1988 PLP 983 (PLC(CS))

Kamal Mansoor Alam for Appellant. Mirza Mohammad Kasim for Respondent. Date of hearing: 22nd March, 1988. These are two cross appeals, one bearing No. KAR-125/86 filed by Messrs Pakistan Steel Mills Corporation Ltd. Karachi, while the other, bearing No. KAR-126/86 filed by the worker, namely, Sharafat Ali, both against a common impugned order, dated 27-4-1986, passed by the Sind Labour Court No. IV at Karachi, who had allowed the grievance petition of the workman under section 25-A, 1.R.0. 1969, directing his reinstatement in service on a reduced rank or post, but without back benefits. The management of Pakistan Steel Mills has preferred the present appeal against the impugned order of re-instatement in service while the workman has filed his appeal against the impugned order of reduction in his rank post and without back benefits. As, the impugned order common and similar to both these appeals, therefore, I would also decide both these appeals by this single decision.

2. Briefly stated the facts of the case were that the workman sharafat Ali claimed to be a permanent employee of management and that as his wife had fallen seriously ill and he had no means to intimate the management about his absence, therefore, on 10-12-1984 besides the telegraphic massage, he had also sent leave application. The workman claimed that from time to time he used to inform the management through telegraphic messages about the `e ranu.5 illness of his wife and had also sent Medical Certificate in support of his request for leave, but, the management always refused to- grant the leave and to accept the authenticity of the Medical Certificates. Further the claim of the workman was that as he and his wife were both under medical treatment of Dr. ZA. Ansari who had also issued a Medical Certificate from 21-12-1984 to 23-12-1984 and despite this fact, the management had not only the knowledge of his and his wife's illness and thereafter compelled to produce certificate from its Medical Officer but, it had also issued a show-cause notice alleging therein his tin-authorised absence from 10-12-1984 to 19-12-1984 as well as 23-12-1984. The workman further claimed that though he had submitted his satisfactory reply to the show-cause notice but an unfair, biased and illegal domestic enquiry was alleged to have been conducted against him resulting in his dismissal from service. Therefore, being aggrieved, he had served his grievance notice followed by the grievance petition under section 25-A, I.R.O. 1969.

3. The management of Pakistan Steel had resisted the petition on the ground that it was not maintainable being barred by limitation and secondly that as the charge of misconduct of being habitual absentee as well as for remaining absent without permission had been fully established in fairly, lawfully and impartially held domestic enquiry in which though he had been provided full opportunity to defend himself, but he had not deliberately and purposefully participated, therefore, the enquiry officer found him guilty of the 1isconduct in an exporter enquiry resulting in his dismissal from service.

4. Both the parties led their respective evidence in support of their cases and they were cross-examined. Thereafter, the learned Labour Court has passed the impugned order; hence, the present two cross-appeals.

5. I have heard Mr. Kamal Mansur Alam, the learned Advocate for the management of Pakistan Steel Mills Corporation Ltd. and Mr. Mirza Mohammad Kazim the learned Advocate on behalf of the workman Sharafat Ali and have also carefully perused the record and proceedings of the case. It was contended by Mr. Kamal Mansoor Alam, the learned Advocate for the management that the impugned order is quite contrary to law and facts as it was not vested in it to reduce the punishment and or to order reinstatement of the workman on a reduced rank or post, particularly when the guilt of the workman was proved in a fair and lawful domestic enquiry and so the learned presiding could not sit in appeal over the findings of the enquiry officer. It was further con1cndcd by Mr. Kamal Mansoor Alam, the learned Advocate for the management that the workman was chronic habitual of absence without leave. On the other hand, it was vehemently argued by Mr. Mirza Mohammad Kazim, the learned Advocate for the workman that he was unlawfully and illegally dismissed from service on 2-1-1985 with retrospective effect from 23-12-1984 and that even without giving an opportunity to explain the circumstances and the facts that the alleged enquiry letter was not served upon him. Mr. Mirza Kazim has further argued that the learned Labour Court had also erred in not accepting the Medical certificates without assigning cogent reasons. He has further stressed that in view of the decision of Sind High Court in Constitutional Petition No. D-47 of 1983 the learned Lab our Court was to competent not reduce the rank of the workman at the time of ordering his original post with all back benefits. In view of the submission of Mr. Mirza Mohammad Kazim, `the learned Advocate for the workman, I am of the opinion that the management was not correct in dismissing him from service without compliance of the legal requirements, therefore, he is entitled to be reinstated in service on his original post and his dismissal from service must be sat aside. Further, the learned Labour Court in view of the facts, evidence and legal aspects brought on record has also not correct in reducing his rank or post while ordering his reinstatement in service and that as the dismissal of services of the workman was contrary to law, therefore, I would also hold that the workman, namely, Sharafat Ali S/o Riasat Ali would be entitled to get full back benefits.

6. For the reasons discussed by me above, I would partly set aside the impugned order and would allow the appeal of the workman and would direct that he be reinstated in service on his original post and rank with full back ` benefits, forthwith. As regards the appeal filed by the management of Pakistan Steel, in view of my above discussion and observations, it is hereby dismissed. A.E./1275/Lb. S. Orders accordingly.