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Appeal al No. KAR-26 of 1983; heard on 27th March, 1983

---- Ss- 25-A & 37 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (.VI of .1968), S. O. 15-Dismissal on account of misconduct-Accused charged for (1) being absent without leave for period exceeding 10 days, (2) habitual absentee and (3) non-compliance of orders of superior Enquiry Officer coming to findings that all charges established Labour Court not finding charges of habitual absence established and dismissing grievance petition for reasons that remaining two charges stood established-Possibility existing that employer might not have imposed penalty of dismissal bad he known that third charge had not been established findings of enquiry that third charge had not been established likely to have influenced decision of employer in passing dismissal Order-Impugned dismissal order: in circumstances, set aside by Appellate Tribunal-Employer given option to take action at his discretion on basis of two charges estab lished against accused workman-Back benefits, in circumstances, refused.

Chan Pir Shah v. Congothene Chemical Industries Limited 1981 P L C 984 ; Sher Muhammad v. Bashir Ali Khan P L D 1962 Lab. 172 ; Builders Associates Ltd. v. Talib Hussain Chohan 1980 P L C 628 and Islamabad Club v. Punjab Labour Court No. 11 P L D 1980 S C 307 rel.

Ch. Rashid Ahmad for Appellant.

Kamal Ahmed for Respondent.

Date of hearing : 27tb March, 1983.

DECISION

The appellant, who was employed as Tower Crane Operator in the respondent Corporation, was dismissed from service, vide order, dated 29th March, 1982, on the basis of committing three separate and distinct acts of misconduct, namely, (I) being absent without leave for a period exceeding ten days with effect from 19th October, 1981, (2) habitual absenteeism, and (3) non-compliance of the orders of his superiors refer ring him to the Corporations Medical Officer, Dr. M. S. Qureshi, for medical checkup. The domestic enquiry in respect of the aforesaid three charges was ordered in .which Abdul Hameed Khan, Assistant Manager (Administration), gave evidence on all the three charges against the appel lant while the appellant examined himself in his defence. The Enquiry Officer, Fazle Rab, in his enquiry report, dated 8th March, 1982, came to the conclusion on the basis of the evidence before him that all the three charges had been established against the. appellant. The second show. cause notice was thereupon issued to the appellant and as his answer there to was not found satisfactory he was dismissed from service. The appel lant challenged the orders of his dismissal before the learned Fourth Labour Court, which has come to the conclusion that one of the charges against the appellant, namely, charge of habitual absenteeism has not been established but the other two charges have been duly established against him. On his finding the learned Labour Court has dismissed the appel lant's grievance petition vide. its decision, dated 19th December, 1982. The appellant has been came up in appeal to this Tribunal.

2. It has been held by this Tribunal in the case of Pakistan Steel Mills Corporation Limited v. Mujahid Ghouse, decided on 3rd November, 1981, relying on the decisions reported as Chan Pir Shah v. Congothene Chemical Industries Limited (1981 P L C 984), Sher Muhammad v. Bashir Ali Khan (P L D 1962 Lah.172) Builders Associates Ltd. v. Talib Hussain Chohan (1980 P L C 628) and Islamabad Club v. Punjab Labour Court No.II (P L D 1980 S C 307), that since one of the charges against the respondent, the charge of wasting of gas had not been established against him but nevertheless he had been dismissed on the footing that all the charges had been established against him, and as it was possible that the employer either may not have dismissed the respondent if he had known that the third charge against him had not been established or alternatively the finding of the Enquiry Officer that the third charge had been estab lished against him was likely to have influenced the decision of the employer in directing the dismissal of the respondent. the dismissal orders were set aside but no back benefits were granted to the respondent. Relying on the above decision, I would set aside the orders of dismissal .of the appellant, but would give an option to the employer to take against the appellant such action as it considers fit on the remaining two charges which have been established against him. Since the appellant admittedly did not perform his duties and remained absent from his duties from 19th October, 1981 till 21st March, 1982 and also failed to get himself examined by the Corporation's Medical Officer Dr. M. S. Qureshi, I am of the view that the appellant would not be entitled to any back benefits.

A. E. Appeal dismissed.

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