1989 PLP 244 (PLC)

1. At the very outset, this position remains clarified that the applicant concerned is the permanent workman in the organization, by no denial of his status from the respondent Steel Mill.

2. The second point that will arise, whether the employer is within the jurisdiction of the Standing Orders Ordinance to proceed against the employee, on the ground of misconduct what is laid down in the Standing Orders Ordinance that is Standing Orders 15, where clause (e) of subsection (3) of Standing Order 15 relates to the acts and omission, what is to be treated as misconduct that he is either habitually absent without leave or absent without leave for more than ten days. Standing Order 15 also provides the reprimand or fine for the acts and omission what is prescribed under the Payment of Wages Act or in cases where there are acts and omissions, relate as to what are the disregards on the misconduct of lesser gravity prescribing punishment subsection (2) relates to the liability of the punishment, of tine or withholding of increment or reduction to lower post or dismissal. The misconduct of the lesser gravity is of the disregard of the rules and orders, in proper behaviour, making false statement, careless working and malingering. The misconducts which are treated are of various categories of which the habitual absence without leave or for more than ten days is one of the classification. In all these cases the liability of punishment is provided to the nature of the gravity in each case and for what the Labour Court finds to review the finding of domestic forum, whether the punishment awarded by the employer, was proportionate to the charge, in the context what the accused has given the justification, in each case, to show whether the dismissal order be made as absolute or to reduce its penalty, such as the legality of the question involved that the absence was intentional or unintentional or not wilful. Why the Court emphasizes that permanent workman has the protection under the Labour law, with all the privileges, he enjoys subject, to the jurisdiction also of the employer to freely exercise in context of Standing Order 12, that the services of permanent workman can be terminated, for any reason, other than misconduct The word for any reason, is also what the Labour Court understands is in the broader context, whether, it appeals to the Court of law that the termination was free from elements of bias or victimization or any motivation as to maintain the spirit of the Ordinance, which has protected, the terms and conditions, in sections 3 and 4 that the condition of the employment of workman and other incidental matters shall subject to other provisions of this Ordinance, be regulated in accordance with the Standing Orders. The expression incidental matters, obviously refers to those aspects which arise out of employment such as the privileges etc, This is what the Labour Court follows and understand in the context of this proviso.

3. Section 25‑A of the Industrial Relations Ordinance under which grievance, is redressed by the application of the terms and conditions, under the Standing Orders Ordinance of Workman, this also appears to be an exceptional proviso, suggesting, the statutory limitation that is to say that worker, to bring his grievance, to the notice of the employer is to serve the notice within three months of the day on which the cause of such grievance arises, and then follows the employer's liability, to communicate within fifteen days and in the case of Shop Steward the employer shall communicate decision to the worker in the manner as directed. If the worker wants to take away the matter to the Labour Court he shall do so, within period of two months from the date of the communication or as the case may be.

4. In other words, the grievance is to be brought within three months from the date when the cause arose. The word cause is very significant and is the question of comprehension, as to when is the starting point of limitation. Whether the grievance be understood in the context, when the employee was dismissed or when the grievance became final after exhausting the remedies to refer the matter to the Court of law for such redress. There are establishments where rules are framed with regard to the remedies to be availed before the matter taking to the Court of law. Likewise in the Industrial Establishment of the Steel Mill which is of the highest complex with the statutory rules preferring an appeal from the process.

5. In the present case, following are the dates of significant. Application is presented in the Court on 12‑7‑1987. Dismissal is shown on 17‑2‑1987. The date of appeal is 12‑3‑1987. The date of the rejection of appeal is 6‑5‑1987. The rectification is desired of the date of dismissal to be read in the last para of the letter as 17‑2‑1987 instead of 17‑11‑1986. The date of the rectification of the error, also coincide with the same date by the applicant aggrieved and therefore there is no inconsistency of the date of dismissal order of 17‑2‑1987. Regarding rectification for the purpose of clarification, the Court is to emphasize that before rectification is sought which is not disputed now, the rectification or the correction of the date in the manner it is desired, if it affects the limitation which may be favourable to the person, it will be highly unsafe to correct the errors of the draftsman, in the manner as section 152 of the Civil Procedure Code relates to the correction of the typing error in the order of the Court. Therefore, the distinction is to be drawn that the party has no such privilege, for any such presentation of the matter before the Court of law, he is to be conscious of the mistake, that by his correction, other party suffers, who may not reconcile with that error. The draftsman therefore is to be most careful in such presentation when it is expected that what matter he has filed before the Court, fulfil, all the legal requirements, for the redress, of the grievance, rather than to make such an allowance, for such corrections for otherwise to give uncertainty whether the correction of the error was genuine.

6. With this background, the Court comes to this conclusion, firstly on the question of law of limitation that if appeal is the part of statutory rules, the time limitation is to start from the orders of rejection as the ultimate final grievance to take the matter to the Court of law.

