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Appeal No. HYD-49 of 1984, decided on 20th August, 1985.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--
---S.O. 15(3)(e)--Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 38(3)--Dismissal for misconduct of habitual absence--Accused alleged to have remained absent for 92 days during period of 6 months--Allegation denied and sanction of leave claimed--Management not taking notice of alleged behaviour and waited for six months and register indicating alleged absence appearing to be manipulated--Appellate Tribunal, in circumstances, taking the view that management had waived conduct of accused and upholding reinstatement order passed by Labour Court.
P L D 1958 S C 153 and 1980 P L C 610 distinguished.
S. Zamirul Hassan for Appellants.
Ch. Rasheed Ahmed for Respondent.
Date of hearing: 7th August, 1985.
The instant appeal is filed by the appellants, namely Indus Jute Mills Ltd., Dhabeji against Manzoor Hussain son of Rustom Ali, who got an order, dated 20-2-1984, from the Sind Labour Court No. VI at Hyderabad that his grievance petition was accepted and he was reinstated in service with full back benefits.
2. The respondent was a worker and was employed as Weaver in the Indus Jute [Hills and was also a Joint Secretary of Trade Union. The management ryas annoyed due to his union activities and had issued a charge-sheet Exh.A-1, dated 19-1-1983, wherein the allegations of habitual absence from duty without leave were levelled against the respondent. The respondent replied to the charge-sheet, vide Exh.A-2, dated 26-1-1983, which was not favoured by the management and, therefore, an enquiry was conducted against the respondent. He was found guilty of the charges levelled in the charge-sheet and ultimately was dismissed from service on 12-2-1983. The applicant in the reply statement denied the allegations levelled by the respondent in his application under section 25-A, I.R.O., 1969, and they stated that he was an habitual absentee and that a charge-sheet was given to him and that ultimately he was dismissed.
3. I have heard the arguments of Mr. Zamirul Hassan for the appellants who argued that the respondent was an habitual absentee and as such he was given the charge-sheet. This necessitated that the charge-sheet be perused and personally the charge-sheet is perused by me and it is with regard to 92 days wherein the respondent remained absent from July, 1982 to December, 1982. The charge-sheet further mentions that he took leave for 14 days during this period but for 92 days he remained absent. The number of days are mentioned in the charge sheet. Whereas the respondent has maintained that he applied for leave and it was granted and he has produced the relevant applications Exhs. 'A-1' to A-11'. The photostat copies whereof are produced before the Labour Court and the Labour Court believed that these applications were genuine copies of the leave application which were granted. I have perused these applications and they appear to be doubtful and one cannot say that these applications were made by the respondent and the applications were granted.
4. But, on an examination of the entire situation, the management has accepted his remaining on leave and the register from which his absence is counted to be 92 days, appears also to be doubtful register. The allegation is made that for 92 days within 6 months from July, 1982 to December, 1982, the respondent remained absent. Is this the result of his habitual conduct, namely, remaining absent or the fact is that the management has connived for six months regarding the behaviour of the respondent. The management has actually waived his absence if at all he was absent although the stand taken by the respondent is that he was granted leave. Leave for 92 days seems to be excessive and it does connote to me that both the register of the management was manipulated and he cannot be made liable for habitual conduct of remaining absent. The management should have taken notice 'of this A behaviour earlier and should have not waited for six months to take action against the respondent. These, circumstances render the domestic enquiry to be doubtful in nature and the learned Labour Court was correct in ordering the reinstatement of the respondent. I maintain the order of the learned Labour Court and dismiss this appeal. The back benefits deposited in this Tribunal be paid to the respondent forthwith.
5. However, Mr. Zamirul Hassan has referred to me to P L D 1958 S C 153, which is not applicable and so also he referred to 1980 P L C 610, which is also not applicable and the facts in these two authorities are different. In this case there is clearly a question of waiver and the management has waived the conduct off, the respondent. Therefore, B the appeal is dismissed.
A.E. Appeal dismissed.
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