2006 PLP 169 (PLC)

RAHMAT HUSSAIN JAFFERI, J.

The present appeal is directed against the judgment dated 30-8-2004 passed by the learned Presiding Officer Sindh Labour Court No.VI Karachi by which the learned Presiding Officer reinstated the respondent in the service with all the back-benefits.

2. Brief facts of the case are that the respondent was serving in the establishment of appellant as loader. On 19-8-1999 to 21-8-1999 the respondent became sick therefore he did not attend his duties. On 24-8-1999 he moved an application for grant of leave, on which a show-cause notice was issued to the respondent who replied the same but it was found unsatisfactory by the appellants therefore an inquiry was conducted. After the inquiry, the respondent was terminated from the service. The respondent served the grievance notice upon the appellants. They replied the notice but it was found not satisfactory therefore, the respondent moved the Labour Court for his reinstatement in the service with all back-benefits.

3. The appellants were served they filed the objections in which they claimed that provisions of Industrial Relations Ordinance, 1969 were not applicable; that the respondent was in habit of remaining absent therefore his absence on 19-8-1999 to 21-8-1999 amounted to misconduct therefore. an inquiry was conducted in which he was found guilty therefore his services were terminated. They prayed for the dismissal of the grievance petition.

4. Out of the pleadings of the parties, following issues were framed:--

1. Whether the provisions of I.R.O., 1969 are not applicable to the respondent?

2. Whether the alleged charge upon the applicant tantamount to misconduct and the applicant has been dismissed legally?

3. Whether the applicant is entitled for the claim prayed for?

4. What should the order be?

5. The parties led evidence in support of their respective claims. After considering the evidence and hearing the parties counsel the learned Presiding Officer decided all the three issues against the appellants therefore allowed the grievance petition. The appellants were ,dissatisfied with the said judgment therefore they have preferred the present appeal.

6. I have heard the parties Advocate and perused the record of this case very carefully. The learned Advocate for the appellants has not challenged the findings of the trial Court on Issue No.1 but he has challenged the finding of the trial Court on Issue No.2 by arguing that the respondent remained absent in the year 1989 for which show-cause notices were served upon him therefore he was in habit of remaining absent; that the absence for three days from 19-8-1999 to 21-8-1999 amounted to misconduct therefore inquiry was held which was proved against him therefore his services were terminated.

7. Conversely the learned Advocate for the respondent has stated that the absence in the year 1989 cannot be termed as a habit; that for that absence no action was taken by the appellants but warnings were issued therefore it will not come within the definition of misconduct; that the absence for three days in the year 1999 does not amount to misconduct as the respondent was sick and submitted such medical certificate therefore his termination was illegal.

8. It is admitted position that on 19-8-1999 to 21-8-1999 the respondent did not attend the establishment for performing his duties. For that absence a show-cause notice was issued to the respondent which A was replied but it was found unsatisfactory therefore an inquiry was conducted. The Inquiry Officer found the charge proved therefore he submitted the report to the competent authority that dismissed the respondent. A workman can be dismissed from service on the ground of absence without leave if he commits misconduct within the scope of Order 15(3)(e) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1969 that reads as under:- (3) The following acts and omissions shall be treated as misconduct

(e) habitual absence without leave or absence without leave for more than 10 days.

9. Clause (e) is divided into two parts. First part deals with habitual absence and the second part deals with absence of 10 days without leave. The case of the respondent does not fall within the second clause. Now it is to be seen whether the case of the respondent falls within the first clause. For that purpose, the appellants are required to prove not only the absence but also such absence amounts habit of the worker. The word "habitual" has been defined in the American Heritage Talking Dictionary as under: "Occurring regularly, chronic, common, continual, daily, frequent, recurrent, regular, usual, repeated, recurring, consistent."

10. From the above definition, it is clear that habit implies a tendency or capacity resulting from the repetition of the same acts or indulgence therein. It implies frequent indulgence in such acts connoting depravity of character. As such habitual implies a frequent practice or use and always used to persons who are doing persistently the same act.

11. In the present case the learned Advocate for the appellants has refer to the act of the respondent which took place about 10 years back and for that no action was taken by the appellants as such the said act would not form the habit of the respondent and it is out of the scope of the definition of "habitual" therefore the case of the respondent does not come within the scope of misconduct as mentioned above. Thus, the finding of the learned Presiding Officer does not require any interference.

12. Above are the reasons of my short order dated 6-9-2005 by which I had dismissed the appeal. H.B.T./S-144/K?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.