1986 PLP 352 (PLC)

A.A. Shareef for Respondents. Date of hearing: 31st October, 1985. ABDUL QADEER CHAUDHRY, J.--The petitioner was employed in the respondent No.1 Company as a strip packer. He was dismissed from service with effect from 31-10-1978 on the charge of unauthorised remaining absent from his duties without leave with effect from 21-5-1978. The petitioner after giving grievance notice challenged his dismissal before the Labour Court.

2. It was the case of the petitioner before the Labour Court that his dismissal order was passed in consequence of his union activities. He went on leave from 18-6-1978 to his native place in Peshawar District where he seriously fell ill and accordingly he got his leave extended with effect from 6-8-1978 and thereafter sent a subsequent application dated 10-9-1978 for extension of leave from 10-9-1978 to 24-9-1979 supported by medical certificate but he was charge-sheeted by the respondent No.l and ultimately dismissed from service after a domestic enquiry, which was neither fair nor impartial. The respondent-Company on the other hand stated that- the petitioner had only a week's leave to his credit but he was granted 49 days leave with effect from 18-6-1978 and his leave was further extended upon the application, dated 5-8-1978 up to 20-8-1978 but since the petitioner failed to report for duty upon the expiry of the extended leave he was charge-sheeted and on the basis of the domestic enquiry he was dismissed from service.

3. The Labour Court came to the conclusion that the - petitioner was unauthorisedly absent from duty and domestic enquiry was fair and impartial. The contention of the petitioner that the order of dismissal had been issued with prejudicial mind by the employer was repelled.

4. The petitioner being aggrieved filed an appeal against the order of Labour Court before the Labour Appellate Tribunal. The same contentions were raised before the Appellate Tribunal and were repelled. It was held by the learned Appellate Tribunal that the enquiry was conducted by an impartial person. AS regards the contention of the petitioner that the order of dismissal was not passed by the employer of the petitioner it was replied on the ground that the same was neither raised in the grievance notice nor in the, grievance petition.'

5. Section 25-A of the Industrial Relations Ordinance makes it,: incumbent upon the worker to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing but this has not been done in the instant case. Even otherwise this contention has been repelled by the respondent and it has been stated that Dr. Salim Habib Was the Managing Director of the respondent company and occupier of the factory of the respondent. Mr. Tariq Amin is also a Director and Mr. Murad Is Production Director. Both Mr. Murad and Mr. Tariq Amin have been taking disciplinary actions and issuing dismissal letters and the evidence has been led that Mr. Tariq Amin had been issuing appointment and termination letters including dismissal letters to the workers even prior to March, 1978. Apart from the fact that this objection was not taken before the Labour Court and no grievance notice was served upon the employer there is material on record to rebut the contention of the petitioner that the dismissal order was not passed by the employer. The Labour Appellate Tribunal has considered the arguments of the petitioner on his score and repelled the contention.

6. Learned counsel for the petitioner has failed to point out any illegality on this point made by the Labour Appellate Tribunal. It has been observed that issue whether the dismissal order was not signed by the employer is a mixed question of law and fact depending upon 1 the evidence recorded in the case. Reliance has been placed on a decision of Indian Supreme Court that where the employer is a company it can delegate its power to an officer of the company and such officer can validly exercised the powers delegated-to him.

7. Learned counsel for the petitioner has next contended that failure on the part of the worker to resume duty is not misconduct According to section 15 (2) (e) of the West Pakistan (Standing Orders). Ordinance, 1968 habitual absence without leave or absence without leave for more than 10 days shall be treated as misconduct. In the present case the petitioner was absent from duty for 35 days, therefore, the allegation of misconduct had been established against him. Learned counsel for the petitioner has submitted that his absence was beyond his control because he fell ill and, therefore, could not report for duty. This contention is equally without substance. Before the Labour Court it was contended that he was bed-ridden on account of illness and he was rendered incapable to perform journey for the purposes of proceeding to Karachi to resume his duty but he used to travel about 40 miles to Peshawar to get the medical certificate, therefore, this fact belies the contention of the petitioner that he was bed-ridden. Enquiry was conducted by the Enquiry Officer and he was found guilty of the charge of misconduct. The Labour Court respondent No.2 in exercise of his jurisdiction came to the conclusion that the petitioner was guilty of misconduct. The Labour Appellate Tribunal also came to the same conclusion. The findings of the Tribunals below are based on material produced before them. There is also finding of domestic enquiry and this finding of fact and law has been confirmed by the Labour Court and the Labour Appellate Tribunal. In the Constitution Petition disputed question of fact cannot be raised. The Supreme Court in P L D 1974 S C 139 has held that a Tribunal having jurisdiction may decide it rightly or wrongly. The Tribunals below have adverted to the facts placed before them and they have come to a definite finding which is neither perverse nor based on no evidence.

8. Learned counsel for the petitioner has preferred to Constitutional Petition No. D-47 of 1983 in support of his contention that if a worker is absent from duty due to illness which is beyond his control then the charge of misconduct is not established. The case cited by the petitioner does not apply to the facts of the present case. In that case there were concurrent findings of facts by the two Tribunals that the petitioner was not guilty of misconduct. He had produced the medical certificate which was accepted by the employer but only a demand was made from him that he should report to the doctor of the company. The facts are distinguishable and do not apply to this case

9. For all the aforesaid reasons we see no force in this petition The same stands dismissed without any order as to costs. A.A. Petition dismissed