1991 PLP 301 (PLC)

Ch. Muhammad Ashraf Khan for Appellants. Sattar Muhammad Awan and Messrs Hamid Hussain & Co. for Respondents. Date of hearing: 14th March, 1990. These two appeals are directed against the order, dated 21-5-1989, passed by learned Presiding Officer, Sindh Labour Court No.I, Karachi, whereby the respondent workman, Akhtar Ali Hur was ordered to be reinstated in service without back benefits. Appellants employer, K.P.T, have filed appeal against the order of reinstatement whereas respondent Akhtar Ali also filed counter-appeal against the order denying him back benefits. I propose to dispose of both the appeals by this single decision.

2. Mr. Sattar Mohammad Awan holding brief for M/,s. Hamid Hussain & Co. learned counsel for the K.P.T. moved application for adjournment which is rejected for the reasons recorded thereupon. I have heard Mr. Ch, Muhammad Ashraf Khan, learned counsel for Akhtar Ali Hur and have also gone through the record and proceedings of the case.

3. The admitted facts appear to be, that the respondent remained absent from duty from 29-3-1982 without any information or application for leave. He was charge-sheeted for misconduct for continuous unauthorised absence from 29-3-1982 without information. He, however, reported on duty with Medical Certificate on 14-3-1983 but he was allowed to resume duty from 2-5-1984. After domestic enquiry, in which the respondent participated, the respondent was found guilty of the said act of misconduct and was consequently dismissed vide order, dated 20-9-1986. During the course of enquiry he had filed a `civil suit' for declaration that the show-cause notice was illegal but plaint was rejected. Thereafter he served` grievance notice upon the appellant on 18-2-1987 and filed grievance petition on 12-3-1987. The grievance petition was dismissed by the learned Labour Court on 8-10-1988 both on the point of limitation as well as on merits but the order of the learned Labour Court was set aside by this Tribunal by order, dated 19-3-1989 whereby it was held that the application was within time but the case was remanded back to the learned Labour Court to give decision on merits after examining the Enquiry Officer. After examining Enquiry Officer the learned Labour Court has held enquiry to be unfair and consequently ordered to reinstatement of the respondent.

4. The main factors that weighed with the learned Labour Court were certain admissions made by the Enquiry Officer, Syed Masood Ahmed Zaidi in the cross-examination, which I will presently discuss. He has admitted that the depositions of witnesses were not recorded in his handwriting but were recorded probably by Stenographer. There is no provision of law or rule requiring the Enquiry Officer to write down the statements in his own handwriting. Each page of the enquiry proceedings is signed by the Enquiry Officer as well as by the respondent who admittedly did not raise any objection with regard to this procedure. This admission would not therefore affect the result of the enquiry. The Enquiry Officer has also admitted that enquiry was concluded on 3-12-1983 but he submitted his report on 22-8-1985. He had tried to explain this delay, by stating that he had to look after two other important assignments and he had completed the enquiry report on the first available opportunity. No doubt under the K.P.T. Rules, as pointed by learned Labour Court, the enquiry report had to be submitted within ten days unless the period was enhanced by the Competent Authority. The rules do not provides for any consequence if the report is not submitted within specified period. This provision is, therefore, directory and not mandatory. The very fact that the Competent Authority accepted the report after expiry of the specified period would show that the Competent Authority would be deemed to have enhanced the time for submission of the report. This inordinate delay would also, in my opinion, not vitiate the Enquiry Report. The learned Labour Court has referred the case of Khadim Hussain v. Punjab Road Transport Board 1986 P L C 677 but in that case, apart from the delay, the charge was not proved against the workman and, therefore, learned Punjab Labour Appellate Tribunal had allowed the appeal.

5. The learned Labour Court has observed that there is ambiguity in the charge-sheet. According to Map Saleh Mohammad, witness for the appellants the respondent was charge-sheeted for continuous absence upto the date of charge-sheet viz. 27-12-1982 whereas according to the Enquiry Officer the charge related to the absence of the respondent till the date of enquiry which was March, 7933. The charge-sheet which is also reproduced in the enquiry report may be reproduced as under:- "You are hereby required to give your defence, for which you are given seven days from the receipt of this charge-sheet to the following charges:- Misconduct for your continuous unauthorised absence from duty with effect from 29-3-1982 without any information''.

6. In this context Mr. Ch. Mohammad Ashraf also relied upon Exh. R.W. 1/2 produced by witness, Saleh Muhammad which also shows a `Note' of General Manager with regard to the case of the respondent which was to be put up before the Board's Disciplinary Committee for decision. In this `Note' it was shown that the respondent was charged for misconduct for continuous unauthorised absence from 29-3-1982 and the Enquiry Officer had held that the charges were proved against the respondent. It also contains the Deputy Conservator's remarks who recommended his dismissal from service due to his long absence. The General Manager's (Operation) remarks may be reproduced as under:- `Policy of the Administration/Board m dealing with such long absence (2 years) may be followed in this case also. On this `Note' second show-cause notice was issued to' the' respondent whose reply was considered by General Manager (Operation) which is Exh. R.W. 1/3. It clearly showed that the charge-sheet was sent to the respondent on 27-12-1982 and after this show-cause notice the Board decided to dismiss the respondent. The contention of Mr. Ch. Ashraf Khan is that the Competent Authority was misguided by the remarks of the General Manager (Operations) that respondent remained absent for two years and therefore, awarded punishment for dismissal.

7. Thus from the record it is clear that neither the Enquiry Officer was clear in his mind as to for what period of unauthorised absence, the enquiry was being held against the respondent, nor the punishing authority was aware of the period of absence proved against the respondent, while awarding the punishment. The respondent was charged only for being absent upto the date of charge-sheet. No doubt he had remained absent even after that date upon 14-3-1988, but he was not charged for remaining absent for that period. No other charge-sheet after one issued on 27-12-1982 was issued against the respondent charging the respondent with absence up to 14-3-1983. With regard to his absence from 14-3-1983 when he reported for duty alongwith the - Medical Certificate to 2-5-1984 when he was allowed to resume, it is doubtful whether this absence was wilful and without permission, The Punishing Authority appears to have taken into consideration his absence upto 2-5-1984: while awarding punishment. The possibility cannot be ruled -out that if the proper facts had been put before Competent Authority, that absence proved against the respondent was only for about nine months from 29-3-1982 to 27-12-1982 and not for two years, the maximum punishment of dismissal might not have been awarded. Thus neither the Enquiry Officer had applied his mind fully to the facts of the case while: holding the respondent guilty nor tire Punishing Authority was fully aware of the facts of the case while awarding punishment, Such report of the Enquiry Officer or the punishment thereupon, cannot be said to be fair and proper. The respondent has been punished for remaining absent for two years, a charge of which was never communicated to him and on which he was not afforded any opportunity to be heard. Therefore, such order of dismissal would be against the provisions of Standing Order 15(4) of the Standing Orders Ordinance, 1968. The dismissal order had, therefore, been rightly set aside by the learned Labour Court. The Appeal No. KAR-324 of 1989 of Trustees of the Port of Karachi I against the order of reinstatement of Akhtar Ali is, therefore, dismissed.

8. Similarly Appeal No. KAR-314 of 1989 of Akhtar Ali against the I dismissal of his claim of back benefits by the learned Labour Court is also dismissed as he has been ordered to be reinstated on technical ground and as such he was not entitled to the salary for the period he never worked. Reliance in this respect is placed on the decision of this Tribunal and that of the learned Labour Appellate Tribunal Punjab in the cases reported in 1974 P L C 84 and 1980 P L C 74, respectively. M.Y.H./1678/Lb.S Appeals dismissed.