1984 PLP 1471 (PLC)

Mirza M. Kazim for Appellant. Itrat Puri for Respondent. Date of hearing: 14th November, 1983. This order disposes of the two Appeals Nos. KAR-103/83 and KAR 141/83 arising out of a common order, dated 20th March, 1983 passed by the 1st Labour Court, Karachi, ordering the reinstatement of the workman, Muhammad Sadiq with a direction to hold fresh enquiry on the same charge-sheet and that the award of the back benefits shall depend on the result of the enquiry. The learned Labour Court has further directed that the enquiry shall be initiated within one month of the passing of the impugned order and if it is not so done, it will be assumed that the establishment had waived the right to hold fresh enquiry and in that case the workman, Muhammad Sadiq shall be entitled to full back benefits.

2. The facts leading up to the appeals briefly stated are that Muhammad Sadiq was a permanent workman of the establishment herein, Messrs Hussain Industries Ltd. He was charge-sheeted for misconduct having remained absent on seven different dated, viz. 7th September, 1980, 15th September, 1980, 26th September, 1980, 2nd October, 1980, 6th October, 1980, 9th October, 1980 and 11th October, 1980, without leave or permission. Domestic enquiry was held against him and he was found guilty of the charge vide charge report, dated 15th November, 1980. On the basis of enquiry report he was served with a second show-cause notice and thereafter dismissed from service vide dismissal order, dated 22nd November, 1980, his dismissal was to take affect from 23rd November, 1980. He served a grievance notice on the establishment, dated 10th December, 1980 and thereafter filed a grievance application on 27th January, 1981. The learned Labour Court finding on the basis of the evidence adduced before it that an enquiry should have been held against the workman for habitual absence without leave as well ordered his re instatement with a direction of holding of a fresh enquiry as stated above. Aggrieved by the impugned order, the workman has come in appeal against the order of fresh enquiry whereas the establishment has come in appeal against the order of reinstatement.

3. The workman, Muhammad Sadiq examined himself as well as Abdul Marian whereas the establishment has examined S. M. Haidri son of S. Zahir Hussain Zaidi, Abdul Razzak Awan, Manager Administration and Kaleemur Rasheed the Enquiry Officer in support of their respective contentions. I have perused the evidence available on the record and have also heard the learned counsel for the parties, Mr. M. M. Kazim for the workman Muhammad Sadiq and Mr. Itrat Puri for the establishment. It has been mainly contended on behalf of the workman that the charge levelled against him was simplicitor absence without leave for 7 days after intervals which would not constitute misconduct within the meaning of Standing Order 15 (3) (e) of the Standing Orders Ordinance, 1969, and that the Enquiry Officer also conducted the enquiry on a charge to the effect and that charge cannot be legally substituted by any other charge constituting habitual absence without leave or permission as that would be a distinct charge as would be clear from the Standing Order 15(3) (e) of the Standing Orders Ordinance, 1968. It has also been contended on his behalf that be is an active trade unionist and was elected Vice-President of the Hussain Textile Mills General Labour Union and since the application for registra tion was pending before the Registrar, Trade Unions and that he had also intimated his employer the names of the office-bearers before his order of dismissal from service was issued, he enjoyed protection under section 8-A of the I. R. O., 1969. It has been mainly contended on behalf of the establishment that the workman Muhammad Sadiq had violated the pro visions of section 25-A, I. R. O:, 1969, inasmuch as he had failed to bring his grievance to the notice of the employer by serving a grievance notice on it.

4. The points, therefore, that would arise for consideration in these two appeals mainly are; firstly, as to whether on the basis of the enquiry report the dismissal order could be legally sustained; secondly, as to whether the workman Muhammad Sadiq enjoyed protection under section 8-A of the I. R. 0., 1969 ; and thirdly, as to whether he has served a grievance notice on his employer as provided in section 25-A, I. R. 0., 1969.

