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Application No. 135 of 1984, decided on 28th January, 1985.

---S. 25-A--Grievance notice--No particular form prescribed--Aggrieved workman informs employer that if grievance not redressed he will go to Labour Court for redress--Appeal or representation to higher authority if not statutory requirement of Rules of Establishment, held, deemed to serve purpose of grievance notice and limitation for grievance petition-would start from date of such appeal or representation.

1985 P L C 764 ref.'

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (Vt. of 1968)--

---S.O. 15(3)--Misconduct--Habitual absence--Series of absence in 8 consecutive months totaling 46 days without application--Held, rightly treated as habitual absence amounting to misconduct.

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

---S. 15(4)--Industrial Relations Ordinance (XXIII of 1969), S.'25-A- Dismissal for misconduct--Domestic enquiry--Pre-supposes fulfillment of all legal requirements which possibly be conceived within requirements of rules of natural justice--Copy of enquiry report not supplied and personal hearing not given--Violation of mandatory requirements--Labour Court arriving at conclusion that alleged misconduct proved--Dismissal order, in circumstances, set aside only to extent that petitioner who had already seen enquiry report after petition before Labour Court and had cross-examined on documents relied upon in enquiry shall be afforded opportunity of personal hearing by employer.

M.L. Shahani for Applicant.

Kamal Mansur Alam for Respondent.

This is application under section 25-A of the I.R.O., filed by Mr. Zafar Hussain, against the Pakistan Steel Mills Corporation Ltd., for reinstatement, with back benefits.

2. Applicant claims, that, he was employed as Junior Electrician, in the establishment of the respondent, on 30-11-1976. After various assignments, his final job was, of "winder", in the Central Electrical Maintenance Department.

3. Applicant was charge-sheeted on 15-8-1983, for the negligent of work, and habitual absence, without leave. Respondent rejected his explanation, and held the enquiry, which had the following defects:-

(i) He has not committed any misconduct, within the meaning of West Pakistan Industrial and Commercial, Employment (Standing Orders) Ordinance, 1968, and, therefore, the enquiry, based, without any charge, is illegal.

(ii) The Enquiry Officer has not followed the requirements of natural justice and, therefore, the applicant is prejudiced.

(iii) Applicant was not given the copy of the enquiry proceedings, and this requirement is also a mandatory, but, that has been violated.

(iv) The Enquiry Officer was partial and dependent.

4. Respondent has filed the written statement, where, it is contended, that, no notice of grievance was served on the employer. Applicant participated in the enquiry, and availed the full chance of defence. Applicant did not ask for the supply of the copy and, therefore, there is no question of prejudice, or the violation of the mandatory requirements, of the enquiry. Respondent supports the enquiry, as fair proper and based on justice.

5. Following are the points for determination:-

(i) Whether Mr. Zafar Hussain was a permanent worker in the respondent Mill

(ii) Whether he was charge-sheeted of the misconduct, on the ground of negligence in work and habitual absence

(iii) Whether the conclusion, made by the Enquiry Officer, in the appreciation of evidence, was just and proper

(iv) Whether the dismissal order of the applicant, dated 15-2-1984, was legal

REASONS:

6. Respondent has raised number of contentions. Firstly, that, no notice of grievance is served on the employer. Secondly the applicant was given full opportunity to defend his charge of misconduct. Thirdly, he did not ask for the copy of the enquiry report, or for the copies of the proceedings, recorded in the enquiry.

7. Applicant has the grievance, that, no charge of negligence of work was established. The charge of habitual absence, without obtaining proper leave, is not the habitual absence, within Standing Order 15. Thirdly, the application is not time-barred, for want of the notice of grievance, as the appeal, filed before the General Manager, Administration, is the notice of grievance, to cover up time, within the period prescribed for prosecuting the application in the Court.

