1987 PLP 924 (PLC)

6. His explanation seems to be that if his mother or himself personally would not have been under the sickness, he would not have made frequent application. In other words he has given the impression that he had the sense of duty but for the reasons unavoidable. This is what, the Court can read his state of mind. R E A S 0 N S:

1. Notice of Show Cause regarding absence was given to Mr. Shahid Aslam on 8th of October, 1984, where the allegation was of general nature that he had remained absent without leave or permission obtained from the employer, and there is another annexure enclosed to show that out of 126 days, he remained absent for 67 days. In other words he did not work but spent most of the year in absence.

2. The Court has further referred to the explanation which has been tendered by the absenting employee (Annexure-B) which was also of general nature in the form of confession to of the management, to consider his circumstances which were of unavoidable nature and further qualified with this apology that due to improvement, in his circumstances of which he regretted, he would make every effort to reduce the leave in future and asked for the review of his case of dismissal.

3. If the Court refers this letter of Mr. Shahid Aslam, the Court finds no better evidence further to see any other evidence of documentary nature what has been said, when the employee has himself confessed his absence and produced no convincing explanation other than the improvement further made in the notice of grievance giving explanation of his illness and mother's illness, (Annexure-D). But if the evidence has been led by both the sides, the Court also refers, how for 61r. Shahid Aslam has mitigated his liability, taking another legal aspect, which he thinks in his favour whether the charge-sheet served with the legal requirements within one month of the cause of action, as to whether his enquiry effected under provisions of Standing Order

15. Subsection (4) of section 15 reads in this proviso that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date of which the alleged misconduct comes to the notice of the employer.

4. Indeed the employee, who is also permanent workman, is working in the industry, and also enjoys the benefits of Earned Leave, Medical Leave or Casual Leave under the Factory Act, the management still teas the discretion to proceed against the employee if he remains absent without permission unless the permission obtained in accordance A with the requirements of the law applicable to him. Equally, it is also obligation on the employer to intimate the employee whether the leave so applied for was rejected or he by his own act acquiescence or waiver of acceptance, in other words impliedly granted leave by his action, which was also admissible to the employee.

5. In this context, the Court has examined whether the application was made in time. Whether employer rejected the leave, assigning the reasons. Whether the enquiry as contemplated by law was properly followed in the legal concept.

6. The Court refers the following extracts where Mr. Shahid's evidence has been impeached in cross examination: The witness says as follows: "I did not attend duty for 126 days in the year 1983/1984. I have not read the charge-sheet whether I was absent for 67 days. I had received the Annexure-A. This is the extract of the attendance. I had given reply to the charge-sheet. I got the reply received by management and got the signature of clerk in the personnel office as an acknowledgement. Hr. Sabir Ali was co-worker in the proceedings. I signed the proceedings. I called the attendance register to prove my defence. I see the visiting card. It is not my visiting card. It is not my telephone number. I am not doing the business in the name of Shahid Brothers."

7. That what the management's witness has stated is as under: "It is not correct that the enquiry report which I have seen in the Court is not signed by the Enquiry Officer. I see the charge-sheet. The dates of the alleged absence though not shown in the charge-sheet but it contains note at the bottom that the details of the absence is annexed with the charge- sheet. There are no dates mentioned in Annexure-A-1. There is mention of months and the number of dates. It is not correct that the charge-sheet which I see in the Court is given in 1985. It is not correct that applicant made protest before the Enquiry Officer for the attendance record. Applicant had not asked the Enquiry Officer for attendance register. Record was not produced. It is not correct that I am doing business in the name of "Shahid Brothers."

8. From the evidence of the Labour Officer of the Company, the Court is definitely convinced that the respondent's witness has given the evidence based rather on imagination that what the witness has referred he has not referred the record when his own evidence stands in contradiction to the evidence of the man who is accused of misconduct and stated that the attendance register was produced in the enquiry proceedings but he has denied or shown ignorance of the non-production of the register in the enquiry. His evidence therefore at least to that extent of the record produced, is not free from criticism. Much can be said that responsible officer of the company has created confusion.

