1982 PLP 166 (PLC)

Date of hearing: 11thMay, 1981. These are two appeals, one by the Rice Export Corporation of Pakistan Ltd., to which I will refer as the Corporation' and the other by workman Ghulam Abbas, to whom I will refer as the workman. Both these appeals are directed against the decision of the learned Fourth Labour Court, given on 21stFebruary, 1981. By that decision the learned Labour Court has directed the re‑instatement in service of the workman but refused his prayer for grant of back benefits. The appeal by the Corporation is against the direction of the Labour Court for the re‑instatement in service of the workman while the latter's appeal is directed against the rejection of his prayer for grant of back benefits. Both these appeals are being disposed of by this Order.

2. The admitted facts of the case are that workman Ghulam Abbas was employed as a foreman by the Corporation at its rice mills at Pipri. It appears that he became unwell some time prior to 21stAugust, 1979 and took treatment from the Corporation's doctor. Apparently his condition did not improve and consequently, on 21stAugust, 1977, he submitted an application for medical leave. This application was given by the workman to his Senior Foreman, Tariq Mahmood. He thereafter left the factory without ascertaining whether his leave bad been sanctioned. As the leave application did not specify the period for which the leave was requested Senior Foreman, Tariq Mahmood made additions in the leave application to the effect that leave was being requested for two days. Leave as indicated by Tariq Mahmood was granted by the Corporation. However, the workman continued to remain absent from his duties from 21st August, 1977 upto 7th October, 1977, i.e., for a period of about one‑and‑a‑half months. On 8th October, 1977 and attended the factory [of the Corporation alongwith two medical certificates, one dated 20th August, 1977, and the other dated 6thOctober, 1977. The former certificate indicated that the workman was suffering from dysentry and sluggish liver and was accordingly advised rest from 21stAugust, 1977 to 20thSeptember, 1977. The second medical certificate recommended further rest to the workman with effect from 21stSeptember, 1977 to 7thOctober, 1977. Both these certificates have been countersigned by the Corporation's doctor but with the observation that such ‑ certificates should be discouraged in future. The Corporation's doctor has further certified that the workman was fit to resume his duties. It may be mentioned at this stage that before the workman on 8th October, 1977 had reported. for duty at the factory, a notice, dated 22nd September, 1977 was issued to him, directing him to report for duty and to submit his explanation regarding his absence within ten days. This notice, however, admittedly was not received by him. After the workman had reported for duty at the factory he was served with a regular charge‑sheet, dated 1st November, 1977, and a domestic enquiry in respect of this charge‑sheet was held. On the basis of the report of the Enquiry Officer, who found the workman guilty of remaining absent without leave for a period exceeding ten days, the latter was dismissed from service by order, dated 5th July, 1978. The workman challenged his dismissal from service before the learned Fourth Labour Court which has passed the order which is the subject‑matter of these two cross appeals.

3. I have heard Mr. Obaidur Rehman Khan, who appeared for the Corporation, and Mr. Mahmood Mubbashir, who represented the work man. Mr. Obaidur Rehman submitted that the sole point which falls for consideration in these two appeals is whether it is sufficient defence against a charge of remaining absent without leave for a period exceeding ten days under sub‑clause (e) of clause (3) of Standing Order 15 for the work man so charged to merely establish for show that he had given or left a leave application with the Management without specifying the period for which leave was sought and without caring to ascertain whether the leave applied for had been granted. The broad issue in other words is what constitutes `misconduct' for the purposes of the second part of the aforesaid, sub‑clause. Clause (3) of Standing Order 15 specifies the acts and omissions, which are to be treated as misconduct. Sub‑clause (e) of the said clause reads as follows:‑ "(e) habitual absence without leave or absence without leave for more than ten days." We are here not, concerned with the first part of sub‑clause (e) but with the latter part of the said sub‑clause. Mr. Obaidur Rehman Khan very frankly conceded that absence without leave for a period exceeding ten days would not in all cases and under every circumstance constitute misconduct for the purposes of the said sub‑clause. According to him an exception would perhaps reasonably be made where the worker was prevented from attending the establishment due to circumstances beyond his control. He submitted that the Legislature has advisedly used the expression absence without leave" without qualifying the same by such words as wilful or deliberate. He argued that wherever the Legislature in clause (3) wanted to import the conception of mens rea or state of mind it has used qualifying epithets such as habitual, wilful or dis honest, The absence of any such qualifying words, according to him, means that simple absence without leave for a period exceeding ten days would constitute `misconduct' for the purposes of the aforesaid sub -clause and the only exception that could be made is where the absence was due to circumstances beyond the control of the workman concerned, on the principle that failure to perform a duty or fulfil a legal liability on account of vie major is always excusable. In support of his contention the learned counsel relied upon the authorities reported as Guftar Shah v. Sind Labour Court No. 111 (1), Wall Muhammad v. Karachi Electric Supply Corporation (2) and Ghulam Muhammad v. General Tyre c$ Rubber Company Ltd. (3).

