1. ' SALMAN ANSARI, J.--- This appeal has been filed by the appellant against the impugned order of the learned Sindh Appellate Court at Karachi, dated 2-5-2005 allowing the Application No,41 of 2004 under section 46 of the I.R.O., 2002 filed by the respondent and thereby ordering for reinstatement of the respondent. This appeal has been filed to set aside the impugned order on the ground that from 25-11-2003 up to 18-12-2003 the respondent had remained absent for more than 10 days, hence the charge-sheet for misconduct was given dated 18-12-2003 and was sent through registered post on the address of respondent available on record of the company. The inquiry was held and the respondent conducted his defence and the Inquiry Officer in his report decided to dismiss the respondent from the service of the company, hence dismissal letter was issued dated 26-3-2004. The respondent sent grievance notice on 17-4-2004 which was not valid grievance notice because it was addressed to the Manager of the company and there was no such person with such designation in the company. The affidavit-in-evidence was filed and after recording evidence the impugned order was passed. It is contended that the absence of respondent was continues from 25-11-2003 to 18-12-2003 who was absent without leave for more than 10 days and hence constituted misconduct. No leave application was submitted for which a specific form is provided. The respondent had called Ms. Sofia Zahid as witness who denied that any leave application was granted by the authority, that the respondent had contravened the provision of Standing Order 8 of the West Pakistan and Industrial and Commercial Ordinance, 1968 which provided that workers entitled to leave pass if leave is granted and no such leave pass was issued to Muhammad Riaz to whom respondent claimed to have given the leave pass. That the learned Labour Court had merely observed that it was beyond the circumstances and control of the respondent, as the reasons for his absence which is not relevant as misconduct of absence without leave is complete when there is absence without leave. That the learned Labour Court had erred in concluding that since Railway seat was not available therefore, circumstances were beyond the control of the respondent, hence the findings of learned Court have been challenged by this appeal and the appellant has prayed to set aside the order.
2. ' Heard arguments of the learned counsel for appellant who had placed reliance upon Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 SC 225 in support of his contention. He also relied on Pakistan Dairy Products (Pvt.) Ltd. v. Labour Appellate Tribunal (Sinfih), Karachi 1996 PLC 62, in it was held that the workmen had admittedly remained absent without leave for more than 10 days and thereafter, he has presented medical certificate of the medical practitioner according to which he was suffering from infection, onus of proof would be on the workman who remained absent for more than 10 days and failed to obtain leave during his absence, to show special circumstances which prevented him from obtaining leave. Faiz Ahmed v. Messrs Omega Hosiery Mills (Pvt.) Ltd., Karachi 1993 PLC 151 in which workman who remained away from duty without, leave duly sanctioned his absence was found to be unexceptionable and not open to interference.
3. Learned counsel prayed that the impugned order be set aside.
4. ' Learned counsel for respondent has argued that from the evidence of the witnesses examined curing the enquiry the Enquiry Officer would 4ppear to be prejudiced in favour of the company as the witness of the company Mr. Ziaul Haq had stated that the respondent had never left his duty without giving any intimation during 13 years of service, and further this witness has stated that witness Ms. Sofia Zahid had stated that she had received leave application form from respondent which was relating to the earned leave and also witness Sofia Afzal that she had filled up leave application form of respondent which was relating to the earned leave application. Further the statement of witnesses of the Company were not recorded on oath while respondent had made his statement on oath and placing reliance to 1987 PLC 877 where it was held that "Oath examination of witnesses on oath evidence recorded without oath, held, could not balance in weight with evidence on oath. In 1980 PLC 74 held that Domestic enquiry-evidence-witness must be administered on oath and thereafter evidence recorded in presence of accused written statement already given to management neither recorded on oath nor in presence of accused---Inadmissible---Enquiry upon such statement invalid.
5. ' That the Enquiry Officer was not produced as witness as according to witness Mr. Ziaul Haq has relieved from his post and therefore, affidavit was not brought on record, 6 pages of inquiry report were without any signatures which shows that the pages were manipulated. It was only 25-11-2003 for which because of urgency of Railway booking the respondent had left for his home town and which application was sent to the factory authority. The booking was available for 25-11-2003, the proceedings against the respondent are totally against law which provides that until and unless the case of respondent falls within the ambit of section 15(3)(e) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968 it could not be declared as misconduct on the part of respondent, hence it is clear that the witness had stated that application for leave had been moved by the respondent and had been for the period of 1-12-2003 up to 18-12-2003, therefore, the order of the Labour Curt is just proper as far as reinstatement of the respondent was ordered. The respondent/applicant has challenged the findings in the impugned order where back benefits were not allowed.
