1989 PLP 184 (PLC)

Ali Amjad for Appellant. Nemo for Respondent. Date of hearing: 14th February, 1988. This is an appeal filed by the appellant against an impugned order, dated 25‑1‑1986, passed by the Sind Labour Court No. II at Karachi, who had dismissed the grievance petition of the appellant under section 25‑A, I.R.O. 1969.

2. Briefly stated the facts of the case are that the appellant claimed to be a permanent workman in the respondent mills and that he was elected as Joint Secretary of a newly formed Sanaullah Woollen Mills Employees Union, so, he alongwith other office‑bearers was subjected to harassment, pressurised action and intimidation by the mills with a view to disassociate himself from the said union's activities and on his refusal to do so, he was verbally prevented from performing his duties with effect from 20‑3‑1984. It was also claimed by him that on 19‑5‑1984 he was issued a charge‑sheet alongwith a suspension order on the allegation that he remained absent unauthorized, for forty‑two days without t sanction between April 1983 to March 1984 amounting t o habitual absenteeism, and misconduct. The appellant further claimed that although he had submitted a i satisfactory reply to the charge‑sheet but, an illegal, unfair and partial enquiry was; conducted against him resulting in his dismissal from service vide letter, dated 16‑9‑1984 and being aggrieved with this, he served his grievance notice followed by the present grievance petition under section 25‑A. I.R.O. 1969.

3. The respondent mills resisted the petition on the ground that the appellant was charge‑sheeted for being habitual absentee, but he refused to take; the same, so, with effect from 20‑3‑1984 he was suspended for a period of four days and on the same date he personally appeared before the authorities and apologized for not accepting the charge‑sheet or the suspension letter. It was also claimed that previously on 22‑9‑1983 he was also charge‑sheeted for remaining absent for more than 10 days, but it was not proceeded with The respondent mills further claimed that a proper and impartial enquiry seas conducted against the appellant holding him guilty of the habitual absenteeism which was neither mala fide nor illegal or by way of victimization, therefore he was not entitled to maintain his grievance petition which was liable to be dismissed.

4. Both the parties filed their respective affidavits in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the; impugned order, hence, the present appeal.

5. I have heard Mr. Ali Amjad, the learned Advocate for the appellant. Nemo on behalf of the respondent mills was present. However, I have also carefully perused the record and proceedings of the case. At the very outset, I would hold that the learned Labour Court has not correctly appreciated the evidence, documents and other circumstances brought on its record, while passing the impugned order. Mr. Ali Amjad, the learned Advocate for the appellant has6 very convincingly argued that it is an admitted position, that the appellant was paid in cash an amount equal to 33 days' wages for the year commencing from 1‑4‑1983 to 31‑3‑1984 so, a legal presumption has to I be raised that 33 days ' absence of the appellant during the period had been regularised and paid for bay the respondent mills. It was also submitted by Mr. Ali Amjad, the learned Advocate that the learned Labour Court has erred in failing to notice that there, could not be a payment for leave unavailed of, so that, if, the appellant was found to be entitled to Annual Leave and other leaves and also was paid for by the respondent mills, it would mean, without any doubt, that there was no unauthorized absence by the appellant. It was also contended that under law, the appellant could not be proceeded against on alleged m misconduct of September 1983 in March 1984 when, admittedly this alleged absence was condoned. As regards the allegation of unauthorised absence for remaining 9 days it wasp t contended that even this absence could not be proved by an independent and cogent evidence and moreover it could not be a misconduct under the relevant law. I see much force in these contentions of Mr. /Ali Amjad, the learned Advocate for the appellant. In support of his contentions he has also relied upon a case reported in P L C 1985 at page 7014 wherein it was held by the high Count that the habitual absence is proved. In view of these admitted facts, I would hold that the dismissal of the appellant from service on the ground of habitual absence which could not be proved, was not correct, hence, I would set aside the same.

6. For the reasons discussed by me above I would set aside the impugned order and would allow the present appeal. The appellant is directed to be reinstated in service with fifty per cent (50%) back benefits, forthwith. A.E./1271/Lb.S A.E./1271/L/b. Appeal allowed.