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Constitutional Petition No. D‑264 of 1980, decided on 20th February 1985.

‑‑S. 25‑A‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15 (3) (e) Employee dismissed from service after inquiry‑Finding of Inquiry Officer that employee remained absent on certain dates without application for leave found incorrect by Labour, Appellate Tribunal‑--Order of dismissal in consequence set aside‑On basis of above finding of fact, Labour Appellate Tribunal, held, could not have sustained order of dismissal.

‑‑S. 25‑A‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15 (3) (e) Dismissal of employee‑Letter of employer addressed to employee about absence and dereliction of duty not put to employee in cross‑examination before Inquiry Officer Effect High Court refused to take into consideration said letter in circumstances of case.

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

‑‑‑S. O. 15 (3) (e)‑Absence without leave‑"Habitually absent Meaning‑Duty of employer‑Incumbent upon employer to prove that worker concerned was in habit of remaining absent without leave and habit could not be proved by quoting few instances in a period of three months out of total length of service of ten years‑In order to constitute being habitual absence without leave, it was necessary that there should be series of acts of remaining absent without leave repeatedly committed during entire tenure of service.

Muhammad Munir v. Bawani Violin Textile Mills Ltd. 1972 P L C 312 distinguished.

Aftab Alam alias Matoo v. Province of Sind and 2 others P L D 1979 Kar. 645 rel.

Saleem Akhtar Shamsi for Petitioner.

Syed Ali Ahmad Taqvi (absent) for Respondents.

Date of hearing : 20th February, 1985.

‑This petition is directed against the order, dated 19th January, 1980 passed by the respondent No. 1. The brief facts leading to the filing of the above petition are that respondent No. 3 was working in the petitioner factory in the Winding/ Weaving Department. On 22nd March, 1976 he was charge‑sheeted for remaining absent without leave. Res pondent No. 3 submitted his reply, dated 27th September, 1976. But the same was not found satisfactory, the petitioner ordered inquiry. The Inquiry Officer issued a notice, dated 30th March, 1976 calling upon respondent No. 3 to appear before him on 1st April, 1976. After that the inquiry was conducted and the inquiry report was submitted by the Inquiry Officer dated 22nd March, 1976. Upon receipt of the enquiry report, the petitioner was dismissed 'from service with effect from 18th August 1976. Respondent No. 3 being aggrieved by the above dismis sal order, after serving a grievance notice, filed an application under section 25‑A of the I. R. O., 1969 (Application No. 392 of 1976) in the Court of VIth Labour Court at Hyderabad Sind. The above applica tion was resisted by the present petitioner. The learned Labour Court, after recording the evidence and after hearing the parties, by his order, dated 12rh October, 1978. dismissed respondent No. 3's above application holding that the conclusion of the Inquiry Officer that the respondent No. 3 was guilty of having remained habitually absent in terms of Standing Order Ordinance 15 (3) (e) was proper. Respondent No. 3 being aggrieved by the above order filed Appeal No. HYD‑369 of 1978, which was allowed by the learned Sind Labour Appellate Tribunal by its order, dated 19th January 1980 and respondent No. 3 was ordered to be reinstated without back benefits. The petitioner being aggrieved by the above order has filed the present petition.

2. (a) Though the notice for today's date of hearing has been sent to the learned counsel for respondent No. 3 but nobody has appeared. We have heard the learned counsel for the petitioner Mr. Shamsi who in support of the above petition has urged that the findings of the learned Sind Labour Appellate. Tribunal are self‑conflicting. In furtherance of his above submission, he has pointed out that the learned Sind Labour Appellate Tribunal has held that factually respondent No. 3 remained absent without obtaining leave in terms of Standing Order 8 but at the same time held that the dismissal order was not sustainable.

(6) It may be pertinent to reproduce the charge‑sheet, which reads as follows

"AMIN FABRICS LIMITED

Aminabad‑--Kotri,

ORIGINAL

DUPLICATE/TRIPLICATE

IN PERSON/REGISTERED

Ref. No.

Mr. 1068.

Subject‑CHARGE‑SHEET.

This is to inform you that you are reported to have committed following acts and omissions details of which is given as under: ‑

URDU TABLE PAGE NO 766

Your above‑said acts and omissions amount to misconduct as per Standing Order No. 15 (3) (e) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which render you liable for disciplinary action. You are, therefore, called upon to explain your conduct within two days from the date of receipt of this charge‑sheet why you should not be dealt with according to law.

(Sd.).

Manager/Department I/C

22/3.

Dated 22‑3‑76.

Copy to‑‑‑

Received: -----

Signature/left thumb‑impression."

