1989 PLP 429 (PLC)

2. On the other hand, the respondent has given the impression that, with his past background, of absences of which no disciplinary action was taken, still he did not disclose that he was detained in the Jail on the charge of attempt to murder, which according to Mr. Muhammad Ibrahim, there were cross‑cases of family disputes.

3. What the Court has found, from the version, it is described, there was domestic enquiry but in his absence despite the letters sent, which according to the respondent itself in clause 7 of para. 2, that, "some one must have received and taken to the Jail to intimate Mr. Ibrahim."

4. Subsequently, the idea of enquiry, was given up and service terminated. In paragraph 4 of the affidavit of the respondent's Assistant Manager, the state of the mind is reflected of respondent, which Court prominently describes in their own words: "On coming to know for the first time, vide applicant's letter dated 8‑10‑1985, that applicant was detained in Jail under the charge of murder since May 1985. There was no likelihood of the applicant of being released early. Respondents were unable to wait indefinitely and keep the job. It was decided not to take disciplinary action but to apply the provision of simple termination."

5. This is the gist of the matter of the respondent's case, besides other peculiarities of the evidence of their witness.

6. Before the Court examines the factual, asepects, the Court briefly refers Standing Order

12. It gives the jurisdiction to the employer, to terminate the employment of a permanent workman, for any reason, other than misconduct. One month's notice shall be given. Standing Order 15 also is a provision in the Ordinance, itself, regarding disciplinary conduct, where one of the classification is of absence, without leave, by habit or without leave for more than ten days.

7. In the context of both these provisions, what the Labour Court understands from the Ordinance, is that Ordinance also has given certain protections, to the permanent workman assuring certain guarantees, what is laid down in sections 3 and 4 of the Standing Order Ordinance and further followed by subsection (6) of Standing Order

2. At the same time the right of simple termination is also given to the employer to terminate the services of the permanent workman for any reason, other than misconduct. If the Court takes its natural and plain meaning, the word simple termination is used. Similarly in Standing Order 15 the word simple absence is used. What the Labour Court feels that if a person comes, aggrieved, before the Court of law, to enforce its terms and conditions, the Court is also under obligation to ensure, the grievance he has placed before the Court, for the redress, is legitimate or frivolous. All it emphasizes that he is to be treated in accordance with law. In other words, whether the termination effected by the employer, was a simple termination, not actuated by any motive, or other extraneous, consideration, or malicious, or the, absence was intentional or unintentional or wilful. These are the aspects, which Court has to examine under obligation to ensure that if, the basic foundation is the administration of justice, the Court is not to go by bare words, if the interpretation by the party is stretched. True, what the Labour Court follows, that the word simple termination is also to be understood in the clear sense that it, would be, purely simple termination with no element of bias, malice or extraneous consideration, for example the factory is wound up, or there are financial constraints or other reason as emphasized in the sense what it conveys .rod understood by the Labour Court. So in the view of the Labour Court, every grievance requires the analysis, as for as to reach the objective, whether justice had been done or sentimental considerations have prevailed, or the gravity of the charge of heinous nature is made as the basis to sever the relationship from the '''an with the unpleasant carrier. So in the opinion of the Labour Court the Labour Court reaches the basic cause of the grievance.

8. Admittedly the applicant was in Jail on the charge of attempt to murder. If it is admitted in the application, that it was the leave applied during the confinement of the Jail, showing, the domestic problem, it is to be examined. In Ordinary course of human affairs, of which Court can take notice, in the context of the peculiarity of the facts, that the detention in the Jail, whether was beyond the control, of a person. Apart from these, there are many other aspects, whether he had access to the Jail Superintendent. There can be, two views based on these possibilities. Did Mr. Ibrahim try to conceal this fact from the employer living the good impression, rather than to disclose the charge of murder, to be lowered, in estimation of the employer though he may be innocent. Similarly mother view can be that did he do, intentionally, what the Court understands, from the style of documents, circumstances whether he was purposely absenting himself or had the genuine desire to be conscious of his duty but for the reason of such inability, where such tragedies do occur in the human life. Consequently the Court has to take the logical approach of the grievance rather than to see that his services should be dispensed with because he had remained absent.

9. There is another aspect also very important pointed by the counsel for the applicant, that the notice of show cause, if was sent on the ground of misconduct why the simple termination was affected? The management, what the Labour Court follows has misunderstood the application of the words "for any other reason", used in Standing Order 12 that services of permanent workman an be terminated. It is true that the plain and natural meaning of the words appears to be that the services of permanent workman can be terminated. In the view of the Labour Court the word "any of the reason", are also to be seen whether the termination was without any bias, or some other reasons and not with any other background. So, each case is to be examined in its intentional purpose, whether the termination for any other reason, was proper and just, ignoring the earlier action of enquiry. Why the inquiry was suddenly dropped and this step was followed.

