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Constitutional Petition No. D-283 of 1983, decided on 14th April, 1983.

- Ss. 25-A & 38(3)-Grievance petition against dismissal from -service on account of misconduct-Domestic enquiry impartial and fair-Concurrent finding of Labour Court and Labour Appellate Tribunal that alleged misconduct established and both unanimous on such questions of fact-No indication that findings not based on evidence or any material evidence excluded from consideration Interference in exercise of constitutional jurisdiction, in circum stances, refused by High Court-Constitutional jurisdiction-Pro visional Constitution Order (1 of 1981), Art. 9.

Akhlaq Ahmad Siddiqui for Petitioner.

-The petitioner has challenged the orders passed by the Labour Court and the Sind Labour Appellate Tribunal. The petitioner was employed as a Cook in the Catering Department of respondent No. 3. A show cause notice was served on the petitioner alleging that during the year 1981 he had remained absent on 13 occasions. On demand particulars of the dates were supplied to him. He pleaded that from 29th June, 1981 to 1st July, 1981 he was absent due to sickness and death of his infant daughter for which leave was granted to him on 28th January, 1981 and for the remaining period he was present but his card was either not punched or the punching of the card was missed. This explanation was not considered satisfactory and an enquiry was ordered which was held by Mr. Mecklai an Officer of the res pondent No. 3. The statements of the witnesses of respondent No. 3 were recorded besides the statement of the petitioner. The witnesses of the respondent No. 3 supported the case of the respondent No. 3 except that from 29th June, 1981 to 1st July, 1981 the petitioner was on leave. The Enquiry Officer submitted his report to the respondent No. 3. The charge of habitual absence from duty except for the aforestated three days was established, and by an order dated 20th February, 1982 the petitioner was dismissed from service. The petitioner filed application challenging the order before the learned IVth Labour Court which was dismissed on 17th January, 198- . It was held that misconduct of the petitioner has been established, the enquiry was impartial, independent and full opportunity was given to the petitioner. The petitioner filed an appeal before the learned Tribunal which was dismissed by the impugned order.

Mr. Akhlaq Ahmed Siddiqui the learned counsel for the petitioner contends that full opportunity to defend the case was not given to the petitioner. This contention is not borne out by the material on record The learned Appellate Tribunal had taken pains to look into the entire record of the Labour Court, as well as the Enquiry Tribunal. It i: obvious that the witnesses were produced in the presence of the petitioner and at one stage the representative of the petitioner was also present From the enquiry report, copy of which is annexed with the petition, i seems that the petitioner was given opportunity to cross-examine the witnesses produced on behalf of the respondent No. 3. It is significant to note that when the petitioner was asked to cross-examine Sair and Javec Khan, the Officers of respondent No. 3, the petitioner did not avail o this opportunity. In fact he asked Sair to forgive him. This clearl; shows that the contention of the learned counsel has no force.

The learned Tribunal has taken note of the fact that the stand take by the petitioner in this explanation and before the Labour Court wit regard to his absence was contradictory in terms. Some times he ha stated that he was present, but the attendance card was not punches as punching was the responsibility of respondent No. 3. This too he could not establish. Again he stated that he was absent due to illness for which he attempted to produce prescription of the doctor. These pleas were not accepted by the Labour Court or by the Tribunal. Both these authorities have taken into consideration the evidence produced by the parties and have come to the conclusion concurrently that the petitioner pas committed misconduct and was irregular in attending his duty. This is a question or race on which born the authorities below are unanimous. The learned counsel has not been able to show that the finding is not based on any. evidence or any material evidence has been excluded from consideration.

In these circumstances, it is not possible to exercise constitutional, jurisdiction and to set aside the impugned orders which even otherwise seem to have been passed with lawful authority. The petition is, dismissed in limine.

A. E. Petition dismissed.

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