1993 PLP 454 (PLC)

6. The petitioner apart from himself examined his brother Kamran Aziz Shaikh. Syed Zeeshan Ahmed the Personnel Officer of the Marketing Division of the P.I.A. appeared on behalf of the Corporation.

7. The Labour Court for the reasons given by it allowed the petition but declined to grant back benefits.

8. An objection was taken about the maintainability of the petition that since the provisions of subsections (2), (3) and (4) of section 10 of the Pakistan International Airlines Corporation Act, 1956 were in existence at the time of the dismissal order, the provisions of the I.R.O. were not applicable. However, this contention was overruled by the Labour Court, as in 1989 section 10 referred to above was deleted and the jurisdiction of the Labour Court was extended to the employees of the P.I.A., and the information about the dismissal of the petitioner came to his knowledge after his return to Karachi in August 1990. Mr. Masood Ahmed Khan learned counsel for the Corporation very properly did not press this contention before me.

9. He maintained that when the petitioner did not return to resume his duties after the expiry of the leave, and there was also no application received by the Corporation for extension thereof, they had sent telegrams at all the known addresses at Karachi and Bahawalnagar and still there was no trace of the petitioner. The show‑cause notice was issued on 15‑7‑1987, and the enquiry letter followed. As still there was no news, ex parte proceedings had to be resorted to. These facts are not denied by Mr. M.L. Shahani.

10. It was further contended by Mr. Masood Ahmed Khan, learned counsel for the Corporation that the petitioner had proceeded to Cairo without obtaining No‑Objection Certificate from the authorities which he was bound to do under the P.I.A. Rules. However, the leave period had expired and he did not care even to ask for extension. On his own showing he fell in the hands of the Egyptian Police on or about the 17th of June, 1987 the other version being that he was arrested by the Police and was put in the Jail on the 27th. Even if he had asked for extension of leave that would not be enough, but he had no intention to do so at all. He has stated that he had given a ring to his brother Kamran Aziz informing him of the happenings and also that he had seen a lady P.I.A. Officer at the Airport and had requested her to convey what befell him to the authorities. The fact, however, remains that this is not to be found in the grievance application either, and came to be introduced in the petition. However, the petitioner has not chosen to give the k pie of the P.IA. Officer. There is nothing anywhere to show that such a information was made available through that source.

11. Mr. Kamran Aziz who is a lawyer has however deposed that on receiving the information from his brother he had 8~;en a ring to the Director Administration and not getting a satisfactory reply had sent a letter to the authorities under a Certificate of Posting.

12. Mr. Masood Ahmed Khan pointed out that on stamp mark was totally defaced and it was not possible to make out the date. He also referred to the case of Anwar Hussain v. M/s. Muhammad Farooq textile Mills Limited 1979 PLC 509 wherein it was held, that, looking to the v4 jries of the postal system net presumption could be raised under section 27 of the General Clauses Act that the letter had reached the addressee in due course.

13. Mr. Shahani, learned counsel for the petitioner, however, urged that the P.IA. had still not cared to publish a notice in regard to the holding of the enquiry in the papers which could have apprised hid relations and friends, who could have moved to defend his interest.

14. It is true that it is one of the modes of substituted service, but I do not think it is an indispensable requirement under the law.

15. Mr. Masood Ahmed Khan referred to the case of Dawood Cotton Mills v. Guftar Shah and another PJ.D 1981 SC 2?~ where it was clearly held that substituted service by publication in a newspaper in addition to the other mode of service was not a necessary condition, and the Standing Orders Ordinance, 1968 does not so prescribe. It went on to hold that where a person against whom action was proposed to be taken, by his own negligence impedes the actual service of notice, he cannot be heard to Spy that he was not actually served and for that matter to challenge the decision taken in his absence.

16. Mr. Shahani, however, said that at least the notice in that case was to be put on the Notice Board. It is nobody's guess that even if that was done, any benefits could have secured to the petitioner.

17. I do not think that in the circumstances of the case any fault can be found with the holding of the enquiry ex parte against the petitioner. The enquiry report has been put on the record. It shows that only 3 persons by the names of Muhammad Arshad, Abdul Majeed, and Muhammad Siddique were examined and their statements were confined to the period of leave and the continued absence of the petitioner thereafter. Nobody from amongst them had opened his lips about the past conduct of the petitioner. However, Syed Zeeshan Ahmad who had appeared as a witness before the Labour Court on behalf of the respondent had chosen to say that his past conduct also had been taken into consideration by the Chairman before passing the order of dismissal.

18. Admittedly he had not participated in the enquiry as a witness nor in any other capacity nor he mentions his presence at the time the order was recorded by the Chairman. On this own showing personally he had no personal knowledge about the petitioner. This assertion could therefore be nothing more than his surmises for which there is no basis.

19. Mr. Shahani learned counsel for the petitioner urged that if this additional information had not been at the disposal of the Chairman it could not be considered for definite, that he would have passed the order as he chose to pass. This contention was countered by Mr. Masood Ahmed Khan, with a reference to the case of Pakistan Tobacco Company Limited v. Pakistan Cigarette Labour Union 1982 PLC 514 where the following observations occur: "It is, no doubt, possible that these previous punishments ‑may have influenced‑the competent authority while awarding the respondent the severe penalty of dismissal, but as these penalties were entered in the record of the respondent and the employer is not precluded from consulting the employee's record before deciding the quantum and type of punishment to be awarded to a delinquent workman the proceedings in this case cannot be considered to be invalid or to suffer from any illegality."

20. Looking to the circumstances of the case no fault can be found in the holding of the enquiry ex parte or the order which has been impugned before me. In the result I will set aside the order passed by the Labour Court and allow the appeal filed by P.I.A. As a corollary, the appeal filed by the petitioner in regard to the back benefits which had been denied to him by the Labour Court stands dismissed. H.B.T./2051/Lb.S Order accordingly.