1982 PLP 1032 (PLC(CS))

"Mr. Qamarul Islam Siddiqui, 12/16, Delhi Colony, Gizri Road, Karachi. Dear Sir, We note with regret your continued irregular attendance. While we sympathize to your heart problem, you will appreciate that the job of a telephone operator in any organization requires regular and punc tual attendance. With anticipated increase in volume of work we require a telephone operator who will attend his duties regularly and punctually which according to your past performance could not be able to do. This being so, we regret having to terminate your services with effect from 13th May, 1981. The Accounts Department will be authorised to clear all your dues including notice pay for one month as provided in para. 5 of your letter of appointment dated 10th September, 1979 issued by us and accepted by you after submission by you of a Clearance Certificate. Thanking you, Yours faithfully, . Sd/Mohammad Yaqoob Beezanho, Deputy Manager (Admn.)." The learned Labour Court has held that the termination of service of the respondent was on account of his alleged misconduct, but he was neither issued a show‑cause notice nor charge‑sheet nor was he given an opportunity of explaining the circumstances appearing against him. In other words, the learned Labour Court considered that the respondent's case was governed by the provision of clause (5) of Standing Order

12. However, toe learned Labour Court has observed, perhaps inadvertently that the respondent's case falls under clause (3) of Standing Order

12. I will first deal with the issue whether the services of the respondent were terminated on an allegation of misconduct and hence his case is covered by clause (5) of Standing Order

12. Although the letter terminat ing the services of the respondent refers to the irregular attendance of the respondent, but at the same time sympathizes with him for his heart trouble and recognizes the fact that the irregularity in the attendance of the respondent and want of punctuality were solely on account of his ailment. It was pointed out by this Tribunal in the case of Rice Export Corporation v. Ghulam Abbas and others (Appeal No. KAR‑0i 41,),1 decided on 11th May, 1981, that misconduct for t he purposes of clause (3) of Standing Order 15 implies mens rea or appropriate state of mind, and that in the absence of this important ingredient. a person cannot be dealt with under Standing Order

15. In the instant case, the order termi nating the services of the respondent far from alleging any mens rea or deliberate violation of rules of attendance on the part of the respondent sympathizes with his heart ailment and the reasons giving for his termination of services are that it is not possible for the appellant corporation to continue work with a person who was suffering from heart ailment and was consequently unable to attend to his duties in an efficient and systematic manner. I am, therefore, of opinion that the case of the respon dent is not covered by clause (5) Sanding Order

12. Clauses (1) and (3) of Standing Order 12 empower the employer to terminate the services of even a permanent workman, provided, firstly, that he is given notice of one month or pay in lieu of notice, secondly the order terminating his services should be in writing and thirdly, the order should give reasons in support of the termination of services. All these requirements have been fulfilled in the instant case. The respondent has been given notice pay for one month, the order terminating his services was in writing. !t also states the reasons for terminating the services of the respondent. The upshot of the above discussion is that 1 set aside the decision of the learned Labour Court and would allow the appeal. Mr. Syed Hussan jafar, the learned counsel for the appellant corporation, stated that to order to show their bona fides and to dispel any doubt which might be entertained the appellant corporation would be willing to give him a Certificate of Good Conduct. The amount of back benefits deposited by the appellant corporation is ordered to be refunded to it. Appeal allowed.