1984 PLP 1048 (PLC(CS))

Appeal No. SA‑384 of 1980/Pb, decided on 16th September, 1981. ‑‑ S. 4, read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 13 (3) (e) ‑ "Habitual absence" ‑ Employee of Road Transport Board‑Remaining absent for 15 days not continuously during period of 4 months‑Contention that he remained on rest ‑ No application for enjoying rest ever made and such request never refused‑Enjoying rest of own accord, in circumstances, held, no excuse for being absent‑Fifteen instances of absence, held, sufficient to constitute misconduct of habitual absence and dismissal from service, in circumstances, held, not exceptionable. Muhammad Zaman Qureshi for Appellant. Muhammad Iqbal Khokhar for Respondent. Date of hearing : 31st August, 1981. The facts of the case, giving rise to this appeal are that the appellant was dismissed from service on account of habitual absence of 15 days, According to the respondent, the appellant remained absent from 18th February, 1979 to 20th February, 1979, 15th March, 1979 to 16th March, 1979, 10th April, 1979 to 14th April, 1979, 19th April, 1979 to 23rd April, 1979, 26th April, 1979 to 27th April, 1979 and on 13th May, 1979. The appellant contends that he was not absent, rather he remained on rest. It has been argued on behalf of the respondent that rest can be given on application and since no application was given by the appellant, he could not of his own accord enjoy rest. The case of the appellant is that it was not necessary to give application. Exh. R. ‑ 4 is a chart attached to the enquiry file and it gives description of the dates on which the appellant remained absent and enjoyed rest. The learned counsel for the respondent on the strength of this document has argued that this is wrong that the days on which the appellant remained absent, could be days of rest. According to Exh. R. 4, the appellant enjoyed rest for four days in the month of February, three days in the month of March and two days in the month of April, totaling 9 days, whereas the total period of rest from lath February, 1979 to 13th May, 1979 comes to 16 days. There is no provision in the Road Transport Workers' Ordinance, 1961 that if a worker does not enjoy rest of his own accord the un-enjoyed rest would accumulate. Subsection (3) of section 4 empowers the Government to make rules under section 10, granting exceptions from the provisions of subsections (1) and (2) to meet cases of emergency or of delay by reason of circumstances, which could not be foreseen. Subsection (4) provides that where as a result of the making of a rule exempting any worker from the provisions of sub section (2), a worker is deprived of any of the weekly hours rest, for which provision is made in the subsection, he shall be allowed, as soon as circumstances permit, compensating hours of rest of equal number so lost. Provisions of subsections (3) and (4) do not apply to this case, because here the appellant of his own accord did not claim rest. He ha admitted in cross‑examination that for the enjoyment of rest applications are made. He has not shown that he had claimed rest by making an application, and that it was disallowed. So, the rest to which he was entitled, but did not enjoy, was lost to him and no question of accumula tion arises. So there is no force in the argument of the learned counsel that 18 days rest was to the credit of the appellant from the months of February to May during which he was found to be absent for 15 days un-continuously. The fact that the appellant remained absent for 15 days as shown in the chart and the attendance register stands amply proved by the above‑mentioned documents and other evidence on the record. Rather this is an admitted fact because this is not the case of the appellant that he did absent himself. His case was that he remained at rest which was due to him and he had not enjoyed. Fifteen instances of absence are sufficient to show the habit of remaining absent. So, he was rightly proceeded against and dismissed. There is no force in the appeal the same is, therefore, dismissed. A. E. Appeal dismissed‑