8. I have heard Mr. Shahini, for the applicant and Mr. Kamal Mansur Alam, for the Steel Mill.

9. The contention raised by Mr. Shahani is, that, the appeal filed, before the General Manager, is in the nature of grievance notice to the employer. He also states, that, no particular form is necessary. Reference is made to 1982 'P L C 764. It was held in this case, that, in the grievance notice to the employer, it does not provide, for a particular form. Mr. Mansur Alam has contended, that the appeal is a part of the rules. Unless the applicant has exhausted his first remedy, the petition, in the form of an appeal cannot be taken as the notice of grievance. Section 25-A, un-doubly, is worded. in the manner, that, worker may bring his grievance, in respect of and- right, guaranteed or secured to him by or under any law, award or settlement, for the time being, enforce, to the notice of the employer, in writing.

10. If, by the wording of section 25-A, is to be construed, section 25-A, appears, that, the notice of grievance, to the employer, appears to be different from the appeals, representations, or mercy petitions. In the Court's opinion, it appears, that, particular form may not be necessary, but, the applicant, when gives the notice of grievance, informs the employer, that, if his grievance is not redressed he will go to the Court of law, for the redress.

11. In the facts of this case, if the rules are not produced, and these are not the statutory rules, that, the applicant is to exhaust the remedy first, then, this grievance, in the form of representation; appears, to show, that, the requirement of section 25-A seems to be satisfied, unless the respondent has shown, that, appeal was the part of the rules, and he had to give independent notice of grievance. So, each case has got the particular facts, whether statutory rules, provides the separate appeal or representation, otherwise, Mr. Shahani is correct, that, any grievance, made to the employer, challenging the illegal action, is he notice of grievance. So, if the time starts from the date of dismissal, the cause of action of termination, of 3 months, is to be counted from that date, within which the applicant can prefer the grievance notice, and to come to the Labour Court after 15 days, by waiting for. the reply and, then, within two months. If the application is filed on 3-5-1984, and the dismissal is dated 15-2-1984, the application is in time. Even if I take the time limitation, from 12-3-1984, that, he sent the notice of grievance, in the form of appeal, and he had two months and 15 days. His application is in time.

12. It s next contended by Mr. Shahani, that, if the negligent of work is not proved, the habitual absence, without obtaining leave, on the dates, shown is the casual absence, and cannot be called as the 'habitual absence' and, further, he states, that, the absence of 8 months, in one year, out of 7 years service, cannot be called the absence, with intention. He has further referred, to support his stand, by the explanation, applicant has tendered, that, his absence was due to his mother's illness.

13. On the other hand, Mr. Masur Alam, has not agreed with his contention. He states, that, applicant has remained absent for 46 days, in the year, and he is fully covered by the 'misconduct', under Standing Order 15.

14. After going through the findings of the Enquiry Officer, the Court has taken this view, that, the Enquiry Officer has held the applicant, guilty of misconduct only on the charge of habitual absence, on the dates, which were shown, in the notice of show cause. In other words, the charge of negligence, as found from the report, is not established.

15. Now, what is the habitual absence, which is the charge against the accused.

16. By subsection (4) of Standing Order 15, all that the management has to inform him, of the alleged misconduct, in writing, which the management has shown the applicant, some of the instances, from January, to August, 1983, applicant has remained absent for 46 days. These dates are shown, in the notice of show cause, in details.

17. What possible defence, the applicant has presented, in his explanation, to the notice of show cause. He has admitted his absence, but, due to his mother's illness. At the same time, he has stated, ii) his explanation, to the show cause, Annexure 'B', that, 46 days absenc6 cannot be absence, and, has further said, that, it is not alarming, as the management has taken it.

18. Enquiry Officer also, in the question put to him, has asked him, whether he has anything to say, further, in defence His reply also is in the form of admission, where he stated, that, he undertakes not to repeat it, in future, and admits, that, this was contrary to the rules.

19. By this enquiry finding, the Court has no other conclusion, to reach, when his admission is unqualified, in the form of confession, of his guilt, on the allegations, which he has faced.

20. Mr. Shahani, applicant's representative, has contended, that, the word 'habitual absence' cannot be understood in the present case, when, 46 days absence, in 7 years' service, cannot be said, to be a habitual absence, rather casual absence, which is further supported by the reasons, of his mother's illness.

