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Appeal No. LHR‑491 of 1983, decided on 10th March, 1984.

‑‑S. O. 15 (3)‑Misconduct‑Habitual absence‑There should be series of absence scattered over some months‑Successive absences would not show that a habit has developed to remain absent‑Ten absences in a period of less than a month‑Such kind of absence would rather show that there was some reason for remaining absent‑Wife of workman in family way and he having neither mother nor sister had himself to look after his wife‑Held, not guilty of misconduct by remaining absent an ten days during a period of less than one month.

‑‑S. 25‑A ‑ Grievance petition against wrongful removal from service‑Right of remedy‑Workman receiving without protest his full and final dues like leave salary, provident fund and salary for annual holidays which could be received at end of service Forgoes his right to challenge removal order and estopped from challenging same.

Waseem Ahmad for Appellant.

M. S. Bokhari for Respondent.

Date of hearing : 28th February, 1984.

The appeal captioned above is directed against the decision, dated 30th July, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of the appellant for his re‑in statement in service was dismissed.

2. The allegation against the appellant was of habitual absence with out leave. The dates of absence are 29th September, 1981, 30th September 1981, 3rd October, 1981, 4th October, 1981, 5th October, 1981, 7th October; 1981, 12th October, 1981 to 14th October. 1981 and 18th October, 1981, There were in all ten absences in a period of less than a month. For habitual absence there should be series of absences scattered over some months. Successive absences would not show that a habit has developed in tare absentee to remain absent. Rather this kind of absence shows that there was some reason for remaining absent. The case of the appellant is that his wife was in a family way and he, having no mother and sisters, had to himself look after her. Since no misconduct was committed, the order of dismissal was not justified. But the difficulty is that the appellant accepted the dismissal order and waived his right to challenge it by claiming and receiving all the benefits of service in full and final settlement of his dues. Exh. R‑3 is the pro forma filled in and signed, by the appellant to claim benefits of his service in full and final settlement of his dues. Exh. R‑4 is the receipt. In none of these documents any protest is made. If an employee receives arrears of wages, he is not estopped from challenging the order of removal from service. But if he claims and receives the entire amount that cannot be paid to him during the subsistence of his service; towards full and final settlement, he forgoes the right to challenge the order of his removal from service. The appellant claimed and actually received leave salary, provident fund and salary for annual holidays. Such dues can be received at the end of service. Since the appellant claimed and received such dues, he gave an impression to the respondent that he no longer wanted to remain in service and would not to challenge the order of removal from service. He was thus estopped from challenging the order of his removal from service.

3. As a result, the appeal having no force, is dismissed.

A. E Appeal dismissed.

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