The learned Sind Labours Appellate Tribunal as a finding of fact has recorded that respondent No. 3 had sent applications for leave through the fellow workers for the dates mentioned in the charge‑sheet The above finding of fact is based on the evidence of 9 workmen produced by respondent No. 3 before the Inquiry Officer. Having held this the learn ed Tribunal found that the plea of the petitioner that no application was made for any of the above dates was incorrect and, therefore, the basis of the inquiry was not sustainable. In our view, on the basis of above finding of fact the learned Sind Labour Appellate Tribunal could not have sustained the order of dismissal. Furthermore, we have noticed that respondent No. 3 has been dismissed for the misconduct referred to in Standing Order 15 (3) (e) namely "habitual absence without leave". It has been urged by Mr. Shamsi that 10 days remaining absent without obtaining leave in a period of three months constitutes misconduct of habitual absence without leave. In support of the above submission he has also invited our attention to the petitioner's letter, dated 20th January, 1976 addressed to respondent No. 3 alleging therein that it was the habit of the above respondent not to attend his duty and some time after punching card to remain absent. It has, therefore, been contended by Mr. Shamsi that if this letter is to be read with the charge‑sheet, this will prove that res pondent No. 3 was habitual absentee without leave. We inquired Mr. Shamsi whether the above letter, dated 20th January, 1976 was put to respondent No. 3 in the cross‑examination before the Inquiry Officer or 8 even before the Labour Court, his reply was in the negative. In this view of the matter, we are not inclined to take into consideration the above letter, dated 20th January, 1976 and, therefore, we are left with the charge- sheet quoted hereinabove.

(c) Mr. Shamsi then referred to the case of Muhammad Munir v. Bawani Violin Textile Mills Ltd., Karachi (1972 P L C 312), in which the learned Sind Labour Appellate Tribunal then presided over by late Justice (Retired) Feroze Nana Ghulamally held that the appellant was guilty of habitual absence as he had remained absent for 14 days in the period of four months. The above case has no application to the present case, for more than one reason, firstly, in the above case it was held that worker concerned remained absent without leave during the last several years as well in addition to the period which was the subject‑matter of the charge‑sheet. In the present case there is no evidence that since 1966 upto 1976 when respon dent No. 3 was charge‑sheeted he remained absent without leave during the period of nearly 10 years except for which he was charge‑sheeted and, secondly, in the present case there is finding of fact recorded by the learned Sind Labour Appellate Tribunal that factually respondent No. 3 had sent applications for leave through the fellow workers.

3. We are inclined to hold that in order to bring the charge of habitual absence without leave, it is incumbent upon an employer to prove that the worker concerned is in the habit of remaining absent without leave and the habit cannot be proved by quoting a few instances in a period of three months out of a total length of service of ten years. In order to constitute being an habitual absentee without leave, it is necessary that there should be series of act of remaining absent without leave repea tedly committed during the entire tenure of the service. In this regard it maybe pertinent to refer to the case of Aftab Alam alias Matoo v. Province of Sind and 2 others (P L D 1979 Kar. 645) in which a Division Bench of this Court has constructed the word "habitually" while construing rules 22.4 (b) and 33.9 (2) of the Police Rules, 1934 read with section 14 of the Sind Crimes Control Act, 1975. It may be pertinent to reproduce the relevant observations, which reads as follows: ‑

"I may observe that the words 'reasonably believed to be habitually addicted to crime' in rule 33.9 (2) and reasonably believed to be habitual offenders' used in rule 23.4 (b) are of great significance. The word 'habitually' required a continuous and permanence of criminal tendency something that has developed into a propensity that is present from day to day. Its presence is demonstrated by the frequency of acts that by repetition have acquired the characte ristic of being customary or usual behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. In other words, a habitual offender or a person habitually addicted to crime repeats on committing of offence/offences whenever appropri ate conditions are present. It becomes habit on account of frequent repetition to commit offence. The words 'reasonably believed' used before the expression, 'to be habitual offender' and to be habitually addicted to crime-----in rules 23.4 and 23.9, makes it clear that the belief cannot be based on mere sus picion, but should be based on reasonable material. The word "reasonably' is not surplusage, but has a definite function, viz. inter alia to limit the discretion of the authority concerned and to make objective satisfaction obligatory, that would otherwise have been subjective satisfaction."

4. We are, therefore, of the view that even otherwise the charge of habitual absence without leave was not sustainable on the basis of the finding of facts recorded by the learned Sind Labour Appellate Tribunal. We, therefore, see no merits in this petition and dismiss the same with no order as to costs.

A. A.

Petition dismissed.

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