1998 PLP 273 (PLC)

S.O. 15(3)(e)

Misconduct

Only wilful and habitual absence from duty without leave could be treated as 'misconduct' and simple absence, not attended by any habit of that kind or any conduct betraying obstinacy or deliberateness on the part of employee, could not be construed as misconduct. 1986 PLC 822 and 1985 PLC 618 ref. Khalid Saleem for Appellants. Ch. Shabbir Ahmad for Respondent. Date of hearing: 20th October, 1996. By a judgment announced on 4-6-1992, Punjab Labour Court No. 6, Rawalpindi accepted Javed Iqbal's grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, and ordered his reinstatement in service, with full-back benefits. Pakistan Petroleum Limited, which concern Javed Iqbal was an employee of, has come up in appeal to this forum. Following briefly is the background of the case:--

2. Javed Iqbal was dismissed from service on 27-7-1991, for having committed an act of misconduct, by remaining absent from duty without leave, allegedly from 18-1-1991 to 20-2-1991. The employee's assertion, however, is that he had obtained leave and was to resume duty on 18-1-1991, but he met a motor-cycle accident, and his ankle was fractured, and the same was supported by a medical certificate. According to the employer, he had sent a telegram on 28-1-1991, stating that he would be coming with a medical certificate. After waiting for a few days, the appellant concern addressed to the employee a telegram on 10-2-1991, requiring him to report to the Company Medical Officer at Sui. He failed to do so and submitted medical certificate, issued by one Dr. Amir Muhammad Bugti, Incharge, Civil Dispensary, Sui. He was stated to be suffering from hepatitis, and rest from 18-1-1991 to, 16-2-1991 was recommended. As per policy of the Company, according to the appellants, medical leave to an employee could only be granted on the recommendation of the Company Medical Officer. This rule/practice was violated by Javed Iqbal. Still the Company arranged for his medical check-up, as also laboratory test. It was revealed that he was healthy and was not suffering from any disease, nor had his ankle been fractured, and actually his feet-did not bear any marks of violence/injury. Javed lqbal, however, again, on 17-2-1991, obtained a medical certificate from the same doctor (Dr. Bugti), who advised him complete bed rest for further five days (17th to 21st February, 1991). Javed Iqbal resumed duty on 21-2-1991; and was served with a show-cause notice/charge-sheet on 19-3-1.991. He submitted a reply to it, on the following day. His reply was found to be unsatisfactory; and one Mr. Farrukh Mirza was appointed as the Inquiry Officer. He held the inquiry on 10-4-1991 and the same was concluded within half an hour or a maximum period of an hour. It was held at Adhi, although Javed Iqbal claims having made a request that the inquiry be held at Sui. Mr. Farrukh Mirza appeared as RW-1, before the Labour Court, and Mr. Rafiq Hasan Khan, Acting Production Engineer, Incharge Adhi Field, was examined as RW-2, The latter, on receipt of the inquiry proceedings and the inquiry report, Exhs. R-2 and 3, respectively, issued a second show-cause notice to Javed Iqbal, who was also heard in person. Then he submitted the whole record, with his recommendation to the manager, Human Resources, Head Office, at Karachi.

3. First objection raised by the establishment is as regards the status of the employee and the maintainability of the grievance petition. He was a Security Inspector, but as his job was to check the work of Chowkidars, as many as 18, under him, and he used to do so by walking on foot, the nature of the job was manual, and he could not be taken as working in any managerial or supervisory capacity. Even the contents of the show-cause notice/charge-sheet would furnish an indication that the action against the delinquent was proposed to be initiated under Standing Orders 12 and 15 of the Standing Orders Ordinance, 1968, and these provisions were meant for workers only and not for other categories of the staff. In his statement on oath, made in the Labour Court, Javed Iqbal has described his duties; and the same also leave little doubt about the fact that he waz only a workman. It may be noted that the establishment has led no evidence in rebuttal. Reliance in this behalf has rightly been placed on 1992 SCMR 505 and 1977 SCMR

103. Assertion of the employee about being a worker has gone unchallenged and as pronounced in 1991 PLC 494 (Lahore High Court) and 1991 PLC 348 (Labour Appellate Tribunal Wing), the onus to establish that the employee was not a worker would shift to the employer, who has failed to discharge it.

4. A security guard and a member of Watch and Ward may legitimately maintain a grievance petition tinder section 25-A, Industrial Relations Ordinance, 1969. It has been so held in 1994 PLC 497 (Punjab Labour Appellate Tribunal). The employee had been called upon as to why disciplinary or final action should not be taken against him, under the provisions of the Standing Orders Ordinance, 1968, and the final show-cause notice, followed by the dismissal order, had also been issued under the said Ordinance, Standing Order 15 of which, enumerates punishments, which may be awarded to a worker. Jurisdiction of the Labour Court to take cognizance of such a case and decide it factually and legally cannot possibly be challenged (1989 PLC 947). In so many matters, and to several organisations and departments, the Pakistan Essential Services (Maintenance) Act, 1952 has been made applicable. The Labour laws, however, were subsequently enacted in the year 1968-69 and good many classes of low paid employees were subjected to jurisdiction of Labour Courts and were made eligible to invoke the aid of Labour Laws in their favour. There is hardly any doubt about non-applicability of the aforesaid Act of 1952, to the case in question.

