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Application No. 148 of 1985, decided on 12th April, 1986.
‑‑‑ Domestic enquiry‑‑Notice of‑‑To be given to accused at address within knowledge of management‑‑All possible steps to be taken to apprise employee to appear in domestic enquiry.
‑‑‑S.O. 15(3)(e)‑‑Misconduct‑‑Absence of more than 10 days‑‑Absence whether intentional or due to reasons beyond control of accused‑‑Question of fact requiring findings by Enquiry Officer in domestic enquiry.
‑‑‑Requirements‑‑Enquiry officer was required to confine enquiry to facts in issue only and give finding independently, with due regard to fact that in cases of charge‑sheet against enquiry, as part of administration officials, trust reposed upon him required fair and just findings in administration of justice.
M.L. Shahani for Applicant.
Kamal Mansur Alam for Respondents.
Nazir Ahmad Mallah has filed application under section 25‑A Industrial Relations Ordinance, 1969 for seeking directions to the effect that the finding given in an ex parte enquiry, dismissing from the job of which he was the confirmed employee is illegal and also directions be issued to the management to re‑instate him with all the back benefits and the continuity of service.
2. Applicant was employed on 20‑11‑1978 and was presently working, as Crane‑driver in the respondent establishment.
3. On 15‑4‑1985, notice of show‑cause was issued against the applicant showing his absence from more than 10 days from 1‑4‑1985.
4. Applicant had also sent an application for earned leave due to his wife's sickness which was said to have been received on 15‑4‑1985.
5. Applicant did not receive any intimation regarding enquiry and was dismissed.
6. Respondent has filed written statement through Senior Manager Law and contended that several notices of enquiry were sent to the applicant at the address given by him and those appear to have been received by the applicant as a due notice of enquiry.
7. Respondent except this defence, has taken no other specific plea except certain denial and disputing the relationship of employer and employee after dismissal.
1. There are two notices of considerable interest which are to be read as part of the proceedings. One is the show‑cause notice, and second is the dismissal order by which the concluding paragraph shows that applicant Nazir Ahmed's unauthorised absence period is treated as absence (with leave) i.e. 12‑5‑1985 to 15‑6‑1985 (33 days) 23‑6‑1985 to 30‑6‑1985 (08 days).
2. Earlier paragraph of the dismissal order shows that he was un-authorisedly absent from 1‑4‑1985 to 20‑4‑1985, which was the basis on which the dismissal order was issued.
3. The notice of show‑cause shows that he was charged for absence without leave for more than 10 days from 1‑4‑1985 and was guilty of misconduct under S.O. 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968.
4. Third letter has come on the record which is the reply to the dismissal order in the nature of grievance notice. In this it is explained that enquiry was conducted in absence without notice of service. The Enquiry Officer did not care to serve notice even on duty on the date of enquiry.
5. In third paragraph, he has contended that he received the message from his home regarding his wife's illness. He proceeded for home and made application for grant of 10 days leave from 1‑4‑1985 to 18‑4‑1985. Leave application was acknowledged, yet the enquiry was initiated with mala fide intention.
6. In the last paragraph, he has contended that if he remained away for couple of days, he has explained that incident of tragic nature of death of his daughter occurred suddenly, yet he did not receive leave in spite of the submission of death certificate.
7. No reply was given of this grievance notice and the applicant had to file application in the Labour Court for seeking Court's indulgence.
8. Court also further refers the application of Nazir Ahmad which is sent to the management showing the date of 3‑4‑1985 which was received on 15‑4‑1985. It is not known whether it was sent by registered post or by personal delivery or. it was delayed or it was received late.
9. The contention of the applicant is that his wife was seriously ill and, therefore, he had to go to Larkana. He may be granted 18 days leave from 1‑4‑1985 to 18‑4‑1985.
10. He has also explained in more clear words that his address of service should be as follows during holidays:
Post Office Bengal Dero, District Larkana".
11. The Court also further refers the finding of the ex parte enquiry where he has been given the finding that he remained absent from duty from 1‑4‑1985 to 10‑4‑1985.
