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‑‑‑Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Grievance petition against dismissal‑‑Accused charged for misbehaviour and act subversive of discipline‑‑Accused receiving telephonic message from native village regarding illness of mother and while receiving message directed by superior to put down telephone receiver and superior officer becoming furious and forcing accused to put down the receiver‑‑Accused making complaint of incident without any result but served with show‑cause notice‑‑Accused requesting postponement of enquiry till his return because he had to leave for home town for which leave had already been recommended‑‑Request for postponement of enquiry not replied to and ex parte enquiry conducted while accused had not yet left for home town‑‑Dismissal from service coming to knowledge of accused on return from home town‑‑Held: Circumstances smell that unnecessary haste shown because of prestige of superior who was at fault and there was definite malice on part of management‑‑Dismissal order set aside by Appellate Tribunal.

S.P. Lodhi for Appellant. Samiullah Khan for Respondent. Date of hearing: 19th August, 1985.

This is an appeal against an order of Vth Labour Court who on 26‑7‑1983 dismissed the grievance petition of the appellant.

2. The facts connected with the grievance petition are that the appellant was employed as Commercial Assistant with Messrs Cotton Export Corporation of Pakistan Limited, since 1975. On 25‑3‑1982, the appellant received a telephone call from his village and being urgent he went to the office and was receiving the message at 5‑25 p.m. when, one Nizamuddin Memon, Deputy Manager (Stores) reached and forced the appellant to put down the receiver and disconnect the telephone. The telephone call was from his uncle and that the mother of appellant was seriously ill and that he should immediately go to his village. Then, Nizamuddin Memon became furious and forced the appellant to keep the receiver down. He also threatened the appellant that he will see that he is out of job. Immediately the appellant made a complaint to General Manager (A ministration), but no action was taken. The appellant, however, was given a show‑cause notice, dated 28‑3‑1982. He replied the notice on 31‑3‑1982.

3. It was the case of the appellant that he wanted to proceed to his village to solemnize the death anniversary of his father on 2‑5‑1982.0 He, therefore, made an application for leave from 2‑5‑1982 to 31‑5‑1982. The leave application was recommended. However, an enquiry into the quarrel was fixed on 29‑4‑1982, whereas the appellant was to proceed on leave on 2‑5‑1982, and that receiving the news of his mother's illness, he requested the management to postpone the enquiry. Under the emergency, which forced the appellant, he proceeded to his native place. Whereas an ex parte enquiry was held on 29‑4‑1982. He returned from the leave and learnt that he was dismissed from service. The enquiry was held on 29‑4‑1982 of which no information was given to the appellant though he was present. The domestic enquiry was held, in hot‑haste.

4. On the side of the management in the reply statement, it was stated that the appellant has served the management since April, 1975. The appellant had himself involved in an act subversive of discipline. He quarelled with Nizamuddin Memon, Deputy Manager (Stores) and his reply to the show‑cause notice was not found satisfactory.

5. In the Labour Court the appellant filed his affidavit and was cross‑examined. The affidavit of Muhammad Jaseemuddin, Assistant Manager (Establishment) was also filed on behalf of the respondent- corporation and was cross‑examined.

6. I have heard the learned representative for the appellant, Mr. S.P. Lodhi, and Mr. Samiullah Khan for the respondent‑Corporation. From the evidence and the facts as discussed above, it appears that the appellant who served the respondent‑Corporation for years was put in a dilema. His application for leave from 2‑5‑1982 to 31‑5‑1982 was already recommended and the incident of telephone call and the quarrel thereon was capitalized unnecessarily and the request to postpone the domestic enquiry was not acceded to. The appellant was put in two fires one, the urgency that he had to attend the ailing mother and the death anniversary of‑ his father; and second that he has to face the enquiry over only a quarrel on the incident of telephone call and that he had abused the Deputy Manager (Stores), Nizamuddin Memon. The fault of the appellant was that he chose to proceed to attend his ailing mother and the death anniversary of his father at his native village. The leave application of the appellant was on record and it was duly recommended. The appellant believed that his leave application will be granted in due course of the time and that the enquiry, as such will be postponed till his return from the leave. This was not done and the entire situation, one smells that unnecessarily haste was shown because the prestige of the Deputy Manager (Stores), Nizamuddin Memon was injured, who was at fault. Some patience might have been shown by the Deputy Manager (Stores), Nizamuddin Memon to tolerate the urgent telephone call of the appellant.

7. Considering the circumstances of this case, I feel that the learned Labour Court is not justified in dismissing the grievance application of the appellant. There is definite circumstance to involve malice on the part of the respondent‑Corporation. The appellant has served the B respondent‑Corporation for 7 years. I, therefore, disagree with the order of the learned Labour Court and set aside the impugned order and hereby allow the appeal. The appellant is to be reinstated, in service forthwith. As regard the back benefits, they need not be granted by virtue of the fact that the appellant proceeded on leave, although recommended, but without sanction. He also overstayed the leave as recommended by the establishment.

A. E. Appeal allowed.