2008 PLP 359 (PLC)

HAFIZ TARIQ NASIM, J.

This labour appeal is filed against order, dated 25-2-2008 passed by the learned Punjab Labour Court No.VII, Gujranwala.

2. Facts relating to this appeal are that respondent No.1 joined the appellant's organization in June, 2000 as a worker who filed a claim before the Authority under Payment of Wages Act, for the payment of over time and bonus and according to respondent Nos. 1's contentions that he was forced to withdraw the claim otherwise he was threatened to be terminated. Respondent No. 1 refused to withdraw his claim resulting into issuance of charge-sheet and then termination order dated 30-1-2004.

3. During the course of proceedings before the learned Labour Court an application for amendment in the petition was filed by respondent No.1 on 20-7-2005 for impleading of Map Rice Mills (i.e. the present appellant) as party, the said application was accepted on 20-4-2006 and the case was fixed for reply on behalf of the Map Rice Mills. On 19-7-2006 the learned counsel who was representing the present respondent No.2 before the learned Labour Court submitted that he is representing the Map Rice Mills and relies on the reply already submitted.

4. On 28-8-2006 no one appeared before the learned Labour Court on behalf of the respondents, so the right to produce written reply was closed and the case was fixed for evidence of the present respondents.

5. On 27-2-2007 respondent No.1 submitted an affidavit treating it as his evidence, however, the learned Labour Court directed the respondents to submit written reply on 9-4-2007 despite closing of their right to produce written reply and that was ordered in the interest of justice. The case was adjourned to 9-4-2007 no reply was filed on behalf of the present appellant then case was adjourned to 21-4-2007, 30-5-2007, 10-7-2005, 12-9-2007, 22-9-2007 and 5-11-2007.

6. After affording seven opportunities to the present appellant, the learned Labour Court had no other option except to close the evidence and case was fixed for arguments and finally the petition was accepted, respondent No.1 was reinstated into service with all back-benefits. Learned counsel for the appellant submits that the learned Presiding Officer has decided the disputed questions of fact without recording the evidence, culminating into the impugned order; a nullity in the eye of law. On the other hand, the learned counsel for respondent No.1 supports the impugned judgment, however, offered that if the appellant implements the impugned judgment of the learned Labour Court he is ready to waive his right of 50% of arrears despite that his petition was accepted with all back-benefits.

7. Practically paras.11 to 14 are important to resolve the present controversy which are reproduced as follows:-- "The petitioner remained absent seven days which are 3-1-2004, 5-1-2004, 6-1-2004, 7-1-2004, 8-1-2004, 9-1-2004 and 10-1-2004. These are seven days therefore, Order 15(3)(e) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable on the fact of the case. Perusal of dismissal order has transpired that inquiry was conducted on 15-1-2004 without procuring the reply of present petitioner. There is nothing on the record to establish that present petitioner confessed his guilt before Inquiry Officer. The inquiry is absolutely in violation of Order 15(3)(e) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 because the absence of the present petitioner is only to the extent of seven days. The respondent was not competent to conduct an inquiry on this fact. The admission if any has no legal effect as inquiry is not regulated by the law dilated above. It goes without saying that any inquiry report is not submitted on the record by the respondent side. Ironical enough 10-1-2004 is included as a day on which the present petitioner was absent and this day is being included in the show-cause notice. Any evidence is not on the record to show that the show-cause notice was served to the petitioner. In this respect reliance is placed upon Hafeez Shah v. United Bank Limited 2001 PLC

489. There is a word "Habitual" in Standing Order 15(3)(e) of West Pakistan Industrial Commercial Employment (Standing Orders) Ordinance, 1968. Where the Legislature intends that the particular state of mind should be an ingredient of misconduct. It is so specifically provided and the omissions, therefore, of ingredient of state of mind in relation to certain act or omissions which are treated as misconduct assume importance should give us an indication of the mind of the Legislature. The Legislature has qualified the words by the expression "habitual" thus, making this misconduct with relation to state of mind to person committing the act or omission. There must be some mens rea or negative state of mind to establish the fact that the absence is outcome of mala fide and the same was habitual. Reference is made to 1982 PLC 128, 1986 PLC 822, (sic) PLC 283, 2000 PLC 579, 1997 PLC 261."

8. After going through the impugned judgment and after hearing both the counsel at length and particularly keeping in view the offer of respondent No.1 for waiving of his back-benefits claim to the extent of 50%, I am not inclined to interfere in the impugned controversy. Resultantly, the appeal is dismissed. Appellant shall implement the judgment of the learned Labour Court in letter and spirit, however, respondent No.1, shall be entitled for the back-benefits to the extent of 50%. H.B.T./M-285/L Appeal dismissed.