12. The Enquiry Officer has shown that show‑cause notice, dated 15‑4‑19 5 was issued to him on his residential address available on his personal record. His third point which he has discussed, he has written that Nazir Ahmad applied for grant of earned leave from 1‑4‑1985 to 18‑4‑1985 vide his application, dated 3‑4‑1985, which was received on 15‑4‑1985.
13. His fourth point of discussion was that he remained absent from duty from 1‑4‑1985 and first time resumed duty on 21‑4‑1985.
14. Finally, the Enquiry Officer had directed Nazir Ahmad to appear before him on 9‑5‑1985, but he did not appear before the Enquiry officer.
15. Besides these documents, Steel Mill Management has also brought the show‑cause notice of earlier date of 11‑2‑1985 RW/1 to show that he was absent from duty in the year 1984 also and, therefore, by habit he is absent.
16. Previous record of Nazir Ahmad indicates of his habitual absence as the past misconduct. It fellows that his record as is presented is not pleasant but the point in issue before the Court is not of the habitual absence because the Court is to confine to the notice of show‑cause that he remained absent from 1‑4‑1985 without proper authorisation.
17. This is precisely the charge against the applicant. It appears that previous habitual absence either was regularised or no charge‑sheet was given, to have any idea about his absence and to the warnings.
18. Presently the position is admitted on the record bf the management and the ex parte enquiry was conducted against Nazir Ahmad and the reason of the ex parte enquiry was that he remained absent in spite of service of notice. In this context both parties have been examined in the evidence. Mr. Nazir Ahmad Memon who appeared On behalf of the respondent has made certain observation in the cross‑examination which the Court refers prominently:‑
"We have not given notice of show‑cause for the period of absence in the month of May and June, 1985. I see show‑cause notice, dated 15‑4‑1985. There is no mention of habitual absence in the notice. In the dismissal order, there is mention of unauthorised absence of May and June, 1985. I see the address in the dismissal order which is of District Larkana. Enquiry Officer might have sent the letter. I do not know on which date the notice was received.
19. The second witness is Mr. Azmatullah Khan on behalf of the respondent. His evidence to the extent of relevancy of the point in dispute refers the following extracts:‑
"I do not know whether the applicant had given the address of Larkana. We have sent notice at the Karachi address in Steel Town. I do not know whether the reply of show‑cause notice was shown to me during the enquiry. I conducted enquiry on 9th May, 1985. He did not appear. Fresh enquiry notice was sent to him which was not served. It was sent by post. I do not know whether it was served or not. No notice was sent at the address of Larkana. I cannot produce the documentary proof that on the date when I recorded statement of witnesses."
20. In the first place, the Enquiry Officer's efficiency and fairness could only be gathered from the circumstances that with what sincerity he conducted the enquiry and what were his duties. The evidence of the Enquiry Officer when the Court had examined, is itself an answer to the efficiency of the Enquiry Officer. He is not in a position to convince the Court that when he recorded statement of witnesses. It shows that if the Enquiry Officer is not in a position to remember the dates of the recording of evidence, his fairness to both the sides is under the impeachment. The Enquiry Officer who is judge of the fact and is entrusted with the responsibility of giving the decision is not only to remember the actual facts what transpired but also to give assistance to the Court in reaching the just conclusion.
21. The second aspect of the matter is that on one hand Nazir Ahmad has contended that he was not served on the address of District Larkana. Mr. Muhammad Fahimuddin has also admitted this position in para. 2 of R.W./3 on page 12 that show‑cause notice was issued to him on his residential address available on his personal record.
