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Application No. 12 of 1982 decided on 8th May, 1984.

‑‑S. 25‑A (5)‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 15(3) (e)‑‑Words "just and proper" used in S. 25‑A (5) of Industrial Relations Ordinance, 1969 a check against arbitrary or erroneous dismissals particularly when it is emphasised that Labour Laws to be construed liberally for benefit of workmen‑‑Petitioner remaining absent for 17 days and 8 days in two consecutive months ‑Dismissed from service on charge of absence from duty‑‑Absence due to serious illness of father with none else to attend and explanation for leave otherwise due supported by medical certificate‑‑Service record brilliant‑‑Labour Court in circumstances setting aside impugned dismissal order awarding reinstatement without back benefits‑‑Held: (i) Conclusion drawn on facts regarding misconduct of absence was not just appreciation of principles of natural justice, (ii) it is for Labour Court to see in each case on its merits whether absence was intentional, (iii) absence in instant case was for circumstances beyond control of petitioner and was not motivated by dishonest intention with unpleasant service record hence dismissal order not just and proper on basis of rules of natural justice.

Ch. Rashid Ahmed for Applicant.

Kamal Mansur Alam for Respondent,

This is an application filed by Rafiq Ahmed Jokhio, against Pakistan Steel Mills, under section 25‑A of the Industrial Relations Ordinance, 1969, challenging the impugned order of dismissal, on the ground, that his dismissal was not in accordance with law or appreciation of the factual niceties.

2. Applicant claims to be in employment of the Pakistan Steel Mills, since 1974, as the Coke Pusher Operator, which was his first designation and thereafter, training abroad in the same trade. He also worked at Construction Base, with the best performance and his services were appreciated by the foreign Experts and the local officers.

3. When the show‑cause notice was served, complaining of 17 days' absence in July, 1981, and 8 days in August, 1981, the petitioner submitted the circumstances which prevented the petitioner from attending the date as the circumstances beyond control.

4. The applicant also further explained to the Management, that due to the serious illness of his father, he could not leave his father alone. But it was found, that Management has ordered for domestic enquiry to be held by Mr. Khalid Quddoos, Assistant Manager, who asked him to give statement and produce defence evidence, but the respondent's enquiry officer did not follow the proper procedure of summoning the prosecution first, and, therefore, he was prejudiced. The petitioner has also contended that the effect of findings of guilt was erroneous, as the ground of illness was sufficient explanation. Accordingly the petitioner has challenged the dismissal, dated 4‑2‑1982, by sending the Notice to the respondent on 27‑4‑1982, which was replied by the respondent on 18‑5‑1982.

5. While in the concluding para the petitioner has drawn the attention of the Court to another important aspect, that if the circumstances of illness were beyond his control, the Management could consider his leave, which was outstanding during the period of 8 years, with brilliant record of service, where the only allegation is of absence from duty.

6. Respondent has filed number of contentions, namely, that application is time‑barred and the enquiry was properly conducted, and he was given the full opportunity of defence. Regarding time‑barred application, it is contended, that the applicant had sent his appeal on 18‑2‑1982, to the employer.

7. On the perusal of record, it appears to show that this matter had also gone in appeal, before the Hon'ble Appellate Tribunal, on the legal questions, where His Lordship remanded the case with the observation that the grievance petition by the petitioner/ appellant was within period of limitation. Obviously, therefore, the case is remanded for the decision on merits, whether Mr. Rafiq Jokhio deliberately absented himself and his dismissal was justified in law.

8. The impugned dismissal order of the authority, who was competent to dismiss the petitioner, on the facts of the finding by the Enquiry Officer, appointed to examine his absence, without leave, is challenged by Mr. Rafiq Ahmad, on no other ground, except to contend, that, the prosecution has not followed the required procedure, to examine the witnesses of the respondent, and, therefore, it has caused prejudice.

9. In the first place, throughout the petition, and the grievance notice, I found no other ground to challenge the legality of the proceedings of the Enquiry Officer and to draw any possible conclusion, that, Mr. Rafiq Ahmad has justified his absence, supported by any application of leave, telegram, or other source of communication, to the employer, of his father's illness, and his inability to attend.

10. His petition of grievance and the reply to show‑cause notice as the statement, recorded before the Enquiry Officer, indicates that, he has admitted his absence from duty, but on this compassionate ground, that, his father was seriously ill, and was on the bed, suffering from neurosis, and had no means to arrange for medical treatment. But, he has also pleaded in the form of mercy petition, to the employer, that with such brilliant record of service, with higher appreciation letters, to which, he has made reference of the letters of Soviet expert, and the Manager (Technical), for his remarkable achievement of successful production of 425 Tons of reinforcement of various complexes, of Pakistan Steel Mills.

11. His mercy petition was not considered and he was dismissed by the Operational Head Mr. Qaiser Raza.

12. Section 15 of the Standing Orders Ordinance, among other classifications of misconducts, described also, lays down, in clause (e) that, following acts and omissions, shall be treated as misconduct, namely, habitual absence without leave or absence without leave for more than 10 days.

