1984 PLP 1064 (PLC(CS))

(b) Industrial dispute- -- Absence of single day-Does not amount to misconduct Habitual absence-Needs proof of series of instances. Ch. Altaf Hussain for Appellant. Agha Asif Jaffery for Respondent. Date of hearing: 19th December, 1982. In this appeal, a decision, dated 15th of April, 1979 passed by the learned Presiding Officer, Labour Court No. 9, Multan has been challenged whereby the grievance petition of the respondent was accepted and she was ordered to be re-instated with back benefits. The respondent was a Lady Instructor in the Municipal Industrial School, Kabirwala appointed on 3rd of September, 1972. On 12th of January, 1977 the Chief Officer of the Municipal Committee made a surprise visit of the school and found that the respondent was absent from duty without petting any leave. The respondent was charge-sheeted on 18th of September, 1977 to the effect that she was absent without leave on 12th of January, 1977 and even otherwise was in the habit of remaining absent and was not attending to her duties. It was mentioned that she was inefficient and guilty of misconduct. The allegations made against the respondent in the charge-sheet do not amount to misconduct according to Order 15 (3) of the Standing Orders Ordinance, 1968, therefore, the order of termination was not legal. The learned counsel for the appellant has argued that the Standing Orders Ordinance is not applicable and that the respondent was governed by departmental rules. Standing Orders Ordinance may not be applicable on two grounds but none of them was taken by the appellant in the written statement nor there is any evidence on the record. According to section 1 (4)(a) the Ordinance is not applicable to the industrial A or commercial establishment when the workmen employed are less than 20. .Proviso to the above-mentioned section states that the Ordinance would not apply to the industrial or commercial establishments which are being carried on by or under the authority of Federal or Provincial Government having statutory rules of service, conduct or discipline. No such pleas were taken in written statement. No doubt, Municipal Committees are being run by the Provincial Government but it has not been shown by the learned counsel for the appellant, that the rules of the committee are statutory. The rules are statutory if they have been framed under the provision of some enactment and have been published in the official Gazette. It is provided in the rules that they would come into force from the date notified in the official Gazette. Production of two notifications was, therefore necessary; firstly to show that the rules had been duly notified another notification to show the date on which they had become applicable. If notifications have not been issued neither the rules would be statutory nor were enforced. There is no evidence that the number of workmen employed in the appellant establishment is less than 20. 1t, therefore, has not been proved that the Standing Orders B Ordinance is not applicable. Even if it is assumed that Standing Orders Ordinance, 1968 is not applicable, the allegations made against the respondent do not amount to misconduct because absence of a single day has not been shown to amounting to misconduct under departmental rules. It is no doubt mentioned in charge-sheet that even otherwise the respondent was in habit of remaining absent but no cogent evidence was produced to show that on some specific dates, she was absent without leave. Series of instances are required to show that habit of remaining absent has developed. The learned counsel has also argued that since in the service conditions, it was provided that the respondent would be terminated when some qualified Lady Instructor was available her services were rightly terminated. Firstly, there is no evidence that any other Lady Instructor of the required qualification had become available and no reason. (sic). The services of the respondent was terminated and secondly it is not provided in the rules that what kind of qualification was required. In the rules, a particular diploma had been mentioned, the respondent may have during the tenure of her service obtained that qualification. The respondent has in reality a diploma of a private school. There is no provision in the rules that diploma should be said (sic) that the respondent is not qualified according to the requirement of the rules. The respondent, therefore, was rightly directed to be re-instated in service by the learned lower Court with back benefits. As a result of the observations made above I do not find any force in the appeal and dismiss it. A. E. Appeal dismissed.