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Appeal ‑No. KAR‑149 of 1968, heard on 12th February 1969.

----S. 30 read with industrial and Commercial Employment (Standing Orders) Ordinance (III of 1960), S. O. 8(3)‑Absence, beyond period of leave, for more than 8 days‑Worker loses his lien on his appointment‑Discharge or dismissal, to circumstances, held, no violation of S. 30.

Where a workman lost his lien to the post because of his absence without leave for more than 8 days, the provisions of section 30 of the Industrial Disputes Ordinance, 059, were not attracted. The employer cannot be said to have discharged or dismissed or otherwise punished the workman within the meaning of section 30 of the Ordinance. His lien was lost not because of any act on the part of the employer, but because of the operation of law in terms of Standing Order 8(3), Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. 1t cannot also be said that the employer has altered the condi tion of service. The Standing Orders confer certain rights and obligations on the workman. These become part of condition of his service. The employer, therefore, cannot be said to have altered the condition of his service. He only enforced the condition of service that if the workman overstays his leave for more than eight days, he loses his lien.

Gul Rais Khan v. D. M. Fawkner and others 1960 P L C 1195; Fazal Din v. Mehar Textile Mills Ltd., Tando Yousuf 1963 P L C 1080 and Muhammad Yameen v. United Textile Mills Ltd., Multan 1963 P L C 178 rel.

---Ss. 30 and 31 read with Industrial and Commercial Employment (Standing Orders) Ordinance (III of 1960), S. Os. 8(3), 13(2) & 13(3)(a)‑Absence for more than 8 days beyond leave granted ---Not misconduct in terms of S. O. 13(3)(a)‑‑Failure to hold enquiry in circumstances, held, does not amount. to violation of S. 30 ‑ Opportunity of explanation though advisable yet failure on the part of employer to ask such absentee worker to explain his overstay, does not attract provisions of S. 31.

Masood Mirza for Appellants.

A. Majeed for Respondent No. 1.

Date of hearing: 12th February 1969.

This is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968, against an order of the learned Chairman, Second West Pakistan Industrial Court, Karachi, dated 19th October 1968. The impugned order eras passed on an application under section 31 of the Industrial Disputes Ordinance, 1959 (hereinafter called the repealed Ordinance). The facts briefly put are these.

2. The respondent, Abdul Rehman, was an employee of the appellants' Company. He proceeded on leave, according to the appellants, for a month with effect from 15th August 1967, and according to the respondent for two months' leave with effect from 16th August 1967. The respondent reported for duty on 25th October 1967. The Chowkidar of the Fac tory, however, did not permit him to enter the factory.

3. Abdul Rehman made an application on 30th October 1967, before the Industrial Court. He stated therein that he was the Vice‑President of the Employees' Union and that an Industrial Dispute No. 44/66, was pending in the First West Pakistan Industrial Court,. Karachi, at the time when the Management refused to let hire enter the factory premises. The application under section 31 of the repealed Ordinance, is vague. It was presented personally by Abdul Rehman before the Industrial Court. The substance of the application is that there was violation of the provisions of section 30 of the repealed Ordinance inasmuch as his services had been done away with or without the permission of the Industrial Court.

4.The learned Chairman of the Industrial Court ordered that the appellant be re‑instated "with all back benefits".

5. Mr. Masood Mirza, the learned Representative for the appellant, contended that there was no violation of section 30 of the repealed Ordinance, inasmuch as Abdul Rehman lost his lien on his appointment by operation of law and not because he was discharged or dismissed from service within the meaning of section 30 of the repealed Ordinance. There is much force in this contention. Abdul Rehman admitted in his examination‑in‑chief before the Industrial Court drat he had proceeded on two months' leave on 16th August ‑1967. In his application under section 31 of the repealed Ordinance, the respondent in para.5, admitted that he reported for duty art 24th October 1967 (afternoon) and hereafter on 25th October 1967. On the facts admitted by the respondent (Exh. A. W. 1/2), it would appear that he reported for duty after the expiry of his leave by ten days. Order 8 (3) of the Standing Orders to the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, reads as under:‑

"If the workman remains absent beyond the period of leave' originally granted or subsequently extended, he shall lose his lien on his appointment unless he (a) returns within 8 days of the expiry of the leave and (b) explains to the satisfaction of the manager his inability to return before the expiry of his leave. In case the workman loses his lien on his appointment he shall be entitled ‑ to be kept on the 'badli' list." '

6. It would, therefore, appear that the respondent lost his lien to his appointment because he remained absent for move than 8 days.