9. On the other hand the evidence of Mr. Shahid Aslam the Court appreciates his frankness and the clarity with which he has admitted his act of participation in the enquiry and his assistance of the co-worker to defend him and also admitted that he was absent. If the attendance register is not contradicted by the employee accused of misconduct that this document was called and read by the Enquiry Officer, the burden of the management was relieved. However the fairness of the enquiry cannot be doubted. But what is agitated is whether applicant was habitually absent without leave or was absent without leave for more than 10 days. This may be mentioned here that in the Show Cause Notice it is the employer who is to inform the employee whether he was habitual absent without leave or he was absent without leave for more than ten days. Clause-E of Standing Order 15 is in two parts. Therefore the Show Cause Notice is also to inform the employee of which charge he is to meet with for the purpose of misconduct in the context of judicial application of the acts and omission.

10. If the first incident took place in the month of October, 1983 and the charge-sheet is given of 8th October, 1984, it is to be seen when the first misconduct came to the notice of employer for the purpose of the cause of action to invoke the period of limitation of one month as required by subsection (4). So, misconducts of absence upto August 1984 are affected by time limitation. But if the month of August is taken as the starting point of limitation the charge-sheet is given on 8th October, 1984 or from September, 1984 taken as the point of limitation, and the most the misconduct of September, 1984 becomes the point in issue when there is also no certainty of the date to compute the time limitation. If both months of September and August are supposed to be the misconduct showing the absence, still the requirement of clause-E of ten days absence is not attracted. It will be 7 days. If the argument be that the previous conduct be taken as a habitual absence, the employer though has shown that his previous absence was not preceded by sanction of leave, he has also to show that those of absences used against the employee accused of misconduct were in the nature of the rejection of leave, though not charge-sheeted of such misconduct of those absences. The Court is also of the view that the rejection or acceptance of leave is the most important aspect of disciplinary working of industry for, the employee to know of his misconduct, then it is for the employer to accept his explanation without prejudice to his legal rights of habitual instances of absences in the future conduct.

11. The Court has not seen any application on the record but whether those previous misconducts from September, 1983 were accepted even without application.

12. Finally the question is that if the absence is not explanatory, to say that it was not wilful or intentional in the peculiarity of circumstances like illness in the family or any other reason of unforeseen circumstances, un-control-able by human being. Whether those acts and omission under subsection (3) of section 15 carry the punishment of dismissal because subsection (2) classifies the punishment to the extent whether a particular misconduct deserves fine, withholding of increment or dismissal.

13. It is true that if the employee remains absent throughout year and without permission, such absences cannot be called unintentional, only in extreme cases like short illness or on the basis of the production of, medical opinions or to apply through proper leave forum after going through the legal formalities to enjoy the benefit under the Factory Act.

14. In this peculiar case, indeed, the applicant was absent which was a shocking absence. But the misconduct of which he is accused whether comes within the classification of clause-E that is absence of ten days, to call for major or minor penalty.

15. Applicant has however made further attempt, to reconcile that position of legal aspect that mere application made for extension of leave, cannot raise the presumption that such application has been granted. This rule, he has supported by referring to the authoritative opinion of the Hon'ble Sind Labour Appellate Tribunal. Indeed this Court has also taken no other view what Mr. Sher Afgan has taken the view of law, in the matter. Indeed there is no application made by Shahid Aslam or this Court, with great effort has found none on the record. There is no permission obtained but instead by his own confessional behaviour he himself has become repentent and made a ground of the mother's illness. There is also no such application given to the management justifying his absence.

16. But here the Court has drawn the line of distinction on peculiar set of facts. In the given facts the employer desires that his habitual absence be read, though not certain about the dates and secondly the legal aspect when the cause of action arose to give the charge-sheet in respect of the incident of absence from 1983. If the Court considers the series of the absence, indeed those absences very much reflect on the employees' mental make up where he has not recognized the sense of duty, and overlooked the rules of industry regarding disciplinary working. But in the opinion of the Court, what should be the obligation of the employer that if person remains absent, he is also governed by the rules in the common relationship of the employee, by reciprocity. If the employee is absent the employer has to mark him absent and take action either by rejection or acceptance. If he continues to mark absent and places him on no charge-sheet and suddenly takes action where previous series of absences become time-barred for the purpose of taking legal action the employer can not plead or desires the Court to read those absence of misconduct as habitual absences. At least this Court does not share the view of the respondent for, it gives rise to waiver or principles of acquiesence. Waiver is the intentional abundonment of known legal right. It can F result from positive act of commission or from an omission made contrary to, or deny, enjoined, by law.

