1988 PLP 523 (PLC)

(b) Industrial Relations Ordinance (XXIII of 1969)

S8.25-A & 38(3)--Grievance petition against dismissal for misconduct of absence of more than 10 days--Application for leave and medical certificate alleged to have been sent--Service of enquiry notice for domestic enquiry not established and accused not afforded opportunity to produce evidence on such application/certificate--Labour Court awarding re-instatement--Plea that petitioner/ workman had not produced such document /evidence before Labour Court--Failure to produce such document before Labour Court, held, immaterial because employer had to establish commission of misconduct during enquiry and before passing of dismissal order--Labour Court rightly accepted grievance petition. Muhammad Aslam Kalyar for Appellant. Respondent in person. Date of hearing: 21st February, 1987. This is an appeal directed against the decision dated 30-10-1986 recorded by the learned Labour Court No-5, Faisalabad whereby the co respondent was directed to be reinstated in service without back benefits.

2. The allegation against the respondent was that he had remained absent without leave from 1-7-85 onward. The learned lower Court has accepted the grievance petition on the ground that the charge sheet was time-barred and that the service of inquiry notice was not proved. Charge-sheet was not time-barred. According to Order 15 clause (3) sub-clause (c) absence without leave for more than 10 days is misconduct and not for 11 days. If the provision had been that absence for 11 days amounts to misconduct then the period of one month would have started from the next day of eleventh day but since the provision is that absence for more than 10 days is misconduct i the absence upto the date of charge-sheet is to be taken as actionable. The period of limitation in such cases does not start.

3. However this finding of the learned lower Court is correct that service of inquiry notice was not established. No copy of the inquiry notice was produced in evidence. One is on the record which is dated 8-3-86 but no postal or A/D receipt or undelivered letter containing the notice is on the record. There are three undelivered letters but they bear the dates as 8-8-85 13-10-85 and 13-5-86. It is thus clear that no inquiry notice for the dated 11-3-86 was sent near about this date. It has been argued by the learned counsel for the appellant that no application for leave or medical certificate was produced. The argument is without force. If inquiry notice had been served the respondent would have an opportunity to produce the said document before the inquiry officer. The failure on the part of the respondent to produce the said document in the lower Court is H immaterial because the appellant had to establish the commission of the misconduct during the inquiry and before passing the order of punishment. The learned lower Court has, therefore, rightly accepted the grievance petition.

4. As a result the appeal fails and is dismissed. A.E./307/Lb.P Appeal dismissed.