6. Heard arguments of the learned counsel. In this case the charges against respondent were that he has left his duty on 25-11-2003 without any intimation or without any grant of leave up to 18-12- 2003, hence he has remained absent without leave for more than 10 days as that amounted to misconduct, a charge-sheet was given on 19-12-2003 and thereafter, enquiry was conducted and the respondent was dismissed from service. The respondent's contentions were that he had applied for leave from 1-12-2003 up to 17-12-2006 and he has left on 25-11-2003 as he was able to get reservation of railway booking. Hence circumstances were beyond his control for having to leave on 25-11-2003. For remaining days, Eidul Fitr was falling from 26-11-2003 to 29-12-2003 and 30-11-2003 being Sunday, the respondent applied for leave from 1-12-2003 to 17-12-2003 which was confirmed from the office by the officer of the appellant Sofia Zahid who had stated that she had endorsed such application moved by the applicant and which application was filled up by the other witness Sofia Afzal as stated before the Enquiry officer. Another witness Ziaul Haq had stated that respondent had never left for leave without prior intimation during 13 years of service, hence in my opinion the respondent had moved application for his leave and which was allowed by the management and it cannot be said that such leave was not granted or respondent had left without intimation. Even other Labour Court considered this aspect of the case and had decided as under:--- "(8) The case of the applicant is that he had applied for leave with the respondent in order to celebrate Eid with his kith kin at his native place. Up to month of December, 2003 it is stated that there were Eid holidays commencing from 27th November, 2003 up to 1st November, 2003 and 27th November, 2003 was general public holiday. According to him, 25th November, 2003 he had intimated the management of the respondent that he would not attend the duties as he had sought reservation/booking on his reach to attend the duties. On the other hand the contention of the respondent is that applicant remained absent from the duties w.e.f, 25th November, 2003 and as such; he was unauthorized absented from the duties. Even respondent-Company have entertained the application of the applicant for leave up to 17th of December, 2003 applied by him.
7. It has come in the evidence that the enquiry was conducted in the matter and the official of the respondent-Company Miss Sofia confirmed that the applicant had applied for leave on prescribed leave form and applicant's said application was forwarded to the leave sanctioning authority after verifying same and observing all the procedural formalities as required by the respondent- management. Since there are admissions on the part of the office of the respondent- management, it is quite obvious that the applicant had very much, applied for sanction of leave on the prescribed leave application form which was duly entertained in the office of the respondents- management. Hence his absence for the said period cannot be termed as unauthorized absence.
8. ' As regards, his absence for the period from 25-11-2003 the applicant has stated in clear terms that things were beyond his reach as he was able to get reservation/booking of the Railway seat in train and the undertook the Railways journey to Punjab. He has stated that on oath that as per past practice he sent intimation through a colleague that he was leaving to his native place by train. His contention is that thereafter Eid holidays commenced with prefix Sunday which was general public holiday. There is no valid and legal ground to disbelieve the version of the applicant stated on oath.
9. As a matter of fact applicant had been working devotedly and regularly with the respondent's company for as much as 13 preceding years with no complaint. The respondent would have taken all these factors in consideration while dealing the applicant with iron hand in these peculiar circumstances. It is, therefore, concluded and determined that the applicant's absence was neither willful nor deliberate and as such, cannot be termed as unauthorized absence."
10. ' I find that learned Labour Court had arrived at the right decision considering the evidence produce by the parties and concluded as under:--- "(9) I have discussed above that the absence of the applicant for few days was not unauthorized, the same cannot be termed as an act of misconduct. Legally, an act of absence sole cannot give birth to an act of misconduct. An act of misconduct is established when there is series of such absence coupled with the past conduct of the applicant that there were strong lapses on the part.
11. Of the worker...."
12. ' That in section 15(3)(e) Industrial and Commercial Ordinance, 1968, misconduct was when as employer committed:--
(e) habitual absence without leave or absence without leave for more than ten days; Hence, the appellant have failed to prove that respondent was habitual in his absence or had remained absent for more than 10 days without intimation. I find no merits in this appeal, accordingly the same is dismissed.