17. Therefore even the absence may be disapproved, the employer, to use those absences as habitual instances, first must gain satisfaction by rejection or acceptance informing the employee earlier in time and for the Court to raise such inference when the Court treats the absence also for more than ten days but that absence which should be intentional and then to read other habitual absences to bring the case within that purview of clause-E. Clause-E of section is in two parts by the use of word or. Obviously, therefore, if the month of August 84 or September, least it may be read it is within ten days and therefore the applicant is not coming within the mischief of section 15.

18. The Court is also further of the view that though it is difficult to know the state of the mind of the employer who did not give the reasons of every absence which was marked but at least, the Court I proceeds on this supposition and in context of the all around circumstances such as the family illness, the employer must have those feelings and therefore took no action. So those habitual absences, now are the past instances.

19. The learned counsel Mr. Kazim Mirza has also contended that there is no certainty when the charge-sheet was served. He has taken note of the conduct of the respondent that photostat copies of the proceedings of the enquiry have been placed without producing the original. He therefore has attacked the reliability of version of the respondent regarding the accuracy of the signature and the non-production of the author of the enquiry report namely the Plant Manager who considered the finding, reflect on the bona fide of the action.

20. The Court has considered the aspects raised by Mr. Kazim Mirza. Indeed the rule of evidence is that primary evidence be produced by producing the original. If photostat copies are produced which have not been challenged by the applicant himself who stated that he admits that he was absent for 67 days and the enquiry proceedings show his signature. His reply was further in the confessional form, these technicalities or objection has now no force. If the original document is admitted and instead photo copy is produced, the requirements of justice are fully satisfied unless the document was denied.

21. But as the Court has discussed the entire merits whether those previous absences are considered as habitual absence or the charge-sheet was served within one month from the date of incident the Court has come to this conclusion that even those last absences of August or September, 1984 are considered the absence is not more than ten days but it is seven days. Likewise the previous absences if not supported by rejection order as discussed earlier, cannot be now considered as habitual absences. It was the duty of the employer to keep him inform from time to time of the rejection of leave or of acceptance or to get the declaration from the Court as to the habit he has cultivated after serving the charge-sheet and to know the Court's opinion.

22. In the result, indeed the Court finds the absences of unpleasant nature of the employees who have not worked throughout the year and confessed himself but when his case comes within the legal aspect, as the Court has discovered that firstly his absence is not of ten days of September and August, 84 and secondly habitual instances cannot be now taken into consideration, as time-barred, with evidence of waiver and with no reasons and no certainty of dates which may be the flaw. The employer was also to be conscious of his legal rights, if he so desired, to take up the matter before the Court.

23. The impugned order is not sustainable. He is reinstated but he will not be entitled to back benefits in a peculiarity of the case. His leave will be adjusted from the leave outstanding. But this is also to be pointed out that Earned Leave or other benefits become admissible when the employee also works, returns the production and earns the leave to enjoy the privileges under the Factory Act. But-if employee has no sense of duty and does not earn but claims benefits, it will be nothing but an absurdity and to reflect on the dignity of the labour. In this case "he has said that his mother was not well. Circumstances were peculiar that he will show improvement." Indeed it is a sense of duty in more rigid sense what the Court feels that applicant should have appreciated. These directions of the Court are also informative to him in his better interest.

24. Regarding back benefits the facts are very peculiar. Impression has been given that he has been carrying on business. Looking to his long absence, though cannot stand legally within the meaning of clause-E of Standing Order, the Court does not favour the granting of back benefits which he himself has admitted that he has not worked for major portion of the year. Respondent has shown that he was doing business which though he has denied, the visiting card showing the telephone number that business is carried in the name of Shahid Brothers.

25. Mr. Kazim Mirza has also referred number of judicial decisions of 1985 P L C 166; 1985 S C M R 118 and 1979 P L C 479, in this Court's decision. Every case has got its own facts. Application is allowed. He is reinstated without back benefits. The intimation be sent within 7 days. M.Y.H./9481Lb.S Petition allowed.