13. If Mr. Rafiq Ahmed has admitted, that he was absent from duty for 17 days in the month of July and 8 days in August, 1981, this absence was clear absence, without leave, more than 10 days.

14. The only defence, which Mr. Rafiq Ahmed has produced before the Enquiry Officer, was, the Medical Certificate, produced, regarding illness of his father, and secondly, asked for medical officer's consideration of compassionate view, otherwise, I find no other defence, he has raised throughout the petition.

15. But, what is argued is, whether the dismissal order passed, is proper, in the circumstances, as Mr. Rafiq Ahmed has contended, that with such brilliant record of service, and no other allegation of committing misconduct, or breach of discipline, except the absence, and therefore, the approval of competent authority, of his dismissal according to him, was not proper in view of outstanding leave.

16. To put, it precisely, I may emphasise, that, in the domestic enquiries, there is no particular procedure, to be followed, as in the case of enquiries of civil servants, but as far as possible, the procedure should be followed which should be judicially correct with the requirements of the rules of natural justice, which form part of every enactment and of this I.R.O.

17. In this case, Mr. Rafiq Ahmed, was properly heard, and, his medical certificate, produced by the defence, was not found approved, by the Enquiry Officer, who was the sole judge of the facts and the conclusion drawn by him, that, his absence from duty, for more than 10 days, was also under the provisions of the Standing Orders.

18. But, section 25‑A, I.R.O., further, in clause (5) reads, that in adjudicating and determining the grievance, the Court shall go into all the facts of the case, and pass order, as may be just and proper in the circumstances of the case. The word proper and just, emphasised, in section 25‑A, is the check against the arbitrary dismissals, or erroneous dismissals, when, it has been emphasised, that, labour laws are to be construed liberally for the benefit of the workmen.

19. If I understand, that, by this provision of sub‑rule (5), if I am to read in that provision, that, rules of natural justice form part of every enactment, whether the principles of natural justice were also followed by the Enquiry Officer, in the application of the fact with the application of law, and the requirements of natural justice, which is inherent, giving the powers to the Enquiry Officer to do justice, to the best of his conscience.

20. In the opinion of this Court, indeed, Mr. Rafiq Ahmed has admitted his absence, but he has produced the medical certificate of his father's illness, signed by Neuro Surgeon and explained in his mercy petition, that, due to the serious illness of his father, such, as the damage to brain, or decease of the nature, like epilepsy, got him admitted in Ziauddin Hospital, and, there was no person to attend in such situation, to save the life of his father, of a poor workman. If such was the happening, which was beyond his control, whether, this kind of absence, if, firstly, was not the habitual absence, as understood in the Standing Orders Ordinance, and supported by the circumstances of this nature, where in the course of human experience, such tragedies do occur, the conclusion, drawn on the question of fact, regarding misconduct, I find, was not the just appreciation of the principles of natural justice, at least.

21. In this context, I am supported by the reference, to the un reported decision, of His Lordship Mr. Justice Channa, produced by the respondent itself, which reads, that, according to rule 439, of Steel Mills Service Regulations, application for leave on medical ground, is to be supported by the medical certificate from the medical officer of the corporation, if he is not available, by any Registered Medical Practitioner (Appeal No.73/83). Reference is also made to the decision of 1975 C L C 7; 1974 L L C 205, Guftar Shah v. Sind Labour Court No. 3.

22. In this case, if the illness has been found, to have been sudden of the father of Mr. Rafiq Ahmed and no one was to attend his father and such kind of disease, which was so dangerous. If medical certificate was produced by the eminent Surgeon, it could weigh in consideration, and, it could not be an intentional absence. Further, in the opinion of this Court, if the provisions of the Standing Orders, provide, that, the acts and omissions of absence, for more than 10 days, is misconduct, it is again for the Labour Court to examine, whether the absence was intentional, where the act and omission has been shown in the Ordinance, that, the absence for 10 days is misconduct, whether that misconduct is an intentional misconduct. Therefore the circumstances, in the opinion of this Court, are to be examined as a whole, that the particular petitioner did disregard the rules of discipline, intentionally, when the record of the same person has remained brilliant. As section 25‑A gives the jurisdiction to the Labour Court Judge, to pass order what is just and proper, the Court is of this view, that in the circur43tances, of this peculiar case, the absence was not intentional. However, each case is to be examined, on its merit and not to be understood, that, if D a worker sits at home and pleads that he had no intention. The circumstances are to be examined, whether the circumstances were beyond control, and the absence was not motivated, by dishonest intention, with unpleasant record of service, which is not the case, on the basis of appreciation letter, even from the Management higher official.

23. In the result, the impugned dismissal order is set aside, on the, basis of the rules of natural justice and Mr. Rafiq Ahmed is reinstated, but, he can not claim the back benefits, during the period of litigation, because it was his absence, but condoned on the requirements of the natural justice, for his reinstatement. However, the back benefits also, are within the discretion of the appointing authority, if it is satisfied that he is reinstated on the requirements of natural justice. His absence will be treated as leave with pay, if it is outstanding.

A.E.

Order accordingly.

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