1990 PLP 302 (PLC)

Zamiruddin Ahmad for Respondents. Date of hearing: 25th April, 1989. These two appeals arc directed against the orders passed by the Sindh Labour Court No. II, Karachi, dated 16‑12‑1987. I propose to dispose of these 2 appeals by this single decision as the points of fact and law involved in both these appeals are similar.

2. Admittedly both the appellants were working as workmen with the respondents, namely, Kohinoor Marble Industries Ltd., Karachi. The respondents had closed their factory on 16‑1‑1986 and terminated the services of all the workmen excepting the present 2 appellants and a peon. The case of the appellants is that when the factory was closed, they were orally asked not to come from 18‑1‑1986 and that they would be called when the factory is re‑started. However, the case of the respondents is that appellant Abdul Hannan continued to attend upto 27‑1‑1986 and thereafter remained absent without intimation. Whereas the appellant Mirza Zamir Baig had attended the duty upto 2‑11‑1985 and remained absent thereafter even before the closure of the factory. Therefore, the appellants were intimated and written orders were sent under Postal Certificates, dated 1‑3‑1980, and 11‑1‑1986 respectively, that their services were terminated because of their continuous absence from service for more than 10 days. However, after the factory restarted working on 15‑7‑1986, the appellants reported for resumption of duties but they were not allowed to resume duties, therefore, they had served grievance notices upon the respondents on 30‑8‑1986, but, failing to have their grievance redressed, they filed their grievance petitions which were dismissed by the learned Labour Court vide impugned orders on the ground that the grievance notices as well as the petitions were barred by limitation.

3. Mr. S.P. Lodhi, learned representative for the appellants mainly contends that there was no proper service of notice upon the appellants by the respondents and only photostat copies of postal certificates have been produced by the respondent before the learned Labour Court which cannot be considered as proper service. But, he concedes that the address shown therein is proper address. However, I find main difficulty that respondent faces the bar contained in Standing Order 15(4) which reads as under:‑‑ "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employers and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with charges against a workman." Remaining absent for more than 10 days is a misconduct under Standing Order 15(3) for which the employer is entitled to impose penalty of dismissal but before he could impose the penalty of dismissal, he has to give a notice in writing bringing to the knowledge of the workman his misconduct within one month of the cause of action and also to hold domestic enquiry to afford an opportunity to the workman to explain the circumstances alleged against him. In the instant case, the notice, in writing, has been given and even if the service is held to be good, admittedly, no domestic enquiry has been held. As such, the workmen have been deprived of the vested right to explain the circumstances alleged against them. Such an order is against the principle of natural justice as well as in violation of rights guaranteed under law vested in the workmen and the dismissal order is a void order. There can be no limitation against void order. Such an order is not maintainable and is liable to be set aside. I accordingly allow both the appeals and set aside the impugned orders and order the reinstatement of the appellants with 50% (fifty per cent) back benefits from the date the factory commenced refunctioning. A.E./1436/Lb. S ????????????????????? Appeals allowed.