P L D 1976 Karachi 787 (PLP)

S. O. 15(3)(e)-Absence from duty without leave-"Abandonment" of service-Meaning.-[Words and phrases]. Black's Law Dictionary ref. Messrs Jeewanlal Ltd., Calcutta v. Its Workmen A I R 1961 S C 1567 not applicable. (d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance (VI of 1968)- S. O. 15(3)(e)-Misconduct-Absence without leave for more than ten days-Mere absence, though prolonged, does not by itself terminate employment-Notice or charge-sheet not issued to permanent work man for such absence nor any orders (of dismissal) passed-Order of Labour Court re-instating workman concerned-Held, not open to, any exception. Muhammad Ali Saeed for Petitioner. Ali Amjad for Respondents Nos. 2 to 9. Date of hearing : 10th March 1976. This constitutional petition calls in question the composite decision dated November 28, 1973, of the First Sind Labour Court, by which the respondent& 2 to 9 were ordered to be re-instated in their employment, but without any back benefits, pending any action to be taken against them by the present petitioners. 2. The respondents 2 to 9 were employed by the petitioners in various categories. It is alleged that, on the outbreak of war between India and Pakistan, and the bombing of Karachi in December 1971, the said respondents took fright, and, leaving their quarters, took to places of safety elsewhere, leaving the petitioners in the dark as to their whereabouts. They did not even choose to take any advantage of the directive issued by the Governor of Sind dated 6-1-1972, according to which the employees, who reported to their duties at the place of their employment by 19-1-1972, were to her taken back. It is alleged that tie respondents 3 to 9 had approached the petitioners for re-instatement between 8th to 10th February 1972, but their request could not be entertained in view of their conduct. Thereupon, on. 13-3-1972, they filed separate applications under section 34 of the Industrial Relations Ordinance for their re-instatement, with the prayer that they be also awarded full back benefits. Their applications came to be resisted on the ground of non-maintainability inasmuch as the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had not been followed by the said respondents, and also on the plea that they had no right for re-instatement, as they had chosen to abandon their work, and' remained absent from their duty for over two months. The learned Presiding Officer found that the pleas of the said respondents that they had proceeded, on two months' leave on the suggestion of the petitioners themselves because of slackness of the business, and that they were not allowed to resume their duties because of their Union activities, were untenable. However, he was of the view that the compliance with the mandatory provisions of Standing Order 18 was not necessary, as the petitioners' establishment fell within the definition of the West Pakistan Shops and Establishments Ordinance, 1969 and, otherwise too, their applications under section 34 of the Industrial. Relations Ordinance were competent and had been filed without any loss of time. The said respondents according to the Labour Court, could be proceeded against for misconduct for deserting their duties, but that procedure was not: resorted to, and, under the circumstances, they were entitled to re-instatement,. but, in the circumstances of the case, without any back benefits. It was, how ever, open to the petitioners to take any action against them, for the alleged misconduct. In case, the petitioners failed to take the legal action against. the respondents within one month of the order, they would then be entitled to back benefits also. 3. It is conceded by the learned counsel for the contesting respondents that the Labour Court was in error to have found that the establishment of the peti tioners fell within the definition of the West Pakistan Shops and Establishments Ordinance, 1969. It will be covered by the definition of the commercial estab lishment as to be found in section 2 (b) read with section 1(2) (b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. On 13-3-1972, when the applications were filed by the respondents 2 to 9, Standing Order 18 of the said Ordinance was still on the statute book. It came to be omitted by the Labour Laws (Amendment) Ordinance, 1972, dated the 13th of April 1972, when section 25-A was inserted in the Industrial Relations Ordinance. This section 25-A dealt with the redress of individual grievance in place of Standing Order 18. According to Standing Order 18, which was in force on the day the applications were filed, a workman having any grievance in respect of any matter under the Ordinance and seeking redress thereof had to bring his grievance to the notice of the employer in writing within fifteen days of the occurrence of the cause of such grievance, and, not finding any satisfaction with the decision of the employer, if any, within thirty days of the communication, a complaint to the Industrial Court was to be filed within thirty to sixty days as the case may be, unless the grievance bad already been raised, or, had otherwise been taken cognisance