5. So far the first point is concerned the charge-sheet on the face of it would disclose that the workman was charged for absence from duty for 7 days at intervals and that would not constitute a misconduct as the requirement of Standing Order 15(3)(e) for such absence is for more than 10 days. The charge-sheet would clearly disclose that he was not charge -sheeted for habitual absence without leave which is a distinct charge from the one for absence without leave for more than 10 days. What I further find that the pleadings of the parties in that respect are also clear to the effect that the charge against the workman was only for 7 days absence without leave simplicitor. What I find that for the first time in the cross- examination of workman, Muhammad Sadiq, he was confronted with previous charge-sheet and warning administered to him by the establish ment, by their learned counsel and he denied having received the same. It was from this stage that as it appears to me a new case was set up on behalf of the establishment obviously for the reason that the case of the actual charge of absence from duty for 7 days on the basis of which the domestic enquiry was held and the enquiry report was submitted was found to be too weak to be sustained. These previous warnings and the charge-sheets since- denied by the workman were introduced in evidence through the Manager Administration of the establishment, Mr. Abdul Razzaq Awan who has deposed that apart from the charge mentioned in the charge- sheet, Annexure A-1 he also considered the habitual absence of the workman while deciding to dismiss him from service: He has further deposed that the documents which were shown to the applicant (workman) during his cross-examination were not produced before the Enquiry Officer as it was not felt necessary to produce such document before the Enquiry Officer. According to him his personal file was with the Enquiry Officer and it contained all the papers. According to him the enquiry was conducted in respect of the allegations of 7 days' absence and it was also ascertained if the applicant was habitual absentee. According to him further since the charge of habitual absence is also covered by the charge-sheet hence no separate charge-sheet was issued against the applicant (workman) in res pect of the habitual absence. He is belied in all that respect not only by the enquiry report, dated 15th November, 1980 but also by the Enquiry Officer Mr. Kaleemur Rasheed who has deposed that he had perused the file of the applicant (workman) and had found the previous charge-sheet and warnings had been issued against him for absence. He has further deposed that it is correct that no such allegation appears in the charge -sheet that previous charge-sheet and warnings have been given to the applicant (workman) for absence. According to him further he had given finding strictly in accordance with the charge-sheet that the applicant was found guilty for absenting himself for 7 days. According to him further he had not given any finding that he was a habitual absentee. It would, therefore, be very clear not only from the enquiry report itself but from the evidence of the enquiry officer that the charge-sheet itself was for absence for 7 days simplicitor and not for habitual absence. It would also be clear that the Enquiry Officer conducted the domestic enquiry on that charge for absence of 7 days and not for the habitual absence, obviously for the reasons that the applicant (workman) was charged only for 7 days' absence, which does not constitute misconduct within the meaning of Standing Order 15(3) (e) of the Standing Orders Ordinance, 1968. It would, therefore, be very clear that the establishment finding it's case weak on the charge which was actually the subject-matter of the charge-sheet and the domestic enquiry as well as the enquiry report, attempted to subs titute it with distinct charge which cannot be permitted under the law. The learned Labour Court has directed fresh enquiry on the same charge-sheet, A but on the fact of it the charge-sheet itself discloses only a charge of absence without leave only for 7 days. No such fresh enquiry could be ordered since 7 days' absence without leave did not constitute misconduct, and the workman was entitled to reinstatement without order of any fresh enquiry. Accordingly in my view it is established that the dismissal order could not be legally sustained on the basis of the charge-sheet, the domes tic enquiry as well as the enquiry report and such an order of dismissal was obviously illegal.

6. As regards the second point as to the protection provided under section 8-A, I. R. O., 1969, to the workman Muhammad Sadiq, I find ample evidence on the record that he was an active trade unionist and had contested elections of the union soon before the order of dismissal was passed against him and his application for registration before the Registrar, Trade Unions was pending on 22nd November, 1980, as deposed by Mr. Mir Muhammad Baloch, the Assistant Director, Labour (Trade Union) East Division Karachi, vide his deposition at Exh. Tr. 1, in the appeal file. Section 8-A,