22. If the reply of the show‑cause notice which is at page 319 of this Court's record if has explained that his absence was due to wife's illness and sudden departure for which he had given the application to someone who submitted application late on 15‑4‑1985, this reply to the show‑cause notice is, dated 22‑4‑1988 and on 27‑5‑1985 applicant was directed to appear before the Enquiry Officer. It follows that the show‑cause notice reply and its contents were within the knowledge of the Enquiry Officer and the administration officials regarding the illness of the wife of Nazir Ahmad and sudden departure for Larkana. Whether the administration officials ignored the requirement of the serving of notice at the address when he was not available in Steel Town address. It is no doubt true that the employee is to be served on the address what he has given to the management or even to be served on duty. There is no hard and fast rule that 'he must be served at Larkana because he had given the address of Larkana. The question is of the knowledge of the fact which he possessed whether by address of Steel Town where he resided or at Larkana address but in each case the circumstances are to be seen what possible steps were taken by the management's officials to apprise him of the situation that his reply was not found satisfactory and he must appear. If the administration officials were fully in the knowledge of the fact that he was at the Larkana address available to be served which otherwise the address of Steel Town could not serve the ends of justice due to his non‑availability few words of telegram could apprise him of the date of enquiry to face the charge‑sheet. So it is the question of the knowledge. If the reply of the show‑cause notice is clear that he left for home due to sudden illness of his wife the Labour Court is of the view that notice should have been sent on the Larkana address.
23. The third aspect of the matter is whether he remained absent for more than 10 days from 1‑4‑1985. There are two versions. Nazir Ahmed had stated that he had sent the application immediately after he left through someone but it reached late by the time the enquiry was completed. If the fact was within the knowledge of the management that his wife was not well he was to be heard to explain his position that who was the person through whom he sent the application and where is the death certificate as he has explained in the grievance notice that his family member expired. These are the questions of the fact which unfortunately will leave the scope if ex parte decision is given, where there will be no judicial satisfaction to both sides, unless the matter, is brought before the Enquiry Officer in clear perspective. It must be accepted, that in the course of human experience; these tragedies of illness, do occur and are to be explained try the applicant whether his absence was beyond his control then, it was for the Enquiry Officer, to give the finding and the administration officials either to consider whether his leave was due or he left without permission which was against the rules of discipline, to call for punishment within the meaning of Standing Order 15.
24. Mr. Shahani representing the applicant has referred to the notice of 30‑4‑1985 to show that this signature is not the signature of the applicant regarding service of Steel Town address. This, according to him is not confronted in the evidence and, therefore, it does not form part of admissible evidence.
25. The Court has examined this notice and seen the similarity of signature on his petition before the Court and the signature on the notice. The signature appears similar to that of petition except that certain variation in the last letter of his name which has shown his signature is on the record. But since the Court is not satisfied with the fact of the knowledge that notice was served at the address of Larkana, when he was not available at the address of Steel Town and there is suspicion, about the credibility of the signature, as contended by Mr. Shahani. This factual aspect is also to be examined and cross- examined before the Enquiry Officer to give the decision on merits, when both parties have put up their versions. The point in issue will be whether his absence was intentional. Whether he sent the application in time and who was the man through whom this application was sent which reached late before the Enquiry Officer. With this finding the Court has reached this conclusion that the Enquiry Officer will give chance to Nazir Ahmed to cross‑examine the witnesses and to produce the defence if he so desires to give after the nomination of the choice of co‑worker to defend him. The Enquiry Officer is at liberty to come to any conclusion, he desires on the basis of the evidence to meet the requirements of justice for the Court again to examine the propriety of the decision both on fact and law.
26. The inquiry Officer will confine to the fact in issue only and give the finding independently with due regard to the fact that in cases of charge‑sheet against the enquiry he is also the servant of the administration officials and, therefore, the trust is reposed upon him to give what is fair and just in the administration of justice.
27. This is also to point out that section 15 of Standing Orders in clause (e) of subsection (3) provides that following acts and omissions shall be treated as misconduct:
(i) Habitaul absence without leave or absence without leave for more than 10 days."
The absence without leave for more than 10 days is a question of fact, whether the absence was intentional or unintentional and beyond the control as in the human relationship. Of course absence without leave is against the rules of discipline. Each case is to be examined on its own facts based on the convincing evidence whether there was compelling reason to leave for home in such incident of illness of family nature. At the same time, regard is to be given, whether by the absence of the man, loss occurred to the management.
28. In the result .the enquiry be disposed of if the management desires as early as possible. Nazir Ahmad has the notice of the Court's directions on the announcement of the decision and, therefore, he has to appear without any adjournment to give convenience to the administration officials to complete the enquiry.
29. Enquiry Officer will discharge the trust of conducting fair enquiry. The dismissal order is‑set aside.
A.E. Order accordingly.
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