5. Pakistan Petroleum Limited had expressed the desire and made an application to amend the written statement (reply), submitted in the Labour Court, with a view to plead that Javed Iqbal, being a member of the Security Staff, could not be treated as a worker and could not have access to the Labour Court. Applicability of Pakistan Essential Services (Maintenance) Act, 1952 was also intended to be introduced. Such legal objections, however, could be raised by the respondent before the Labour Court, at the earliest, and normally at the appellate stage a new case is not allowed to be set up and such amendments in pleadings are declined. It cannot, however, be disputed that it is the duty of a Court to determine it, first of all, if it has jurisdiction in a matter, and without even such an objection having been raised, in the written statement, it is always open to a party to the obligation to canvass such a legal proposition and a Court of Law cannot refuse to deal with such an issue whether it is placed before it initially or subsequently at higher level. It is to be noted that without an objection taken to that effect in the reply, this Court has accorded it due importance and has proceeded to determine it. Similarly, there was no need to allow the appellant to lead additional evidence, as according to the respondent, it would have amounted to enabling the appellant to fill lacunae in its case. No notification was placed before the Labour Court by the respondent there, in order to oust the jurisdiction of the Court in the matter, or to establish that the employee could not be treated as a workman.

6. In the case Attock Refinery Limited v. Lal Khan' (Appeal No. R I- 246 of 1993), this Tribunal held on 30-3-1994 that a person, to whose case provisions of the Industrial Relations Ordinance, 1969 do not apply, could still have access to the Labour Court under Standing Order 12(3), Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that Standing Order 12(3) covers, within its fold, the spirit and intent of section 25-A, Industrial Relations Ordinance, 1969, as well. Standing Order 12(3) interjects itself into the Industrial Relations Ordinance, 1969 and the provisions of the said Ordinance are attracted to the case of a workman, to whom provisions of Standing Order 12(3) apply. It was so held in 'K.A.K. Afridi v. Pakistan International Airlines Corporation' (1992 SCMR 1379), 'Syed Matloob Hussain v. Brooke Bond Pakistan Limited' (1992 SCMR 227) and 'Security Paper Limited v. Sindh Labour Appellate Tribunal and another' (PLD 1988 SC 180). If a workman is removed from service, in violation of provisions of Standing Order 12 of Ordinance VI of 1968, he may get his grievance redressed by approaching the Labour Court under section 25-A, Industrial Relations Ordinance, 1969.

7. In so far as the right of appeal is concerned, any patty aggrieved by an order of the Labour Court may prefer an appeal before the Labour Appellate Tribunal. It was so pronounced in 1991 PLC 32 (Lahore High Court) and 1988 PLC 595 (Labour Appellate Tribunal Punjab). On the strength of an authority letter, available on the file of this Court the appeal appears to have competently been filed by the learned counsel, on getting the memorandum of appeal signed by the Chief Industrial Relations Officer of the concern. This officer was not a party before the learned Labour Court, but the interests of the Pakistan Petroleum Limited respondent before the Labour Court, against which body the Labour Court had returned the verdict, had evidently been injured, and under section 37(3), Industrial Relations Ordinance, 1969, it was open to the aggrieved party to file an appeal within the stipulated period (thirty days) against the decision of the Labour Court. Provisions of section 37(3) were compared with those of Order XLI, Rule 1, C.P.C. by this Tribunal, as also by the Lahore High Court, and the observations made do not render the appeal to be incompetent in any manner.

8. Only wilful and habitual absence without leave may be treated as misconduct, and simple absence, not attended by any habit of this kind or any conduct betraying obstinacy or deliberateness on the part of the employee, could not be construed as misconduct. Javed Iqbal's application for leave was supported by medical certificates; and bona fides or qualification of the doctor, who issued the certificates, could not be challenged. This Tribunal had pronounced like that in 1986 PLC 822 and 1985 PLC

618. It is to be borne in mind, in particular, that even after this incident, Javed lqbal was awarded double increment, in recognition or appreciation of his meritorious services. It would follow that the management had not taken that seriously his absence from duty on medical ground and had treated it as justified on wholly valid premises.

9. In view of the discussion above, what flows as a natural corollary and consequence is that the cross-objections filed by Javed Iqbal, respondent, do not have much of force, and are liable to rejection. The appeal filed by the Pakistan Petroleum Limited, similarly, is devoid of merit, and deserves outright rejection. I proceed to dismiss the appeal of the Pakistan Petroleum Limited, as also the cross-objections lodged by Javed Iqbal, but will make no order as to the costs of litigation. H.B.T./887/Lb.P Appeal rejected.