1976 PLP 7 (PLC)

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. (VI of 1968)

S. O. 15(3)(a)

Misconduct

Worker remaining absent for two days-His presence however marked in register due to his card being deposited in Khata-No evidence, however, available attributing deposit of card to him-Mere absence for two days, held, did not amount to misconduct-Competent authority failing to afford opportunity of showing cause by issuing 2nd show-cause notice to explain against findings of inquiry officer

Competent authority further without applying his own mind and simply agreeing with inquiry finding passing dismissal order-Dismissal order, in circum stances, held, unsustainable and re-instatement with full back benefits awarded. Muhammad Siddique appellant has preferred this appeal against the order dated 8-12-1973, passed by Junior Labour Court, Gujrat/Jhelum District, whereby his application under section 25-A of the I. R. O., 1969 was dismissed. The brief facts of the case are that the appellant joined the respondent Mills as a Fitter on 21-10-1971. On 20-7-1973 he was served with a show- cause notice and on 28-7-1973, with a charge-sheet containing an allegation that on 14-7-1973, and 16-7-1973 he was absent from duty, but in order to get wages for these 2 days, he deposited his Attendance Card in the Khata so that his presence may be marked on it. Then an enquiry was held against the appellant and ultimately he was dismissed from service on 21-9-1973. He made an application to the Junior Labour Court alleging that his dismissal is illegal. The respondent resisted the petition. It appears that no reply statement was obtained from the respondent. The Junior Labour Court recorded the evidence of both the parties and by its order now under appeal dismissed the petition as mentioned above. The learned representative of the petitioner contended that the finding of the enquiry officer is perverse as there is absolutely no evidence to support it. He has further stated that no 2nd show-cause notice was given to the appellant and the order of dismissal from service is unsustainable. He has further argued that since the appellant had not actually received the wages for 14-7-173 and 16-7-1973, therefore, the act attributed to him does not fall within the purview of S. O. 15(3) (b) and (h). It may be mentioned that mere absence for 2 days does not amount the misconduct because under S. O. 15(3) (c) only habitual absence without leave or absence without leave for more than 10 days amounts to misconduct. I have gone through the statements of the witnesses recorded in the enquiry proceedings. Ghulam Muhammad P. W. stated that he received a report that the appellant was absent on 14-7-1973 and 16-7-1973 but his presence was marked on the time card and attendance register. He enquired from the time-keeper about it, who replied that the card of the appellant had been deposited in the Khata on 14-7-1973 and 16-7-1973, therefore, he marked his presence. The next and the last witness of the prosecution in the enquiry proceedings is Hafiz Manzoor Ahmad who has stated that the appellant was absent on 14-7-1973 and 16-7-1973. He further stated that he did not know how his presence was marked on the time card and attendance register. This evidence does not connect the appellant with the fact attributed to him. The file also shows that after the enquiry no 2nd show-cause notice was given to the appellant to afford him an opportunity of showing cause against the finding of the enquiry officer. 1 also find that on receipt of the enquiry report, the employer did not apply his own mind to the evidence recorded in the enquiry proceedings and the findings of the enquiry officer. He simply agreed with the findings without giving his own reasons and ordered the dismissal of the petitioner-appellant and for these reasons the order of dismissal of the petitioner is unsustainable. For the foregoing reasons I accept this appeal, set aside the order of the Junior Labour Court and direct the management to re-instate the petitioner with full back benefits within a week from today.