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Appeal No. KAR‑541 of 1980, heard on 21st August, 1980.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑S. O. 15 (3) (e)‑Misconduct‑Workman not attending to his site of duty marking presence in attendance but remaining away whole time‑Not performed any work despite warnings‑Held, rightly charged for misconduct of habitual neglect of work and remaining absent from duty.

P. I. A. v. Junior Labour Court No. IV P L D 1978 S C 239 distinguished.

‑‑Domestic enquiry‑Statement of witness recorded in absence of accused‑‑Accused when appearing informed and statement read over to him and asked to cross‑examine witness but stating that he did not want to cross‑examine ‑ Nothing objectionable, held, occurred.

S. M. Kohistani for Appellant.

Date of hearing : 21st August 1980.

The appellant, who was employed as a Junior Clerk in the respondent Construction Company, was dismissed from service with effect from 27th June, 1978 on the basis of a domestic enquiry in which charge of habitual neglect of work and leaving his work unattended after marking his presence in the muster roll is said to have been established. The appellant challenged his dismissal orders before the learned Labour Court. His main contention was that the Management was backing a pocket Union of workmen and consequently the workers formed another Union namely A.C.L. Mehnatkash Union' to safeguard their interests. This Union, according to the appellant, subsequently became the C.B.A. in the respondent‑Company and he was one of its office‑bearers. The appellant contends that the respondent establishment was highly opposed to this Union and consequently not only removed a number of its office‑bearers but also tried to pressurize him to resign from the Union and since he refused to do so a baseless charge was concocted and he has been victimized on account of his Trade Union activities. It was further alleged by the appellant in his grievance petition that the enquiry against him was one‑sided. The learned Labour Court repelled the contentions of the appellant holding that the enquiry against the appellant was fair and impartial and that the misconduct of the appellant had been fully established and accordingly, it dismissed the appellant's grievance petition. The appellant has now come up in appeal against that decision of sic.

2. The first contention on which Mr. Kohistani, the learned Representative of the appellant, assailed the impugned decision of the learned Labour Court was that the charge against the appellant does net disclose an act of misconduct falling under clause (3) of Standing Order 15. This contention is wholly misconceived. The charge‑sheet, which reads as follows, contains the specific allegation of habitual neglect of work and absence from duty without permission falling under sub‑Clause (e) of clause (3) of Standing Order 15:

Charge‑Sheet

It is reported that since 15th June, 1979 you have not been attending to your duty at site, and while you sign the Attendance Register daily in the morning at the Main Office, but you are hardly if ever, seen at the place of your posting at site, and since the date herein above‑mentioned have not performed any work in spite of warnings; wherefore you are hereby charged of misconduct under sub- clauses (e) and (i) of clause (3) of S. O. 15 of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and called upon to submit your reply in writing within 48 hours of receipt hereof directly to Consultant Industrial Relation who is being appointed the Enquiry Officer to enquire into this matter, and you are further directed to appear before the Enquiry Officer and participate in the Enquiry, which is fixed to be held at ACL Main Office at Pipri on 28th July; 1979 at 10‑30 a.m., failing which the Enquiry Officer shall proceed with the Enquiry ex parte.

for "ASSOCIATED CONSTRUCTION LIMITED."

3. Mr. Kohistani sought to argue that the case of the appellant fell within the scope of the ruling given by their Lordships of the Supreme Court in the case of P.I.A. v. Junior Labour Court No. IV (P L D 1978 S C 239). The facts of that case are wholly different from those of the present case. In that case it was held that failure of an air‑hostess to seek permission to leave place of duty, did not constitute misconduct falling under Standing Order 15 (3) (a) (h) but was covered by Standing Order 15 (1) (ii) (a). In the instant case, as already pointed out, the charge against the appellant is of habitual neglect of work and remaining absent from duty.

4. It was next contended by Mr. Kohistani that the Management, at the time of issuing the charge‑sheet, had made up its mind to dismiss the appellant and the subsequent enquiry proceedings were a mere sham. This plea is grounded on the fact that by the charge‑sheet itself an Enquiry Officer was appointed and even the date for the holding of the enquiry was fixed, without waiting for the reply of the appellant to the charge -sheet much less considering his reply. This contention overlooks the practice in the respondent‑Company whereby first a 'Jawab‑Talbi' in Urdu containing the allegations against the workman is issued to the workman and if the explanation to the 'Jawab‑Talbi' is found unsatisfactory a formal charge‑sheet is issued. The said practice was followed in the instant case and consequently a formal charge‑sheet was served upon the appellant. The Management already had the explanation of the appellant and found the same' to be unsatisfactory.

5. It was next contended by Mr. Kohistani that the enquiry proceedings stand vitiated as the statement of the appellant was recorded before the statements of the witnesses were taken. Mr. Kohistani was unable to show how this has prejudiced the case of the appellant. Furthermore, this plea is being raised for the first time before this Tribunal and was neither taken in the appellant's grievance notice or grievance petition nor raised before the learned Labour Court. I, therefore, see no reason to allow the taking of this plea. In any case it has no force.

6. It was finally contended by Mr. Kohistani that the statements of some witnesses were recorded in the domestic enquiry during the absence of the appellant. According to Mr. Kohistani the witnesses whose statements were so recorded are F. R. Khan and Mohammad Abdul Mussadiq. A perusal of the enquiry proceedings show that the signatures of the appellant appear at the bottom of both statements and consequently a presumption would arise that the statements were recorded in his presence. However, it has been admitted by Mr. Syed Fuzail Ahmed, the Enquiry Officer, that the statement of Mohammad Abdul Mussadiq was recorded in the absence of the appellant because he failed to turn up in time. He has further explained that after the appellant turned up, he read the statement of the witness to him but he stated that he did no want to cross‑examine the witness. In view of this Explanation I see noth ing seriously wrong in the procedure adopted by the Enquiry Officer.

7. For the reasons stated by me above I find no merit in this appeal and would, therefore, dismiss the same.

Appeal dismissed.

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