1987 PLP 910 (PLC)

On 12th day of April 1986, Labour Court had given decision that Mr. Nazir Ahmed Malah, who is employee of the Steel 'Hill, as Crane Operator, since 2-11-1978 be given the opportunity to explain about the absence of the illness in his family which compelled him to leave without permission and whether his absence for more than ten days, shown in the notice of show cause of his absence from 1-4-1985 was intentional absence or unintentional.

2. The observations of the Court were significant, in para. 27 of the decision. The Court has observed that each case is to be examined on its own facts, based on the convincing evidence whether there was compelling reason to leave for home in such incident of illness of family nature and whether the loss has occurred to the management by his absence.

3. Mr. Nazir Malah had taken this ground that his absence was due to wife's illness. He suddenly left for Larkana and given the application to some one who submitted application late before the management, on 15-4-1985.

4. Whether the notice was properly served on the applicant, it is on this ground alone the enquiry was redirected that he should have an opportunity to explain if there is misconduct.

5. The matter has again come before the Labour Court. It appears that management was not satisfied and dismissed Mr. Nazir Ahmed Malah, again, on 20-5-1986.

6. His grounds, on which he has again preferred application for the redress of grievance is that Enquiry Officer acted as judge, and a prosecutor, in other words cross-examined the applicant, which was in excess of his jurisdiction.

7. His second ground is that his absence was not wilful, as he had applied for leave from the credit of his earned leave and no such order of rejection of his request, for the leave due was communicated, to bring the case within the meaning of the Standing Orders, of the misconduct.

8. He was also not given the copy of the second show-cause notice, or the enquiry report. This is in clear violation of the principles of natural justice.

9. Respondent has taken very simple defence that fair and impartial enquiry was held and therefore no relief of reinstatement as desired by Mr. Nazir Ahmed can be granted. In other words respondent supports the finding of the Enquiry Officer. R E A S 0 N S:

1. Indeed the enquiry proceeded on the lines, the Court had directed. But whether the appreciation by the Enquiry Officer of the fact regarding the sickness of the applicant's wife to justify, Nazir Ahmed's leaving of duty without permission was the proper appreciation by the Enquiry Officer or the jurisdiction exercised was beyond the jurisdiction of the charge sheet to account for the absence which was not the subject-matter of charge sheet which Mr. Shahani has so strongly pleaded.

2. The Court has first examined the application sent by Mr. Nazir Ahmed, which he so promptly made informing the management of his wife's illness, on 3-4-1985, what the order in the management has passed thereon, is of recommendation nature. It reads: "Leave not recommended. Disciplinary action may be taken for remaining absent for more than ten days."

3. There is another endorsement by A.S.P. Mechanical, it reads: "The application was received in my office on 15-4-1985. Ten days report has already been sent to ASP Mechanical and Manager Administration".

4. This is exactly what the management officials took the note of the applicant's conduct and their intentions to proceed against him for the misconduct committed of the absence from duty.

5. This document, the Court has attached importance, firstly if the employer found that his wife was seriously ill, and under the Factories Rules, the employee enjoyed the leave, such as earned leave, medical leave and any other leave by virtue of the benefits, the employee enjoys as a permanent workman, the normal rule of human reasoning will be to grant him leave if to his credit and of the nature which is beyond the control of human being, by virtue of family relationship, understood in the human society. If the Court proceeds further, that the employer had taken the view of his own judgment that the applicant will be placed on the enquiry to explain his absence, despite the request made for the illness of his wife, which in the normal course of the human faculty of reasoning, as stated earlier, should have been considered on compassionate consideration, with due regard to the fact, was his leave due? Or no other reason, the employer, had disclosed that by his absence the production, or the important working suffered, by no other substitute. The evidence, which the applicant, had to adduce before, the Enquiry Officer regarding wife's illness, could no better be, than the rational evidence of his own statement, on oath that his wife was seriously. What further evidence of documentary nature could best be available, if the man was resident of country, side and not so fortunate to have the excess to the City hospitals for the management's satisfaction.

6. Equally, the management has not placed any clear data, by the production of the envelope, to show the actual date of communication, whether made promptly as the application shows the date of 3-4-1985, at least to exclude doubt whether the application was received late or it was a cover to legalize and justify the absence of the wife's illness, in the proximity of the time.

7. The second aspect is that, if the employer was within its jurisdiction, to proceed against him, on the charge sheet, that employee should have the sense of duty, by obtaining permission in advance, and such disregard to the rules, is against the spirit of industrial working, the Court has to judge the circumstances, the state of the mind of officials whether they rejected leave, by assigning reasons that no leave was due in the account or there was obstruction in the working, the Court has to take judicial view of the misconduct. Whether the misconduct, as classified in section 15 sub clause 3 whether be taken on its plain reading that ten days absence from duty is a misconduct. The Court is to examine this aspect whether the absence was wilful, intentional and deliberately. But before Court examines this aspect, Mr. Shahani counsel for the applicant has gone further to refer to the evidence to show that the Enquiry Officer exceeded its jurisdiction to consider that aspect which was not in the charge sheet. He refers to the following extracts: "Is it correct that you had put the question from Nazir Ahmed that he was absent from 1-4-1985 to 18-4-1985. It is correct that he gave the answer that it was due to the illness of his wife. I had also asked question from Nazir Ahmed that he had remained absent from 9-5-1985. He also gave the answer that from 12-5-1985 he was not well and he sent the intimation to the authorities. There is no mention in the show-cause notice of 9-5-1985. The witness voluntarily explains that he asked about 9-5-1985 because as Enquiry Officer he wanted to know when he resumed duty after the absence of April."