1. R. O., 1969 prohibits, save with the permission of the Registrar, the transfer, discharge, dismissal or award of other punishment to an officer of a trade union or workman during the pendency of an appli cation for registration of the trade union with the Registrar, provided that the union has notified the names of the office-bearers of the trade union to the employer in writing. Apart from the evidence of Mr. Mir Muhammad Baloch, the Assistant Director, Labour (Trade Union) East Division, it is also an admitted position that the application for registration of trade union was pending with the Registrar, Trade Unions with effect from 22nd November, 1980. The workman Muhammad Sadiq has deposed that he bad notified the names of the officers to the employer in writing on the morning of 22nd November, 1980 by an urgent telegram to the establish ment (employer) and that it was received by them on the same date. Though the same has been denied by the establishment with the contention that it was received by them on 23rd November, 1980 after the dismissal order of workman, Muhammad Sadiq had been issued. It is, however, an admitted position that the order of dismissal was to take effect from 23rd November, 1980 as disclosed by the order itself. It is also admitted that the application for registration was also pending on 23rd November, 1980 and that the telegram notifying the names of the office-bearers including that of the appellant Muhammad Sadiq as Vice-President was also received on 23rd November, 1980 as admitted by the establishment. The telegram Exh. I-F has been produced and bears date of its despatch as 22nd November, 1980. Being an urgent telegram addressed from Karachi to Karachi, obviously there can be no reason as to why it should not reach its destination on 22nd November, 1980. The presumption under sec tion 114 (f) of the Evidence Act in the situation would arise that it was received on 29th November, 1980 before the order of dismissal of the workman came into effect on 23rd November, 1980. This presumption is rebuttable but no attempt has been made on behalf of the establishment to show that the telegram notifying the names of the office-bearers was re ceived after the dismissal of the workman came into effect, more so when the entire record and the evidence in that respect was with the establish ment. Accordingly in my view, it has been established by sufficient and satisfactory evidence that the workman Muhammad Sadiq had protection under section 8-A, I. R. O., 1969, and he could not be dismissed from service in the circumstances stated above without permission of the Registrar of the Trade Unions.

7. I would next consider as to whether the grievance notice under section 25-A, I. R. O., 1969 was duly served on the establishment or not. The copy of the notice, dated 10th December, 1980 has been produced at Exh. 1-H and so also the postal acknowledgement due receipt, dated 13th December, 1980 vide Exh. 1-H/1. It has been contended by the establishment that the acknowledgement due receipt is manipulated. Mr. Abdul Razzaq Awan the Manager Administration was confronted with the A/D receipt slip, dated 13th December, 1980, Exh. 1-H/l, and he had deposed that it does not bear the seal of the establishment. He is belied in that respect by the Enquiry Officer, Kalimur Rasheed who has deposed that the A/D receipt Exh. 1-H/l, dated 13th December, 1980, bears the seal of Hussain Textile Mills, the establishment. Mr. Awan being the Manager Administration should not have disclaimed even the seal of his own mills which is admittedly to have been of the mills as deposed by Kalimur Rasheed, the Enquiry Officer, who is also serving in the same mills. I myself have seen the A/D receipt and on my scrutiny it not only bears the seal of the mills but also the date as 13th December, 1980 with an initial obviously of an employee of the mills in token of the envelope containing the notice having been received on behalf of the mills. The receipt bears the postal seals also on both sides, one of them bearing the date as 13th December, 1980. On a careful scru tiny, it does not look to have been manipulated as has been contended on behalf -of the establishment. The copy of the grievance notice bears the date as 10th December, 1980 and it must have been despatched and received as clearly disclosed not only by the postal seals but also for the seal of the establishment, i. e. Hussain Industries Ltd. The burden of proof would obviously lie on the workman to prove service of the notice under section 25-A, I. R. O., 1969, but in such a situation the presumption would arise under section 114 (f) of the Evidence Act that grievance notice was served on the establishment. The presumption is stronger in the case of registered letter, and is not rebutted, but is further strengthened, by the fact, that a receipt for the letter is produced signed on behalf of the addressee. In the circumstances, the burden is shifted on the establishment to prove that the letter was not properly addressed to them and was never tendered to them. No attempt has teen made on behalf of the establish ment in that respect. I would, therefore, find that grievance notice was duly served on the establishment as contended on behalf of the workman, Muhammad Sadiq by his learned counsel.

8. The result is that the order of fresh enquiry passed by the learned Labour Court is vacated and that the workman Muhammad Sadiq stands reinstated in-'service with full back benefits. His Appeal No. KAR-103/83 is allowed accordingly. Consequently, the Appeal No. KAR-141/83 filed by the establishment is dismissed. A. E. Order accordingly.