4. In the case of Guftar Shah a learned Single Judge of the Karachi High Court, while repelling the contention that absence simpliciter for more than ten days without a leave application did trot amount to misconduct, observed as follows:‑‑‑ "It will be seen from the enumeration of the acts and omissions treat ed as misconduct that wherever the Legislature intended that a particular state of mind should be an ingredient of misconduct it has so specifically provided and the omissions, therefore, of ingredients of a state mind in relation to certain acts or omissions which are treated as misconduct assume importance and give us an indication of the mind of the Legislature. A strike or a go‑slow is misconduct irrespective of the state of the mind of the wrong doer. So also the frequent repetition of acts, which are punishable by a fine or reprimand under clause (i) of Standing Order 15 (1974 P L C 205). It is in these circumstances that the words "absence without leave for more than 10 days" in sub‑clause (e) of clause (1979 P L C 83) of Standing Order 15 assume importance. The Legislature has not qualified the words by the expression wilful or habitual thus making this miscon duct, a misconduct without reference to the mind of the person com mitting the act or omission. A further indication of the mind of the Legislature is clearly available when we examine sub‑clause (U) of clause (1974 P L C 205) of Standing Order 15 which makes, among other things, disregard or disobedience of rules or orders which invite the punishment of reprimand or a fine while "wilful disobedience" is a misconduct under‑clause (a) of clause (3) of Standing Order

15. In the first case the state of mind of the wrong‑doer was immaterial and in the latter a positive ingredient of a misconduct. The Legis lature was, therefore, not unaware of the distinction that it was making in treating certain acts and omission as misconduct irres pective of state of mind of the wrongdoer, and in the absence of any qualifying words to absence without leave for more than 10 days made this act or omission a misconduct irrespective of the state of mind of the wrong‑doer." In Wall Muhammad's case, the Chairman of the N.

1. R. C. consider ed the judgment of the Sind High Court in Guftar Shah's case but took a different view of the matter holding that it was not possible to conceive of a misconduct or an offence without mens rea. The learned Chairman expressed himself as follows :‑ "Some of the observations in Guftar Shah's case referred to above lend support to the contention of the learned counsel that absence for ten days or more amounts to misconduct without any wilfulness on the part of the defaulting employee. It is not possible for me to conceive of a misconduct or an offence without mens rea. The word `misconduct' does convey the state of mind of a person who wilfully commits an act subversive of discipline and good conduct. It is different where a presumption of criminality arises against the Managing Body of a Corporation or the Director of a Company on account of the doctrine of vicarious liability in respect of the com pany or the Corporation. Even in those cases when the Director can show that he had no knowledge of the act complained of, it is not possible to hold him guilty. As I read the provisions of Standing Order 15 (3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it only mans that in case absence without an application for leave successively for ten days, there shall be a presumption that the absentee had committed misconduct. But that is a rebuttal presumption and it is open to the employee to show that he was prevented from reporting for duty on account of circumstances beyond his control."

5. The decision of this Tribunal in Ghulam Muhammad's case is net relevant for the purposes of the above issue but was cited in support of the contention that the charge‑sheet was sent to the address of the work man, as registered with the Corporation and the Corporation was not required to search for the address of the workman if he had shifted to another address without giving intimation of the same to the Corporation. In that case it was further held by the Tribunal that it was the responsi bility of the workman to ascertain if his application for extension of leave had been granted and that the employer cannot be blamed if he had made efforts to inform the workman on the latter's last known address to the employer about the rejection of his application, but such rejection did not come to the notice of workman as he had shifted to another address.