10. In consequence of the facts, therefore, applicant was in the detention, beyond his control. Competent Court of law has not declared him guilty of the crime, of which if he had the intentional motive, to be unbearable to remain in the Industrial Complex as a clean and healthy workman. (The ex parte enquiry in the manner, it was directed on the service of, which, the Enquiry Officer was aware of his details, where he was detained. But, instead, prepared the paper formality of service). The dismissal, to hold, with his reasons, to affirm, this far- off reasoning cannot be fulfilled to achieve the objective of justice, and to have the judicial satisfaction, what the Labour Court holds its view. The criminal cases, if taken on sentiments that the case (was of attempt to homicide), what, is explained, sudden quarrel or domestic dispute, which according to him had no intentional motive, if the competent Court of law has not declared him guilty, his detention for the purpose of absence is to be examined by the Labour Court which influenced the Enquiry Officer to loose the job, when he was informing the employer regarding application of leave on the ground of domestic affairs which could be rejected for proper action. Indeed the applicant also would have is charged the better responsibility of speaking truth of detention, rather than to of the lose of estimation. The Labour Court also, in the context of the facts timing, before the Court every day, finds, that Enquiry Officer, has to keep in and also that justice, is not mere the paper formality. It is the perception of the highest value, of the human attribute of faculty, Justice of course is difficult task, that the Labour Court in its view has, found the enquiry, at lower base, as an experience in judicial matters, of which the Labour Court, has to take notice. Indeed, the employer has jurisdiction under Standing Order to proceed in respect of misconduct against the employee. But at the same time to shorten the litigation, reason the Enquiry Officer has to consider, all the aspects whether the human ground, to ca for action, in the context of the human there is substantial ground, to call, for action, in the context of the human realities thus reducing litigation. The word just and proper in such circumstances in section 25 of the 1.R.0., gives the jurisdiction to the Labour Court what conforms, to the requirement of the law on the basis of evidence, can pass, just conforms, to the req roper order, for, it has the jurisdiction, of review of the finding of the and proper This is what the Court has observed that if the Enquiry Officer was aware of his detention, service to be affected or attempted showing ignorance 0f the detention was not proper but to have waited to complete the enquiry after he reported for duty. There are some aspects, which may appear reasonable of explanation.

11. Mr. Yakoob has also referred the judicial precedent in case of Sikandar Hayat v. National Motors to show that the Honourable Chairman has also taken the view that if the employee, by misguiding establishment, sends the medical certificate and at the same time he did not avail the opportunity, before the Enquiry officer, and subsequently his services were terminated as a simple termination during the pendency of the criminal case, this is also the case on the same facts.

12. The Labour Court has examined the present case and peculiarities of the evidence in the context of the evidence as distinguishable, for every case has its own peculiarity of the fact and therefore the Labour Court in its conclusion arrives at this finding that mere pendency of the complaint of criminal nature, or showing that he was accused of attempted homicide cannot presume his guilt, unless the motive shows strong enough after the decision of the criminal case that he had the propensity of criminal tendency. But if he was accused of criminal nature, where he explains that it was a family dispute, such presumption will be premature to form the view that his employment will not be in the interest of industry. Otherwise, his performance of the job, as found from the evidence, has not been unpleasant, except what is shown, that, he was involved in criminal case.

13. Mr. Yakoob has however also raised the point of limitation that termination order was passed on 8‑11‑1985 and therefore the limitation cannot be cured. The Court would have accepted this contention as plausible only, when the order was legal order and not void and nullity in the eyes of law. It is a matter very simple, that the department having made up mind to proceed, in the enquiry, did not follow the legal procedure but exercised the jurisdiction under Standing B Order

12. In the opinion of the Labour Court, the services of permanent workman who has put a long service with no unpleasant history except this remote act, which still stands undecided by the Criminal Court to the role he played, the termination simple, was not proper merely, because that the employer put his own interpretation that the services of permanent workman for any reason other than misconduct can be terminated. It is the Labour Court which is to examine and review the action of either party, to see, that the termination effected of an employee, under the Ordinance is not influenced, by any motive or the consideration of the officials, to get rid of it. The labour Court, by virtue this Constitution, under the Ordinance of I.R.O. is the forum to redress the grievance of an employee or employer as the case may be, to pass the order which it finds just and proper in the context, of the law.

14. Consequently the release from the judicial custody on 10‑5‑1987 gave cause of action from that day because this is the starting point of the grievance when it came to his knowledge, not otherwise brought this fact to the Jail address when employer knew fully well that he is in detention. Although appeal show that he has filed appeal.

15. Briefly outlining the case merits, the question of back benefits also has passed through Courts indulgence. To maintain the equity, that employee also has not worked, he cannot be entitled, to back benefits to burden the establishment with monetary loss. No doubt, the detention was beyond his control, but it was due to his domestic dispute. He went inside the jail, he cannot be entitled to back benefits what the Labour Court finds proper, to disallow. But with this qualification that his absence shall be treated without pay but if the leave is due which is also his right and he had earned prior to detention, the management can exercise the discretion in all fairness of the view, that, Labour Court has taken in the case. In the result the application is allowed in the terms of directions as above. Other side has referred the case law 1986 P L C 836, 1987 P_ L C 155, 1983 P L C 707, 1983 P L C 1970; 1986 P L C 507, 1986 P L C 296, 1983 P L C 288, 1975PLC48and1985PLC

874. A.E./1200/Lb.S. Application allowed.