7. Mr. Mirza, the learned Representative for the appel lants relied on three decisions of the Industrial Courts, namely, Gul Rais Khan v. D. M. Fawkner and others (1), Fazal Dhi v. Mehar Textile Mills Llmlied Tando Yousaf (2) and Muhatnmrtd Yameen v. United Taxtile Mills Limlied, Multan (3), in support of his

(1) 1960 P L C 1195 (2) 1963 P L C 1080

(3) 1963 P L C 178

contention that where a workman lost his lien to the post because of his absence without leave for more than 8 days, the provisions of section 30 of the repealed Ordinance were not attracted. It was observed in these cases that the employer couldn t be said to have discharged or dismissed or otherwise punished the workman within the meaning of section 30 of the repealed Ordinance. His lien was lost not because of any act on the part of the employer, but because of the operation of law. It cannot also be said that the employer has altered the condition of service. The Standing Orders confer certain rights and allegations on the workman. These become part of condition of his service. The employer, therefore, cannot be said to have altered the condition of his service. He only enforced the condition of service that if the workman overstays his leave for more than eight days, he loses his lien. I would hold that the provision of section 30 of the repealed Ordinance was not violated.

8. Mr. A. Majeed, the learned Representative for the respondent, contended that where a workman overstays his leave beyond 8 days, the employer would be bound under the Standing Orders as well as on the principle of natural justice to treat it as an act of misconduct and hold regular proceedings either for termination of services or for dismissal. In this connection, it would be useful to reproduce Order 13(2) of the Standing Orders. It runs as under ‑

"A workman may be suspended for a period not exceeding four days at a time or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct."

9. Order 13(3) (e), reads as under :‑

"The following acts and omissions shall be treated as misconduct :‑

(a)

(b)

(c)

(d)

(e) habitual absence without leave or absence without leave for more than 10 days,

10. It would appear that absence for more than 10 days would amount to misconduct. In the present case, the respondent reported for duty on 25th October 1967. He would be without leave, therefore, for only 10 days and not "for morel than 10 days". He cannot be said to have committed misconduct. Even if the workman did commit misconduct, the failure on the part of the Employer to hold an enquiry would not amount to the violation of section 30 of the repealed Ordinance, so as to attract the provision of section 31 of the said Ordinance.

11: In the interest of Industrial peace and happy relation between the workman and employer I would observe that it is advisable to give an opportunity to the workman to explain where he overstays his leave and loses lien. This will serve two objects. The workman may be able to give satisfactory reasons for his overstay for more than 8 days and the employer may not enforce his right. It may also be that the workman may explain that he had not overstayed his leave for more than 8 days. The present case is different inasmuch as admittedly the respondent had overstayed his leave for more than eight days. The failure on the part of employer however, to ask the respondent to explain his overstay does not attract the provision of section 31 of the repealed Ordinance l At any rate, this failure cannot help the respondent as admit tedly he had overstayed his leave for more than 8 days.

12. Lastly, the learned Representative relied on the cross examination of Mr. Ahmad, the Manager of the appellants. Mr. Ahmad stated as under:

"The application that he gave for leave from 25‑8‑67 has been misplaced."

The suggestion of Mr. Majeed is that if the respondent went on leave for two months from 25th August 1967, he reported for duty before the expiry of leave. There is no force in this contention. The respondent in his examination‑in chief stated as under : ‑

"I had proceeded on two months' leave on 16th August 1967."

It was never the case of the respondent that he had proceeded on leave from 25th August 1967. He cannot be allowed to take advantage of some confusion on the part of the Manager. .

13. I would, for the reasons given above, allow the appeal and dismiss the application under section 31 of the repealed Ordinance.

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