21. In the first place, the dates of absence, are shown as 6 days in January, 4 days in February, 6 days in March, 8 days in April, 10 days in May, 3 days in June, 6 days in July and 3 days in August. The show cause also, which was given to him, has shown, that he did not give application, even, to the management, to regularise his absence.

22. The contention of Mr. Shahani, as I have stated above, does not appear to me, to be logical looking to the facts, in the sense, that, the applicant has remained absent from January to August, on different occasions. No leave application was made, nor even cared to regularise his absence. His explanation has admitted his absence, but, supported that it was due to his mother's illness. Mr. Shahani has contended, that, habit, implies tendency, or capacity resulting from the repetition of the same acts, which implies frequent indulgences, to such acts, connoting, deprevity of character. He has supported, by reference to 1978 P L D Kar. 368. This decision was in the context of the facts, where the accused was charged under the Sind Crime Control Act, dealing in Charas and liquor.

23. In the first place, it appears, that the facts were distinguishable. Here, the employee is accused of misconduct of his absence in the duty. But, if the habit is understood, in the definition, as he has stated, those absences are not the remote absence, of one or two days absences. These are the series of absence, on all the months of the year, without application of leave. The Court fully endorses the view of the Enquiry Officer. He has reached the proper conclusion.

24. Mr. Shahani has next contended, that, if one charge is not proved, another cannot be established. The Court is of the view, that, the charge, which the applicant was served with, was regarding negligent of work, and the absence. The absence was distinct from the charge of negligence. Unless the charge of absence, very much reacted on the negligent of work, which the management proposed to adduce evidence, the view, that, Mr. Shahani has taken cannot be accepted. The evidence, was brought on the point of absence, by the management, distinct from the charge of negligence on its own count.

25. Finally, the question is of the non-supplying of the enquiry report, or the copy of the proceedings.

26. It is contended that, the applicant, who was aggrieved, did not request for copies of the report.

27. Learned representative is informed, that, the independent enquiry understood in the context of the Standing Order 15, pre-supposes the fulfillment of all legal requirements, which possibly be conceived within the requirements of the rules of natural justice. The Court refers to the decision of Muhammad Younus v. Labour Appellate Tribunal, ( ) PLC 381, and, there is also preference of the case of Punjab Road his Lordships: reparation v. Labour Appella1e Tribunal. It was held by his lordship.

"It stands established on higher authority, that the employer is bound to supply copy of the enquiry report to the worker, before passing final order, on the enquiry against him. Even under Standing Order 15(4), the employer is under legal obligation, to supply the copy of enquiry report."

28. It was further referred, that, as held by the Hon'ble Supreme Court, it was observed, that, not only the respondent should have furnished the copy of enquiry report, but, also should have been given opportunity, to show cause.

29. Admitted fact is, that the copy has not furnished personal hearing was not given. By this non-compliance, the proceedings, from that stage of the conclusion of the finding, were defective, if not vitiate. It is not the case, that, the proceedings were conducted, in mala fide manner. But, the only defect, which is pointed, that, the proceedings, after conclusion, suppose, tile furnishing of copies and the supply of copy of the report and personal hearing. These are the mandatory requirement, because, every one, who is accused of misconduct, is to know, what finding was arrived at, to prefer petition, or review appeal, or representation.

30. In the present case, after the petition is filed, the copy of the enquiry report has been seen by the applicant. He has cross-examined on the documents. He has left no scope; to show, that, he had a prejudice, in the proceedings of the Enquiry Officer. But, if it was the non-compliance, from that stage, and the Court has found, that, personal hearing is necessary, the impugned order is set aside, only to that extent, that the applicant will appear before the management and the employer, within the meaning of the employer, will hear him F personally, and, then pass the order, appropriate to the circumstances when the Court has already held, that, the applicant is guilty of absence, or any order, which the management finds proper, after personal hearing, on satisfaction of his ground of absence.

31. Application is allowed to that extent only.

32. Mr. Mansur Alam has referred: 1984 P L C 632; 1983 P L C 285 and 1983 P L C 882.

33. Mr. Shahani has also referred: P D 1983 S C 314 and 1980 PLC 756.

A.E.

Orders accordingly

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