7. What has been contested by the counsel for the respondent that memo of appeal does not bear the signature of the applicant and the General Manager (A&P) was not the competent authority to entertain an appeal. The appeal was misconceived and not maintainable.

8. What the Court has observed that the intimation of the rejection of appeal dated 6‑5‑1987 is in clear perception that what has been considered by the A competent authority, it was given due consideration of rejection. The Court will not stretch the arguments that appeal was preferred, in the name of General Manager (A&P), he was not the competent authority to render the appeal in effective. With due respect to the view of the counsel of the respondent, that if appeal memo is preferred to the General Manager (A&P) obviously it was understood that matter was to be processed through competent authority as the procedural observance of such heavy organization. Such technicality can only lead to absurdity for, the responsibility of the employee is not so greater to merely render his memo of appeal in effective because it was not addressed to the competent authority by name as long as competent authority has not considered through proper presentation. The word competent authority used in the letter of 6‑5‑1987 is obvious supposition that matter was challenged through proper section. The intimation by the General Manager (A&P) carried the full responsibility that the matter was placed before competent authority otherwise; he had no authority to use the word competent authority in the letter. The objection, therefore, of the respondent Steel Mill, has no legal force simply based on the technicality of which the workman has a lesser responsibility than the responsible functionary who was to present his appeal before proper authority, which has been done.

9. The second aspect is of the misconduct, and the possible effect of the ex parte proceedings.

10. The Court has the benefit of going through the file of the Enquiry Officer and the evidence examined before the Labour Court in the context. The conclusion that is arrived by Enquiry Officer, on the basis of the statement of Mr. B Muhammad Anwar Deputy Manager and the requisite noting, by which, it was shown that the present applicant was absent from duty, the Enquiry Officer held him guilty of the misconduct. But during observation, he also looked, into the personal file, and found that his past background, in the sense of duty, is also not pleasant.

11. Mr. Bashir Awan has very strongly, taken note, of the past absence: that if the charge confined, to the show‑cause notice, any observation beyond will be C without jurisdiction of the Inquiry Officer, and also the complaint made by the subordinate officials was not produced, in the enquiry and therefore the enquiry proceedings failed to fulfil the requirements of fairness.

12. In the context of the observation of the Inquiry Officer, the Court has also looked into other documents before the Labour Court. Mr. Bashir Awan may be correct that any evidence beyond the charge cannot be the subject of the Enquiry Officer's conclusion regarding the guilt of misconduct. But there is also no bar on the observation of the Enquiry Officer to freely express his logical conclusion, if by casual incidence desired to see the personal file of the applicant, as for as to satisfy the judicial ambitions. It may not be the finding for the purpose of holding him guilty of that misconduct but appreciation of the absence was certainly, the province, of the Enquiry Officer to examine the problem in the context of the reality of the situation, which what the Labour Court feels is the,, logical approach of every problem to achieve its finality.

13. Likewise much can be said, that complaint is the basis of the opening of the enquiry proceedings for the party to know what is the face sheet of the charge. But it depends, before the domestic forum in a particular industry or any E commercial establishment, what nature of charge he faces, whether it reflects of the personal integrity of misconduct or of the lapse of duty, of which the Department has the privilege to produce the file of absence shown in the notice of show cause, by examining the higher official concerned through which the processing was done and no prejudice to be conceived which was matter of record rather than personal allegation.

14. The Court has examined the evidence, seen the documentary nature of the evidence, the correspondence features.

15. Throughout his own averments, this fact remains confirmed that tire applicant was absent from duty after 16‑11‑1986 which was not legally sanctioned. But for the period of absence, what the present applicant has shown that he was handicapped due to illness of his father and sent also application on humanitarian consideration. What is humanitarian consideration, of course first, is to be examined, in the context of the law, whether he deserved the leave. Of course the leave is the privilege of the employee, under the Factories Act, as in the case of Steel Mill. What are those leaves recognized by law namely annual holidays, casual leaves and sick leaves and festival holidays. This is to be noted that these privileges are for workman. The law further has allowed the leave by explanation in standing Order 8 to which there is applicability, the same holidays and the leave provided under factories Act and other holidays in accordance with the law, contract, custom, and usage. Sub‑standing order (2) further provides the procedure, that workman who obtains the leave shall apply and the employer will issue the orders within a week or two days, prior to the commencement of leave and the order shall be given on same day. If leave is refused the refusal, and the reasons, shall be recorded, in writing in a register. If workman desires extension, the employer is to intimate, of refusal or acceptance.

