1. ' MRS. QAISER IQBAL, J.--- Appellant has resorted to file appeal against the impugned order passed by Vth Sindh Labour Court at Karachi in Grievance Petition No,14 of 1999, whereby the respondent No,2 was reinstated in service with full back-benefits.
2. ' Precisely the facts leading to the case are that the respondent No,2 was employed with appellant w,e,f, 21-12-1992, as Junior Assistant, his services were dismissed on 23-12-1999 on the charges of misconduct and habitual late attendance as per charge-sheet dated 30-10-1998, the Inquiry Officer found her guilty of the charges, therefore, she was dismissed from the service, prior to the above charge-sheet, the respondent No,2 was served with charge-sheet dated 23-9-1998, which contained general allegations latter it was withdrawn upon the reply furnished by respondent No,2 .
3. ' It is pleaded by the appellant that the respondent No,2 is a habitual late in attendance she was not entitled to reinstatement.
4. ' After dismissal of the service, the respondent No,2 served grievance notice upon the appellant, the evidence was recorded by the trial Court ultimately arrived at the conclusion that dismissal of the appellant was not warranted under the law.
5. ' Mr. Nafees Usmani, learned counsel for the appellant has bcontended that first charge-sheet was served upon the respondent No,2, containing allegations about the misbehaviour with the other staff of the branch and irregular in attendance, whereas the first charge-sheet was withdrawn and on 30-10-1998, the appellant was served with another charge-sheet from April, 1997 to October, 1998, she attended the office late and was marked absent. It is next urged that the admission of the respondent No,2, before the Inquiry Officer, Miss. Ambar Ashfaq were sufficient to hold that respondent No,2 account, of late attendance in the office was liable to the terminated from service.
6. ' Mr. Gohar Iqbal, learned counsel for the respondent No,2 has relied upon the impugned judgment contended that respondent No,2 has been victimized and the Inquiry Officer has erred in law by recording the admission of the respondent No,2 of attending the office late in the morning, on the basis of whims without her knowledge incorporated in record, in the handwriting of Inquiry Officer.
7. ' I have considered the arguments advanced at Bar and perused the record of the case.
8. ' There is no cavil that first charge-sheet issued to the respondent No,2 was withdrawn later at the instance of Mr. Mir Babar Ali, A.V.P. Dealing with the branch employees and having the charge of the administration marked the respondent No,2 in the attendance register to be late, the respondent No,2 informed about the matter to Mr. Israr Ahmed E.F.U. Of the Staff Union but of no avail.
9. ' The appellant witness Syed Shahid Hussain had admitted that first charge-sheet was dropped pertaining to the misbehaviour and the late attendance. There appears no justification on the part of the appellant, to issue another charge-sheet for late attendance by the respondent No,2, from April, 1997 to October, 1998. The entire case Was set up by the appellant's employee Mr. Mir Babar Ali but unfortunately despite of the wide allegations against him of harassment was neither examined nor the Inquiry Officer was produced though their affidavit-in-evidence were filed to adjudge whether the inquiry was impartial particularly when the respondent No,2 has pleaded guilty before the Inquiry Officer. The respondent No,2 on account of being pregnant remained absent for 15 minutes sometime with prior permission of the Administration Incharge she had applied for maternity leaves as admissible under the law but the application was not granted by Mr. Mir Babar Ali A.V.P. With ulterior motives and was sent to the Head Office without having granted the same. For the purpose of determination of the overall performance of .The respondent No,2, the entire record was required to be reviewed before issuance of the charge-sheet of constitution the factum of misconduct being habitual absentee without leave there appears to be no justification after the first charge-sheet was dropped in September, 1998 to reopen the previous record from April, 1997. The intention of the Legislature appears to provide the double check up one in the form of domestic inquiry to be held by the employer and in other form of judicial determination by the Court itself, I am constrained to hold that without producing the Inquiry Officer and the Administrator of the Branch Office Mr. Mir Babar Ali the question agitated by the appellant could not be resolved.
10. ' Adverting to the factum as to the ingredients of constituting misconduct reliance is placed on Standing Order 15(3) Ordinance, 1968 (W.P. Industrial and Commercial Employment) reproduced herein below for the sake of convenience:-- "(3) The following acts and omissions shall be treated as misconduct:-
(a) wilful insubordination or disobedience, whether along or in combination with others, to any lawful and reasonable order or a superior; (1)) theft, fraud, or dishonestly in connection with the employer's business or property;
(c) wilful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous to disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (1);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(1) go-slow.
11. ' It is abundantly clear from section 15(3)(e) that simple absence without any habit or deliberate intention is not a misconduct only wilful and habitual absence from duty without leave to be treated as misconduct and simple absence not clothed with the habit of that kind or any conduct of absence or deliberateness on the part of the employee could not be constituted as misconduct.
12. Reliance in this context is placed on the case of Pakistan Petroleum Limited Karachi through Manager Human Resources and another v. Javed Iqbal 1988 PLC 273.
13. 'In any view of the matter, the adverse finding of the Inquiry Officer cannot be upheld and the adverse action by the employer against the respondent No,2 could not be termed as justifiable and sustainable in law and equity. The respondent No,2 had denied the charge of the late attendance of the office raised serious allegations against the Administrator/Head of the sub- office, and Inquiry Officer, therefore, impugned judgment does not require interference, which is sustainable in law.
14. ' Having regards the above facts and circumstances, impugned order is hereby upheld appeal filed by the appellant, is hereby dismissed.
15. ' These are the reasons of the short order dated 29-11-2006, whereby the appeal was dismissed.