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Appeal No. HYD‑32 of 1985, heard on 17th December, 1985.

‑‑‑Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Bank employee absenting‑‑Notice served that period of absence treated as leave without pay and that disciplinary action would be taken in case of failure to join duty within 7 days‑‑Employee joining duty within such period Plea that (i) taking disciplinary action was conditional, (ii) employee by joining duty within specified period fulfilled such condition, (iii) employee was never asked to explain reasons of absence, (iv) absence period treated as leave without pay hence, one penalty already imposed thus further action and dismissal from service on same charge of absence was not warranted‑‑Plea accepted and order of Labour Court awarding re‑instatement with 50 back benefits upheld by Appellate Tribunal, [Industrial dispute].

Bashir Awan for Appellant.

Wasiullah Qureshi for Respondent.

Date of hearing: 17th December, 1985.

The instant appeal is against the order of the Sind Labour Court No. VI at Hyderabad, who vide his order, dated 13‑12‑1984 set aside the impugned order of dismissal of the respondent and reinstated him with half of the back benefits from 21‑9‑1983.

2. The, facts in this case are that the respondent, Akbar Ali was employed as Messenger in the respondent Bank at New Saeedabad Branch of the appellant Bank. He was said to have absented himself from duty without permission from 30‑4‑1983 and the Manager of New Saeedabad Branch reported his absence on 7‑5‑1983 on the report of the Manager, the Zonal Office issued a charge‑sheet, dated 25‑5‑1983, but the same could not be served on the respondent and, therefore, its copy was sent by the Zonal Office to the concerned branch by a covering letter, dated 4‑6‑1983 for pasting it on the Notice Board. In the said covering letter, it was also mentioned that the period absented by the respondent be treated as a leave without pay. It further appears that on 11‑8‑1983, another letter of charge was issued to the respondent stating therein that he was still absenting from duty and had also failed to submit his reply to the charge‑sheet, dated 25‑5‑1983. By this letter, the respondent was, however, advised to report for duty within one week failing which disciplinary action was proposed against him; it has further been pleaded in the grievance petition that this letter, dated 11‑8‑1983 was replied by the respondent on 3‑10‑1983, and thereafter, some enquiry was conducted and finally he was removed from service, vide letter, dated 20‑12‑1983. According to the respondents, this dismissal order was illegal and in violation of the mandatory provisions of the Standing Order Ordinance read with Efficiency a Discipline Rules.

3. In reply statement, the appellants pleaded that after holding proper enquiry in accordance with law, the charge of misconduct was proved against the respondent and so he was rightly dismissed.

4. The evidence was recorded of Akbar Ali, respondent, while Nazir Ahmad and Anwar Sheikh were examined on behalf of the appellants. I have heard Mr. Wasiullah Qureshi, Advocate for the respondent and Mr. Bashir Awan, Advocate for the appellants in this appeal. Mr. Wasiullah Qureshi for the respondent had argued that the charge‑sheet, dated 25‑5‑1983 mentioned in its charge that the absence of the respondent was considered to be leave without pay. The penalty was already imposed. It was contended that according to the letter, dated 7‑5‑1983, the absence from duty was less than 10 days. The letter, dated 11‑8‑1983, respondent was called upon to join the duty and; therefore, there was no need to hold the enquiry. Since the respondent has joined the duty in pursuance of the letter, dated 11‑8‑1983, no action was warranted by law and the dismissal order was illegal.

5. Since, the penalty was already imposed and the absence from duty was considered as leave without pay, further enquiry being held and the second penalty 'imposed by dismissing the respondent is very strange and it appears that the enquiry was held as a matter of routine not knowing that the penalty was already imposed. The Labour Court has rightly pointed out that the letter, dated 11‑8‑1983, stipulated A that the respondent should report for duty within 7 days which he did. Taking of disciplinary action was conditional and the condition was that if the respondent did not report for duty within the prescribed period then the action might be taken. Mr. Wasiulah Qureshi has, therefore, rightly submitted that the respondent was never called upon to explain the reasons of the absence, so no action was required to be taken against the respondent.

6. After seeing the facts of this case and after reading of the impugned order, I am of the opinion that the impugned order has correctly decided the matter and this appeal is, therefore, dismissed.

A. E. Appeal dismissed.

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