1. MD. NURUL ISLAM KHAN (CHAIRMAN).-.This is an application under section 25(l)(b) of the. East Pakistan Employment of Labour (Standing Orders) Act, 1965, which will be hereinafter referred to as the Act.
2. The case of the first party is that he was employed as a Clerk, Grade II, on 20-10-1967. His last pay was Rs. 190.00 on 24-4-1970 on which date the second party illegally and arbitrarily dismissed him in violation of the legal principles. There was no enquiry into the allegations and no opportunity was given to him to explain his conduct and to defend himself. He was put under illegal suspension from 1-11-1968 right up to the dismissal that is, for a period of 18 months without any valid and lawful ground. During the period of suspension the first party was granted subsistence allowance only at the rate of --th of the basic salary that is, Rs. 25'00 whereas he was entitled to get subsistence allowance at the rate of 50 per cent. of his gross salary for 60 days and thereafter he was entitled to get full wages for the entire period of suspension. The first party was arrested by Police in, connection with introducing an account in the Bank and a case of fraud committed by the said account holder. He was detained m jail custody to the knowledge of the second party and as such the question of unauthorised absence without any information did not arise. The Police case is still pending and the first party was not convicted by the Court. In the mean--time the second party dismissed him. He has sent a grievance notice by registered post. But the second party neither redressed his grievances nor favoured him with any reply or personal hearing. Hence the prayer for directing the second party to re--instate him with all back wages and other legal dues.
3. The second party entered into appearance and submitted written statement in which they stated, inter alia, that the first party has no cause of action he was duly charge-sheeted and enquiry was held by a senior officer of the bank and adequate opportunity was provided to him for giving his defence. Though asked for, he could not produce Mr. Siddiqur Rahman at whose request he introduced the account of M. A. Bari. He was taken into custody on 18-7-1968 and was released on bail on 19-9-1968. But he failed to turn up within 10 days of his release and did not apply for leave for this absence. He neither joined his office till 31-10-1968 nor even cared to inform the second party the reasons of his absence from 18-7-1968 to 19-9-1968 and from 19-9-1968 to 31-10-1968. As such he was guilty of misconduct. In view of the Court proceedings he might have been kept under suspension for more than 60 days. For all these reasons his case should be dismissed with costs.
4. Point for determination in the present case is whether the first party was illegally dismissed and what relief, if any, is the first party entitled to.
5. FINDINGS AND DECISION It appears from the dismissal letter that he was dismissed for his unauthorised absence for more than 10 days particularly from 19-9-1968 to 31-10-1968. This was more than a month. The ground forwarded by the first party is that he was in custody. But it has been ascertained for sure that he was taken into custody on 18-8-1968 and he was granted bail on 16-9-1968 and he was finally released on 19-9-1968. So it appears that he availed of unauthorised absence during the period from 19-9-1968 to 31-10-1968. The incumbent was then suspended on 1-11-1968, charge-sheeted on 4-11-1968 and an enquiry was made and he was finally dismissed on 21-4-1970. He submitted his grievance petition on 1-5-1970. Now the first party has no explanation for this unauthorised absence particularly from 19-9-1968 to 31-10-1968. He wrote a letter to the Chief Manager of the Bank stating that he was in jail custody from 18-7-1968 to 31-10-1968, and as such he was not in a position to make any application for leave. During this period he did not submit any leave appli-- cation which he could do even from the jail. The first party admitted here that he was released on 19-9-1968, but he did not explain why he did not report for duty between 19-9-1968 and 31-10-1968.
6. He had already submitted a false explanation that he was in jail during this period. The other ground of suspen--sion or charge-sheet has not been pressed for the present action of dismissal by the second party in view of the fact that the case is now in Court and has not been decided as yet.
7. The employer had a right to take departmental action for any other charge other than the charge covered by the Court proceeding. The first party remained on unauthorised absence from 18-7- 1968 to 31-10-1968 during which period he did not submit any leave application or give any information to the second party. He also did not report for duty even when he was out of jail and could be available for duty. Therefore, I find that the proceedings were quite alright. There, was an enquiry and no substantive injustice has been done to the first party. The period of suspension might extend beyond 60 days under section 18(2) of the Act and during suspension period a worker is entitled to half of his average wages including dearness allowance as per proviso to subsection
(1) of section 18 of the Act. The employer has really committed injustice to the first party by giving him only --th of his basic pay.
8. Therefore, the case is allowed in part on contest but without costs. The order of dismissal of the first party is upheld as being legally justified. But it is directed that the first party should be given subsistence allowance at the rate of half of his average wages including dearness allowance for the period of suspension starting from 1-11-1968 up to the date of his dismissal that is, 21-4-1970 minus the amount already paid. The second party is directed to calculate and deposit --th amount in Court within 30 days from the date of this order.
9. I have considered the written opinion of the members while giving this judgment.