1982 PLP 591 (PLC(CS))

Ali Ahmed for Appellant. Date of hearing: 16th July, 1981. The appellant, who was employed as a cone winder in a permanent capacity in the respondent mills, was dismissed from service with effect from 25th January, 1981 on the charge of having unauthorisedly remain ed absent without permission from 5th December, 1980 upto 15th De cember, 1980. The dismissal orders were passed on the report of the Enquiry Officer in the domestic enquiry ordered by the management, in which the appellant was held to have been guilty of misconduct in remaining absent without permission for a period exceeding ten days. The appellant challenged the orders of his dismissal before the I11rd Labour Court which has dismissed his grievance petition and repelled his contention that he was gate‑stopped on 7th December, 1980. The appel lant has now come up in appeal before this Tribunal.

2. It was contended by Mr. Ali Ahmed, the learned counsel for the appellant, that the appellant in fact had come to the factory on 7th December, 1980 and wanted to perform his duties but he was not allowed to enter the factory and was sent back. In support of his contention the learned counsel sought to rely upon the endorsement made on the attendance and pay card of the appellant which was produced by the latter before the learned Labour Court. The said endorsement reads:‑‑ It was asserted by the appellant in his evidence before the learned Labour Court that on the said date he had gone to attend the respondent mills but was sent back by the time‑keeper who endorsed the word on his attendance card. The respondent, however, strongly denied this suggestion. At the request of the Advocate of the appellant the time keeper Ali Nafas Khan, who is said to have endorsed the word on the attendance card of the appellant, was examined by the learned Labour Court. He, however, strongly denied that the said endorsement was made by him and suggested that it was either made by the appellant himself or some other unauthorised person. There is, thus, no support to the contention of the appellant that he was stopped at the gate by the time‑keeper on 7th December, 1980. In consequence, the learned Labour Court rightly accepted the testimony led on behalf of the management at the domestic enquiry and before it that the appellant had unautho risedly remained absent from 5th December, 1980 upto 15th December, 1980.

3. It was next contended by Mr. Ali Ahmed that the domestic enquiry conducted against the appellant was ex parte and no opportunity was given to the appellant to defend himself. This issue was also raised before the learned Labour Court, which repelled the same. I find that number of envelopes, containing the charge‑sheet, were sent to the appellant, by registered post, both at his Karachi address as well as his permanent address as given in his original application for appoint ment. If these letters did not reach the appellant it means that either he had given an incorrect address to the management at the time of his appointment or he had shifted from the said place. In any case the appellant has to thank himself if the communications containing the charge‑sheet did not reach him and cannot be heard to complain on that account. It has been observed by the Supreme Court in the case of Dawood Cotton Mills Ltd. v. Guftar Shah and another (P L D 1981 S C 225) that:‑ "where the person against whom action is proposed to be taken by his own negligence impedes the actual service of notice, he cannot thereafter, be heard to say that he was not actually served and for that matter to challenge the decision taken in his absence".

4. As regards the non‑participation of the appellant in the domestic enquiry against him it may be mentioned that the appellant has admitted the receipt of the management's letter, dated 5th January, 1981. In that letter it was clearly mentioned that the enquiry against the appellant would be held on 8th January, 1981, at 11.00 a. m. It is an admitted position that the enquiry against the appellant was in fact held on the said date. If the appellant failed to participate in the enquiry in spite of intimation he has himself alone to blame.

5. As the misconduct of the appellant was fully established in a domestic enquiry conducted against the appellant of which he had due notice, the failure of the appellant to participate in the enquiry does not vitiate the enquiry and on the contrary suggests that the appellant did, A not even have the courage to face the enquiry. I accordingly find no merit in this appeal and would, therefore, dismiss the same in limini.