6. I am inclined to agree with the view of Mr. Obaidur Rehman Khan that while the phrase "absence without leave, as sued in sub- clause (e) of clause (3) of Standing Order 15, restricted cases of wilful even negligent absence without leave, since the phrase is not qualified by any such epithets, at the very best cases where the absence is due t circumstances beyond the control of the workman do not fall within the purview of the aforesaid sub‑clause. No doubt as pointed out by the learned Judge of the Karachi High Court in the case of Guftar Shah, the phrase "absence without leave" is not qualified by any such epithet as wilful or deliberate, `but with very great respect to the learned Judge for whom I entertain the highest esteem and respect, I find myself unable to agree with the broad proposition enunciated by him that "absence with leave for more than 10 days" simpliciter constitutes misconduct without consideration of other circumstances which may be relevant and irrespec tive of the state of mind of the worker. It may be humbly pointed out that the various punishments specified in clause (2) of Standing Order 15 can only be awarded for an act of "misconduct". The acts and omissions which constitute misconduct have been specified in clause (3). We have, therefore, to see what is connoted by the term "misconduct". Since the Standing Orders do not define this term but merely state the acts and omissions which are to be treated as misconduct, perhaps it would be of assistance to refer to the dictionary meaning of misconduct' while con sidering the nature of the acts and omissions which constitute miscon duct. In Ballentine's Law Dictionary, Third Edition, "misconduct" ha been defined as "improper conduct,; a transgression of some established and definite rule of action, where no discretion is left, except what neces sity may demand ; a violation of definite rule of action, where no dis cretion is left, except what necessity may demand ; a violation of definite law a forbidden act." The exception in the definition in favour of what necessity may demand is important and shows that mere infraction of an established rule of action may not always constitute misconduct. If, therefore, a person is prevented by circumstances beyond his control from attending to his duties in an establishment he cannot be said to be guilty of misconduct though his absence may be without leave for a period exceeding ten days. To cite an example, if a workman while proceeding to the place of his duties meets with a serious accident and remain in an unconscious state in hospital for a period of one month or more, can it be said that he has committed misconduct by remaining absent without leave for more than ten days. Without any express words to that effect in the law, I find myself wholly unable to take the view that such should be construed as the intention of the Legislature.

7. There are a number of authorities in support of the view that I have taken. In the case of Federation of Pakistan v. Hasham Ali Shah (P L D 1954 Lah. 769), a Division Bench of the Lahore High Court examined the connotation of the word "misdonduct" as used in the Risk Note issued by the Railway Act. In that case Rehman, J., after examining a number of English Authorities on the subject, observed as follows :‑ "Misconduct" may be intentional conduct inasmuch as the act or omission may have the feature of voluntariness included in it but it should still be distinguishable from intentional or wilful miscon duct. To my mind, 'misconduct' includes any highly improper or wrong conduct involving something more than mere negligence and culpable neglect of an official in regard to his office' in the words of the Oxford Dictionary, would be one form of it. Misconduct, on the one side, has to be something more than negligence simplici-fixing and on the other less than wilful misconduct', at least while fixing the lower boundary of the scope of its connotation."

8. The question whether the fact that the Junior Operator was found asleep while on duty in the Conversion Plant of the Pak‑American Fertili zer Co., in the Third Shift, constituted 'misconduct' for the purposes of (Standing Orders) Ordinance, 1960, in which enactment the list of acts and omissions which constitute misconduct, is substantially the same as given in Standing Order 15 of the West Pakistan Industrial and Commer cial Employment (Standing Orders) Ordinance, 1968, was examined by a Division Bench of the Lahore Bench of the Erstwhile West Pakistan High Court in the case of Pakistan American Fertilizers Ltd. v. Industrial Court (P L D 1965 Lah. 822), Holding that such an act did not constitute misconduct for the pur poses of the Standing Orders, S. A. Mahmood, J. speaking for the Divi sion Bench, stated as follows :‑ "To constitute misconduct it is necessary that the act should be a deliberate and intentional act (so that the mind of person goes with of insubordination or disobedience of a lawful order of a superior. Every workman, especially one who has the working of the modern complicated machinery put on night duty knows to sleep, it may be a deliberate act or an unintentional act. It would be a deliberate act if he goes to sleep intentionally and purposely, but an involuntary act, if sleep engulfs him (as it comes by 'habit at night), as it may, in spite of his intention to the contrary. Since this possibility is there, to hold that it is a deliberate act, there should be some evidence which is lacking in this case."

9. Finally, I would refer to the decision of their Lordships of the Sup reme Court in the case of Province of East Pakistan v. Muhammad Sajjad Ali (1). In that case their Lordships of the Supreme Court were called upon to consider what constitutes misconduct for the purposes of the Public Conduct (Scrutiny) Rules. It was held that the expression "misconduct", in the absence of any definition in the said Rules had teen used in the wider sense of improper conduct. A conduct cannot be considered to be improper unless there is an element of mens tea or appropriate state of mind associated with it, I am therefore, of the view that for the pur poses of sub‑clause (e) of clause (3) of Standing Order 15, mere absence without leave for a period exceeding ten days simpliciter, without mens tea or appropriate state of mind, cannot be considered to be misconduct entailing the drastic punishments provided in clause (3) of the said Order, which include dismissal.