of, under the provisions of the West Pakistan Industrial Disputes Ordinance. The terms of Standing Order 18 are express and mandatory in nature, and any breach thereof would be fatal. It has been so held in Naseem Silk Industries v. Vth Sind Labour Court and another (P L J 1974 Kar. 80) and Saleemsons Ltd. v. The Second Sind Labour Court, Karachi and another (P L D 1973 Kar. 1). Both are Division Bench judgments and are binding in nature. It is, however, to be seen that the grievances of the respondents 3 to 9 had been duly addressed to the peti tioners by the Union on 16-2-1972, that is, within two weeks of the occurrence of the grievance. The communication is on page 33 of the record of the Labour Court. The applications by these respondents were filed within a month thereof. That is also within the period prescribed under Standing Order 18. The complaint to the Labour Court, however was made not under Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but under section 34 of the Industrial Relations Ordinance. The question to consider would be whether such an application was competent? In March 1972, the word "workmen" had not been deleted from section 34. It was deleted only from 10th November 1972. Even Standing Order 12 of the Standing Orders Ordinance, which deals with the termination of employment, was also amended; from 15th November 1972, so as to make it incumbent on a workman,, aggrieved by the termination of his services, to file an application under section 25-A of the said Ordinance. It will, therefore, appear that the respondent had the option to seek the redress of their grievance both under Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and also under section 34 of the Industrial Relations Ordinance, and they choose the latter. That they could do so was the view taken by Mr. Justice Inamullah Khan, Appellate Tribunal, Sind Labour Court, in Brooke Bond (Pakistan) Ltd. v. Mahabat Khan etc. (1975 P L C 156). I fully agree with the view taken therein. Thus, even the case of Sain Muhammad does not suffer from any legal solecism. 4. The case of the respondents 2 to 9 was that they had proceeded on two months' leave at the bidding of the petitioners, while the version of the petitioners was that they had abandoned their job and remained untrace able till the second week of February 1972. The version of the petitioners, prevailed with the Labour Court. According to the Black's Law Dictionary,' "abandonment' means to give up absolutely, to foresake entirely, to renounce . utterly, to relinquish all connections with or concern in, to desert. It includes the intention and also the external act by which it is carried into effect. C Mr. Ali Amjed learned counsel for the respondents 2 to 9, has also referred me to the case of M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen (A I R 1961 S C 1567). In this case, the point at issue was as to how continuous service was to be interpreted. In the course of the discussion, it was observed that "if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such long period of time that an inference .may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service". However, this was a question of fact and not material for these proceedings. According to Standing Order 12, clause (4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the services of a permanent or temporary workman shall not be terminated on grounds of misconduct otherwise than in the manner prescribed in Standing Order 15. According to clause (3) of Standing Order 12, where the employment of any workman is terminated, the wages earned by him and other dues including payment for unavailed leave as defined in clause (1) of Standing Order No. 8, shall be paid before the termination of employment. According to Standing Order 12, clause (5), where the services of a permanent workman are terminated for reasons other than misconduct, he shall, in addition to the wanes payable to him under clause (I), be paid gratuity equivalent to fifteen days' wages for every completed year of service or any part thereof in excess of six months There is nothing to show that anything within the meaning of clauses (3) and (5) was ever even attempted to be done by the petitioners. Anyway, the allegations against the respondents will, as found by the respondent No. 1, fall within the definition of "misconduct" as to be found in Standing Order 15, clause (3)(e) of the Ordinance, being absence without leave for more than ten days. Mere absence, prolonged though, by itself does not terminate employment. The procedure under Standing Order 15, as found by the respondent No. 1, under the circumstances, had to be necessarily followed. The addresses of the respondents 2 to 9 must have been on the record of the petitioners. as they were permanent workmen, but no notice, or, charge -sheet was issued to them, and no orders were passed at all. That would he circumventing the provisions of the said Ordinance, for which there is no warrant. I am, therefore, of the opinion, that the impugned order is not open to any exception. In the result, the petition fails and is hereby dis missed with costs. S. Q. Petition dismissed.