2004 PLP 87 (PLC)

3. In Reply statement the Appellants' Establishment denied the relationship of Employer and Employee between the parties. It was also denied that the respondent was a workman. According to the appellants' version he was a temporary Chowkidar and while acting in that capacity he committed 4 shameful act of sodomy with a young boy on 4‑1‑1994 and thereafter he absconded from his duty, though he submitted no leave application. When called upon to explain his conduct, instead of giving explanation he filed a grievance petition with the result stated above.

4. On the two Issues framed by the learned Labour Court namely whether the respondent was involved in an un‑natural offence and whether he was absent from his duty without any intimation the Court's findings were in the affirmative and further it was held by the Labour Court that there existed relationship of employer and employee between the parties. As a result of these findings the grievance petition was accepted and he was given the relief of reinstatement as well as payment of back‑benefits.

5. Mi. Faisal Ghani who appeared on behalf of the appellants/ Establishment had strongly attacked the Lower Court's order as illegal as it had emanated from the grievance petition which was not maintainable. He contended that it was the plea of the appellants' Establishment that there existed no relationship of employer and employee between the Establishment and the respondent. However it is an admitted fact that respondent was employed as temporary Chowkidar in the appellants' Establishment and as such the contention that there was no relationship of employer and employee between the parties was without any force.

6. Mr. Faisal Ghani's main objection was that appellant had a small factory with only 8 (eight) persons employed in it and as such it was not covered by Factories Act 1934 nor West Pakistan Industrial and Commercial, Employment (Standing Orders) Ordinance 1968 was applicable to it. In support of his argument he has referred to two documents namely the letter dated 21‑3‑1994 of Assistant Director Labour (Inspection) Central Division, Karachi Annexure R/1 (Page 59 of R&P) and Registration Certificate in Form C under West Pakistan Shop and Establishment Ordinance 1969 Annexure‑R/2 (Page‑61). It is clear from both those documents whose authenticity stands unchallenged that appellants' Establishment had only employees working in it. This being so the learned counsel was right in arguing that neither Factories Act nor Standing Orders Ordinance were applicable to the appellants' Establishment. Therefore the grievance petition filed by respondent was not maintainable. I am sorry to say that throughout the judgment of the Labour, Court no reference has been made to both these documents. In view of the above plea taken by the appellants' Advocate necessary Issues were also not framed. Instead the Learned Labour Court had straight away considered the question whether the respondent had committed sodomy and whether he was absent from duty without any intimation perhaps on the assumption that grievance petition under section 25‑A I.R.O. had been properly filed. The grievance of the appellant's Advocate was that though respondent was working as temporary Chowkidar his services were not terminated but he rather absconded from his duties and went away for good. In this connection my attention was dawn to the reply given by the appellants Establishment to the grievance notice sent by the respondent by Post (Exh. B, page 37). The relevant portion of the reply is reproduced as under:‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ The fact is that you were in temporary service and on 4‑1‑1994 you were involved in a most shameful incident with a small boy in our factory. After this shameful act you absconded from the factory. You did not give us any application for your leave but in fact ran away from the factory. During your unauthorized absence we decided to employ another Chowkidar. Under the circumstances you are advised to report to the factory and face the charges that have been made against you."

7. After the above communication was sent to the respondent nothing was heard from him. Neither he turned up to report for duty nor sought his reinstatement and back benefits that were awarded in his favour by the Lower Court's judgment. Even after filing of appeal against the decision of the Lower Court several dates were given to serve notice directly on the respondent but without any result. This also shows that he kept absconding and was not available at the given address. The reason for his abscontion was obviously his avoidance of legal action likely to be taken against him for his criminal offence of sodomy. Though the learned Lower Court has given its own reasons for holding that such act was not proved against the respondent yet there was nor plausible explanation why he was avoiding service of notice so that ultimately substituted service through Newspaper was ordered against him. No doubt it was for the Court to take a decision after hearing the relevant evidence whether he had committed the crime of sodomy or not but it was enough for this Court that he continued to remain absent from duty though in reply to his notice the appellant's Establishment had required him to come and join the duty and face the allegations first and then seek the benefit of reinstatement in service and back‑benefits ordered in his favour by the Lower Court but he did not bother to get any such benefits from the concerned Court. Instead he remained. absconding.

8. After considering the material on record and hearing the arguments of the appellants' advocate I am unable to endorse the decision of the learned Lower Court which is therefore set aside. H.B.T./83/K.L.T. Appeal allowed.