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Writ Petition No. 3752 of 1985, decided on
‑‑‑R.O.15(2)‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 38(3)‑‑Dismissal for absence from duty without leave‑‑Justification and validity of dismissal order‑‑Spectrum of punishment as provided in S.0.15(2) of Ordinance VI of 1968.
An examination of statutory provision of Standing Order 15(2 of Ordinance VI of 1968 demonstrates that the legislature has prescribed a whole spectrum of punishment starting with a milder version of fine and gradually escalating to the maximum penalty of dismissal, which is a pregnant evidence of the intention of the framers of this piece of legislation that the employer has been vested with a discretion to choose the kind of punishment which would justify to meet the ends of justice in a given case. It needs no reminding that this discretion has to be exercised like all other discretionary powers in a reasonable and judicious manner. As a necessary corollary thereof it implies that visitation of quantum of punishment should have the inbuilt corelationship with the degree of blameworthiness of the tub wrongdoer.
‑‑‑S.O. 15 (3) (e)‑‑Constitution of Pakistan (1973), Art.199‑‑Payment of Wages Act (IV of 1936), S.15‑‑Dismissal from service for absence from duty‑‑Maximum penalty of dismissal whether justifiable‑‑Where absence from duty was for health reasons same, held, would not constitute a case of wilful insubordination or indiscipline warranting major penalty‑‑No mens rea attributable to employee as he had applied for grant of leave on medical grounds which stood substantiated on record‑‑Reinstatement in service of such employee by Labour Appellate Tribunal being lawful and valid was upheld by High Court in exercise of its constitutional jurisdiction‑‑Order of grant of 75% back benefits, however., was modified by High Court with full back benefits to such employee subject of deduction of one paisa per rupee out of wages of such employee as contemplated under the payment of wages Act‑ Petition being devoid of merit was dismissed in circumstances.
Ch. Javed Altaf with Khurshid Ahmad Khan for Petitioner.
Ch. Altaf Hussain with Javid Altaf for Petitioner.
Muhammad Zaman Qureshi for Respondent No.l.
Date of hearing: Ist June, 1987.
This petition is directed against the order of the Punjab Labour Appellate Tribunal passed on 24‑8‑1985.
2. Brief facts of the case are that respondent No.1 joined the employment of the petitioner in the year 1968 as a Fitter and while working as Machine Operator in the year 1981, for health reasons, absented himself from duty for a period of more than 10 days, without leave; consequently, the petitioner in the purported exercise of powers as contemplated by the Standing Order 15(3)(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 (hereinafter referred to as the Ordinance), dismissed him from service. Whereupon, respondent No.1, feeling aggrieved, instituted a petition under section 25‑A of the Industrial Relations Ordinance, 1969 (after serving the grievance notice) before the Punjab Labour Court No.2, seeking reinstatement in service which was dismissed on 5‑5‑1985. Respondent No.l, feeling dissatisfied, preferred an appeal before the Punjab Labour Appellate Tribunal, being Appeal No. LHR 334/85,
3. The learned counsel for the petitioner contends that absence of respondent No.l from duty without leave for more than 10 days has been proved, which constitutes misconduct meriting dismissal from service as perceived by the Standing Order 15(3)(e) of the Ordinance; thus the impugned order is without lawful authority. It is further contended that the learned Labour Appellate Tribunal has misread the evidence as to service of notices etc. upon respondent No.1.
4. I have examined the contention of the learned counsel for the petitioner but I am not impressed by the same.
The solitary ground on which the respondent No.l has been dismissed from service is that he remained absent from duty for more than 10 days without leave. A perusal of the record reveals that respondent No.l was suffering from tuberculosis (a disease to which worker in the paper industry easily fall a prey and are susceptible) and had sought leave on medical grounds from petitioner which was refused. Taking the petitioner's case at its best that act of respondent No.l did constitute misconduct, as contemplated in terms of Standing Order 15(3)(e) of the Ordinance rendering him liable to be visited by a penalty as provided by Standing Order 15(2) of the Ordinance then objectively speaking, one is supposed to act rationally within the framework of law. It would be conducive for proper appreciation of the arguments of the learned counsel for the petitioner to look at the scheme of standing order 15(2) of the Ordinance in its appropriate perspective, revealing the true intendment of the legislature.
"15. Punishment:
(2) A workman found guilty of misconduct shall be liable to any of the following punishments:‑
(i) fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), up to three paisa in the rupee of the wages payable to him in a month;
(ii) withholding of increment or promotion for a specified period not exceeding one year;
(iii) reduction to a lower post; or
(iv) dismissal without payment of any compensation in lieu of notice. "
An examination of this statutory provision demonstrates that the legislature has prescribed a whole spectrum of punishment starting with a milder version of fine and gradually escalating to the maximum penalty of dismissal, which is a pregnant evidence of the intention of the framers of this piece of legislation that the employer has been vested with a discretion to chose the kind of punishment which would justify to meet the ends of justice in a given case. It needs no reminding that this discretion has to be exercised like all other discretionary powers in a reasonable and judicious manner. As necessary corallary thereof it implies that visitation of quantum of punishment should have the inbuilt corelationship with the degree of blameworthiness of the wrongdoer.
5. I am afraid this corelationship is not depicted in the instant case when visualized through the, binoculous of nationalism.
In para. 7 of the judgment of the learned trial Court, it is mentioned that there is ample evidence on the record to demonstrate that respondent No.1 is a suspected patient of T.B, and the management had thought him to be a problem, since he was not keeping good health, petitioner deemed it appropriate to shed off the load. This factual aspect has gone unrebutted by the petitioner; thus stands proved. The record speaks of the fact, that absence was for health reasons which is not a case of wilful insubordination or indiscipline warranting major penalty; conversely speaking, I would imagine that petitioner should have acted in a more humane manner.
No mens rea is attributable to respondent No.l in the discharge of his employment and rendering services to the petitioner. I am of the opinion that the learned Appellate Tribunal has rightly reinstated respondent No.1 in service; however, I feel that the part of the impugned order granting 75% of back benefits, in the peculiar facts of the case needs re‑appreciation. Since no mens rea is attracted towards the conduct of respondent No.1 coupled with the fact that he did submit application for grant and execution of leave on medical grounds (which reason stands substantiated, therefore, I hold the view that the maximum penalty that could have been imposed in the instant case is the one contemplated by the Standing Order 15(2)(i), of the Ordinance, which says fine upto three paisa in the rupee of, the wages payable to him in a month. It is worth noticing that the; statutory draftsman has mentioned even this three paisa as the maximum by using the expression "upto" meaning thereby that fine may be lesser than that in a given case. I accordingly modify the order in relation to the 75% back benefits. The petitioner is entitled to reinstatement with full back benefits subject to deduction of fine of one paisa per rupee out of the wages as contemplated under the Payment of Wages Act, 1936, for the actual period of absence without leave.
6. With the .above modification in the impugned order, this writ petition is disposed of; however; there shall be no orders as to costs.
A. A. /P‑13/L
Order accordingly.
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