above purpose the perusal of charge sheet is very important for the same purpose the said is reproduced hereunder:

Dated 14-7-2009 Subject; CHARGE SHEET It hsa been reported against you that on 13th July, 2009 along with about 45 workers resorted to illegal strike since the time of your reporting for duty i.e. 13th July, 2009 and increase in your salary. You also instigated other workers to resort strike and due to your instigation other workers also resorted to illegal strike and did not report for duty till date. You are also continuously absent from duty for more than ten days w.e.f. 13th July, 2009. The above act on your part constitute misconduct under Standing Order 15(3) of Ordinance, 1968 and you are liable for disciplinary action. you are therefore, hereby called upon to submit your written reply within two days from the receipt hereof and show cause as to why disciplinary action be not taken against you. (Sd.) Manager Human Resources and Systems." The above charge sheet having three acts of misconduct, (i) is that the respondent worker along with 45 other workers resorted to illegal strike on 13th July, 2009, (ii) respondent worker instigated the other workers to continue the strike till the issuance of charge sheet, and iii) the respondent worker had continuously been found absented for more than ten days w.e.f. 13th July, 2009. Perusal of charge sheet itself reveals that first strike was observed on 13th July, 2009 and charge sheet was issued on 14th July, 2009, therefore, the third allegation cannot be substantiated, as the charge sheet was issued on the very second day of commencement of unauthorized absence and the absence of two days cannot be termed as a misconduct under Standing Order 15(3) of the Standing Orders Ordinance, 1968, therefore, the charge sheet is perverse and based on mala fides. Secondly, the continuation of illegal strike cannot be substantiated without any cogent and specific reason, as no other worker had been served with any show cause or charge sheet and this fact was admitted by the witness of the appellant Syed Tanveer Ahmed who deposed as under: "It is correct to suggest that all the 18 workers were permanent workers of the company. It is correct to suggest that till 13-7-2009 no charge sheet or warning letter was issued to all the 18 workers by the respondent." Regarding issuance of charge sheet and enquiry notice the claim of appellant is contrary to their stand at one place and at another place they have denied the same. In written statement appellant had pleaded that the charge sheet and enquiry notice were sent through TCS and on the other hand during cross-examination witness of the management Syed Tanveer Ahmed deposed as under:

"It is correct to suggest that applicants were continuously absent from their duty for more than ten days w.e.f. 13-7-2009. As the applicants had refused to join their duties on 13-7-2009 when he made negotiation with them, therefore, I mentioned in charge sheet about the fact of absence from duty for ten days. The applicants disclosed this fact verbally about their absence from duty. It is correct to suggest that I have not mentioned in written reply, my affidavit in evidence and even in affidavit in evidence of our witness about the version of the applicants regarding their refusal to join their duties w.e.f. 13-7-2009. It is correct to suggest that I had given two days time to the applicants to submit their reply. No complaint in writing was made to me about observing of the strike by the applicants." Perusal of cross-examination reveals that the management had in its mind' that the workers shall not be taken on duty upto the conclusion of ten days from 13-7-2009, which smells the mala fide on the part of the management and reflects the fact that the workers were in contact of the management and they would be served directly, but the charge sheet was sent through TCS." Regarding the issuance of enquiry notice the alleged enquiry notice was again sent through T.C.S. and the said enquiry notice does not bear the address of the respondent workers. The appellants have also failed in getting confirmation of the service of notice and the witness of the management Syed Tanveer Ahmed to the same effect had deposed during his cross-examination as under:- "Only one enquiry notice was issued to the applicants by the management." Perusal of enquiry notice reveals that notice was issued on 25-7-2009 for 28-7-2009 and the enquiry was completed on the same day viz: 28-7-2009. The enquiry notice was allegedly issued by Manager Human Resources and Systems and not by the Enquiry Officer and the enquiry proceedings were completed and whereas the enquiry report was prepared on 15-8-2009 and on same date viz: 15-8-2009 dismissal orders were issued. Perusal of enquiry report shows that the, same was typed with certain gaps which have been filled in by the Enquiry Officer, no chance of cross-examination, nor any adjournment was given, therefore, the enquiry proceedings and report as produced are found to be perverse, bad in law and based on mala fide consideration just in order to create ground for dismissal of the respondent workers. In view of the above, I am of the view that the order dated 7-7-2011 passed by the learned Presiding Officer, Sindh Labour Court # I, Karachi, does not suffer from any illegality and the impugned order is ultimately maintained and the above six appeals are' hereby dismissed. HBT/1/SLT Appeals dismissed.