8. Mr. Nazir Ahmed Memon, a Junior Officer of the respondent mill has also made the clear confession that letter RW/3 to RW/12 were taken into consideration for awarding punishment. He has referred to paragraph 6 of his affidavit and stated that Mr. Nazir Ahmed Mallah remained absent for whole month of May 1985 except 4 days. In July 1985 he remained absent for the whole month except 3 days. They had not considered his absence for remaining absent in the month of May and June 1985. The witness also has confirmed that his 16 days leave still is outstanding in his account that the Enquiry Officer had to give freedom to the employee, to Plat up his case as best as he could. The contention that the Enquiry Officer assumed the role of a judge, no doubt in the legal terminology he is not the judge but his position, is akin, to that of judge, who also has a privilege, as the judge has under the Evidence Act to seek clarification as for as to advance the administration of justice, even in the domestic forum where he sits, with the initial concept of being fair and just, with his, recommendation to the employer regarding misconduct, by the application of his mind. Likewise he is to answer, the point of reference what was given to him, in the enquiry and not to go beyond the enquiry, which can re-act on his mind, regardless of the fact, that applicant may have committed another misconduct, In the peculiarity of the circumstances, if the Enquiry Officer asked clarification of his subsequent, absence in good faith, the inference of mala fide attribute, cannot be extended, that the Enquiry Officer was influenced by that fact if he conducted the proceedings honestly. Whether his conclusion of holding the applicant guilty of misconduct was on the evidence what appealed, to him which does not appeal to the Court of law, that such can be misconduct on the ground of illness, of a family member of an employee who had no other course, when he speaks of the seriousness of the illness of wife.

10. Finally the question is of the application of section 15 of the Standing Order. Section 15 of Standing Order Ordinance is in two parts, Subsection (2) and Subsection (3). Subsection (2) speaks of the degree of punishment of various nature like fine, reduction of rank, withholding of increment, and lastly the dismissal. Subsection (3) speaks of the acts and omission of misconduct, of various types like theft, fraud, dishonesty, damage to the property and other omissions like absence, negligence or breach of rules and more serious omissions like disorderly behaviour, violence, strike or other incitement.

11. Each case therefore is to be considered in the context of the proviso, whether the circumstances explained mitigate the liability, to the minor punishment or the circumstances do not exist of awarding punishment that no misconduct is at all conceive-able in that context.

12. The arguments are also raised regarding time limitation that the notice of grievance is not within time limitation. If date of 19-6-1986 is the starting point of limitation from the date of dismissal, the cause of action or grievance arose from that date, that is, the application is to be preferred within three months of the cause of action viz. 19-6-1986. If within time notice is sent to the employer, the employer has to send the reply within 15 days, that is, the time starts from 4th July 1986. It follows that application was within time.

13. The Court also further is of the view that if notice of grievance was given in the first application and the second application has followed after the Court's directions for the enquiry, the first proceedings shall be deemed to be in continuation of those proceedings after coming in the Court to which notice of grievance will not be the mandatory requirement to invoke the time limitation if the grievance was first placed for its redress and the Court intervened for fresh enquiry to review the action of dismissal or any action passed by the employer when both parties had already surrendered to the jurisdiction.

14. In the result, the impugned conduct of Mr. Nazeer Ahmed of which the employer has held him guilty the Courted has no reason to interfere with the discretion used by the employer to prefer charge sheet against him. But the circumstances, in which the charge sheet was preferred the Court is of the opinion that if the Earned Leave of the applicant was due, and the circumstances of the illness of family nature were beyond his control, in the human relationship of which he is the sole bread earner, this cannot be wilful misconduct under section.

15. When there is also no evidence that the employer could not replace substitute or shown that it affected working and there was loss of production of being indispenseable. The Court is also of the view that the employee if has the benefits admissible to him such as the Earned Leave or Medical Leave or any other leave the impugned action in the circumstances peculiar as these, the Court does not approve of such dismissal where person is to lose his job. If the misconduct is not of serious nature like violence, theft, damage property or strike. The Court is also further of the opinion that the employee is also under obligation to obtain the permission and also for the employer to' discuss the reason of rejection of leave in case of illness, for the Court, to have the idea what factors prevailed o such rejection.

16. There is no doubt about it that sense of duty in every activity of life, is the recognition of once personality, and also, reflects the dignity of labour for legitimate earning, for the employee should also know that the Earned Leave is given, as a benefit from the period of/working in any industry.

17. If such being the ground of illness indeed, this is not a wilful misconduct, but these directions of the Court are informative to the applicant that he must acquire the virtue, by taking ment outlook, that by his absence, the sense of duty, is impaired and he is to avoid such absence, which may result in the disciplinary action of his habitual absence, which he must avoid.

18. The impugned order is set aside. He is reinstated, but regarding back benefits, his absence shall be adjusted from the leave due. He will be entitled to back benefits at 25$, for the employer also gave no reasons of the rejection of leave but application was made promptly of illness in the family. Application is allowed accordingly. Intimation be sent of reinstatement within 15 days to the Court. M.Y.H./951/Lb.S Petition allowed.