16. In the first place, the applicant concerned, for the Court's observance, was fully informed, what was happening during his absence, and therefore, the ignorance of the knowledge of any such activity, concerning his absence of leave, could not be made as a defence for, the reply to the show‑cause notice, in which, he has drawn the attention of application, for extension, is a clear proof that the Department was not under obligation, to send him written intimation every time, as often the workman show the delivery of correspondence undelivered, and taking the defence that no such and such letter was delivered of enquiry or otherwise. During the course of the experience, in judicial matters of the labour cases, the Court often takes the notice that the employees adopt the technicalities of the non‑service of letters even by registrations, in the event of remarks of postal authority that the addressee was not present. It is in that context in the I judicial experience, the Court has made particular reference that if the applicant himself was fully aware of the notice of show cause, he must be aware of every activity. To shorten this, the letter of 23‑8‑1986 by the Department was in the nature of caution that his 90 days leave granted, in the first place from 18‑9‑1986 to 5‑11‑1986 or 11 days leave without pay from 6‑11‑1980 to 16‑11‑1986, no further earned leave was due and no extension of leave, could be granted. In other words, the leave was not due, of earned nature. But if the sick leave was asked on 12th November, 1986 (Annexure‑A/1) and on 5‑2‑1987 another application follows that he was not well himself, it will be seen that after 16‑11‑1986 the first ground, he had of his father's illness, and in second application; he asked for leave of his illness. On 10‑8‑1986 there is another letter, where he applied4or leave on the ground of residence construction of 23 days. It is not clear from what period. But what is understood for the purpose of justifying the leave after 16‑11‑1986 the extension was refused as no leave stood in his account of earned leave.

17. So far as the leave is concerned, under the provisions of Standing orders, even if the applicant wanted sick leave, the law contemplates this privilege on13 or the workman. If he has applied for sick leave, it is only on 2‑4‑1987. In other words, there is no other leave on the ground of the illness of father except from he earned leave what was permissible by law or unless the rules provided or that the rules of Steel Mill provided such contingency in the case of a member of the family. Legally speaking, therefore, the applicant may have the genuine difficulty of remaining absent to attend to father, which is supposed to be the most important obligation for any decent son, in the human life to be of service to a father, without, whom the life becomes meaningless." But the law has made the limitations only in the case of workman, what the Court of law understands from the Standing Orders and the Factories Act. Rightly the applicant, has used the word on humanitarian consideration, and his noble virtue can best be measured from his own application of 12th November, 1986 that he was fully conscious of the sense of duty which he has reflected by his expressions in the application that how much ire has felt for the Steel Mill and its importance of duty.

18. With this background, what the Enquiry Officer discharged his functions by giving the finding on his absence, there was correct approach and remarkably honest observation, as part of his duty to speak truth. But regarding the penalty to be awarded of dismissal whether there was justification by the management, let it be pointed to the management that what the Labour Court has seen the evidence of the respondent through Mr. Muhammad Anwar Ansari, there are certain procedural non‑compliance of the leave registers as contemplated by sub- standing Order (2). Although it appears to the Court that the non‑maintenance of the register may not react on the enquiry as an illegality, but it is irregularity, of which the applicant is entitled to the benefits, though reasons of rejection was intimated. Clause (e) of Standing Order 15 also speaks that if the employee has remained absent for more than ten days the act, and omission, is treated as I misconduct left to any of the punishment provided in sub‑standing Order (2) of Standing Order

15. Looking to the gravity of the charge whether the absence was intentional or unintentional or wilful. If the applicant was handicapped, because of his father's illness, which he had genuinely stated on oath, by supporting the application of the ground, mentioned, and he has not examined his father, still it is left to his conscience, that what he has spoken is true, regarding father, the Court after holding him guilty of misconduct, fully supporting the Enquiry Officer set aside the order of dismissal, by withholding increment for one year, in view of every possible conclusion he would have drawn that sick leave according to law could only be availed by him. But his case is brought within the concept of the circumstances examined that his absence may not be intentional, particularly the Court is impressed that he was conscious of his duty which mentally and intellectually, he has taken the spirit.

19. Regarding ex parte proceedings it may be mentioned, generally, the Court is always of the view that the decision must be on merits. But at the same time, if the requirements of the enquiry are observed and the employee is fully aware, he cannot be change the course of law taking the protection of technicalities, for otherwise will he no cod of the problem, unless the action was mala fide and based on victimization.

20. Regarding competent authority every head of the complex by the virtue of delegation of powers is the appointing authority, and therefore, there was no defect till the dismissal. But for the reasons the Labour Court has reviewed about the penalty. The order of dismissal will be harsh in this respect and accordingly increment is withheld, which can compensate the employer, for the lapse of duty. However, noble, he may have thought, to look after father who is the important asset for him. But duty with the sense of perception is the highest attribute in every activity of human life. Previously also in number of matters of such nature the Court has taken the view of intentional and non‑intentional absence. But it must be pointed that no employee should take in the sense (what the Labour Court feels) that every employee in the industrial establishment can take such protection. Every case has its peculiarities and is examined in that percept. This is informative to them, as the observations of the Court of law that their sense of duty contributes to the economic prosperity for which they also share to their limitations.

21. Application is allowed with the modification of the order by directing that increment will be withheld for one year. Reference is made to 1980 P L C 519; 1986 S C M R 1864; P L D 1973 Pesh. 95 and 1984 C L C

259. M.Y.H./1192/LbS Petition allowed.