10. It remains to be considered what were the circumstances in which, in the present case, the workman, Ghulam Abbas, remained absent from his duties for a period of about one and half months and whether those circumstances t4e the absence of the workman out of the ambit of misconduct as spelt out in the Standing Orders. It is not disputed that the workman had submitted an application for leave on medical grounds though the application did not specify the period for which the leave was requested. In other words the leave was for the period, which could be properly advised by a medical practitioner or authorised medical officer. It is further admitted position that the workman was advised complete rest by Dr. Wajid Ali Shah and that the certificates issued by him in respect of the workman have been countersigned by the Corpora tion's doctor. The inability on the part of the workman to perform his duties, during the entire period of his absence, has thus not only been certified by a private medical practitioner but his opinion appears to have been endorsed by the Corporation's doctor though at least with the obser vation that in future such sort of certificates should be discouraged.

11. Mr. Obaidur Rehman Khan, however, contended that though the workman may not have been able to perform his duties on account of his illness this did not absolve him from the responsibility of taxing proper leave or attending the Corporation's Mill at Pipri at least to ascertain what was the fate of his leave application. This contention was sought to be founded on the fact that Dr. Wajiad Ali had merely certified as to the inability of the workman to perform his duties but had admitted in his evidence in the Labor Court that the workman was able to walk. Mr. Obaidur Rehman Khan, accordingly, contended that it was, thus, not only possible for the workman but it was his responsibility to attend the Mill. I am, however, of the view that mere failure on the part of the workman to attend the Mill for the purposes of ascertaining what was the fate of his leave application or submitting a more appropriate leave application does not convert his absence from his duties, which in fact he could not perform on account of his illness, into misconduct punishable under Standing Order

15. It is true that an employer is not required to keep the seat of a workman vacant for an indefinite period so that he could return to it whenever he chooses to do so but in order that a dis missal order should be sustained by the Labour Courts the act on the basis of which the dismissal order is issued must squarely amount to miscon duct for the purposes of Standing Order

15. It may be pointed out that the Legislature has laid down two modes of termination of services one being termination of services simpliciter under clauses (1) and (2) of Standing Order 12 and the other by way of punishment of dismissal under Standing Order

15. If an employer considers that he is unable to wait indefinitely for a workman, who may be remaining absent on account of circumstances beyond his control, he may still, in appropriate circumstances, be entitled to terminate the services of the worker under clauses (1) and (2) of Stand ing Order

12. However, if he wishes to dismiss the worker he has to establish that the worker is guilty of misconduct. It may be pointed out that apart from the stigma 'which attaches to dismissal, a dismissed workman looses important benefits, including the right to gratuity which otherwise may be admissible to him.

12. Mr. Obaidur Rehman Khan, in support of his contention that the workman was guilty of misconduct, also sought to rely on the notice, dated 22nd September, 1977, directing the workman to report for duties within ten days, but the admitted position is that the notice was not served upon the workman as on account of his illness he was not residing at his house.

13. For the reasons discussed by me above I am of the view that the act of the workman, Ghulam Abbas, in remaining absent from his duties with effect from 22nd June, 1977, upto 7th October, 1977, does not constitute misconduct and hence the order of his dismissal cannot be sustained. However, this does not mean that the workman would be entitled as of fight to back benefits. Subsection (5) of section 25‑A, I.R.O., lays down that while adjudicating and determining a grievance the Labour Court can pass such order as tray be just and proper in the circumstances of the case. In the instant case, the work.. man admittedly had submitted an application but without specifying the period for which the leave was sought. Furthermore, he neither waited for the sanction of his leave application nor did he subsequently up till 8th October, 1977 cared to ascertain whether leave has been granted to him, and if so, for what period, despite the fact that according to his own doctor he was in a position to walk. Mr. Mahmood Mubbashir, the learned Representative for the workman, sought to contend that the workman's application for leave was for an indefinite period and that this leave in fact was granted by the Management. This position does not appear to be correct. Before the leave application was put up to the Management the Senior Foreman, Tariq Mahmood, had made alterations therein to the effect that leave was required for two ‑days. It was this altered application that was sanctioned by the Management. In other words the leave sanctioned by the Management was only for two days. This is clear not only from the fact that on the. workman's leave application itself the adjustment for leave is made for two days only but further, on 22nd September, 1977, a notice was sent to the workman intimating him that be was remaining absent from duty without leave. A workman cannot be permitted with impunity to remain absent from his duties, without proper leave, forty an indefinite period. Since the workman was clearly negligent in pure, suing his application for leave and ascertaining what was its fate. ii would agree with the view of the learned Labour Court, though for totally different reasons, that he is not entitled to any back benefits. In the result I would dismiss both the appeals, Appeal dismissed.