' The facts giving rise to present grievance application filed by applicant Muhammad Rafiq are briefly given as under :- ' The applicant had been permanent Conductor at the Orangi Town Depot of Karachi Transport Corporation, Karachi, having Conductor Token No, 3258. It is further alleged that he has been General Secretary of the Karachi Transport Corporation Workers' Union which is Collective Bargaining Agent. The case of the applicant is that on 19th August, 1970 be was arrested by Ferozabad Police, under section ?81, Cr. P. C. Of the complaint of the respondent-organization and was released on bail by the S. D. M. Central on 30th August, 1975. Applicant was re-arrested by Ferozabad Police under M. L. R. 9 on the basis of a F. I. R. Lodged by the Managing Director of K. T. C.
Relating to the same incident. The applicant was tried and convicted by the Summary Military Court and sentenced to undergo R. I. For one year and 10 aisle, The applicant remained in Jail from 25th September, 1979 to 1st September, 1980 and was finally released on 1st September, 1980, It is alleged by the applicant that the respondents were fully aware that the applicant has been in Jail custody since 25th September, 1979 to 1st September, 1980 and that he had also sent an application from Jatl requesting the respondent to grant him leave of absence.
2. The case of the applicant is that on 1st September, 1980 be was released from Jail and on 3rd September, 1980 he reported for duty vide 0.11- Annexure "A". On 10th September, 1980 the applicant received a letter from respondent No. 1 alongwith a copy of letter written by the respondent No, 2 wherein for the first time the applicant was informed that his services have been dispensed with. Thereupon on 4th October, 1980 the applicant sent grievance notice under section 25-A of Industrial Relations Ordinance, 1969 (Annexure "A"). But the respondent did not pay attention to that notice, nor any reply was received.
Hence the applicant filed the present application with prayer that the respondent be directed to re-instate him in service with full back benefits.
3. The averments made by the applicant have been vehemently resisted by respondents in their joint reply statement. It is maintained that the applicant intentionally remained absent from duty without any information since 25th September, 1979. It is further argued that the services of the applicant were terminated after observing all the legal formalities. It was denied that the applicant was shunted out as a result of his Trade Union activities. Legal objection in regard to the service of grievance notice under section 25-A of I. R.
0., 1969 was also raised, similarly it was contended that the applicant was not a workman, hence he could not invoke the jurisdiction of this Court.
4. In support of his contentions the applicant filed his affidavit Exh. 3, as also the affidavit of Muhammad Ayub Exh. 4 was filed in support of the applicant.
5. On behalf of the respondent the affidavit of Syed Aziz Ahmed Exh. 5 and N. A. Bashir Exh. 6 were filed.
6. All the witnesses were cross-examined by the respective counsel of the parties.
7. After hearing the arguments addressed by the learned counsel and after applying my mind to the evidence available on record, I have come to the following conclusion.
8. First I take up the objection that proper grievance notice has not been served by the applicant on respondent No. 1 who was the District Manager of Organization Depot. The learned counsel for the respondents submitted that respondent No. 1 being District Manager of the Orangi Depot was the "Employer", and in the view of the existing law it was mandatory for the applicant to serve proper grievance notice on respondent No. 1 before invoking the jurisdiction of this Court. The grievance notice available on record is Exh. 1-C. It is addressed to the Managing Director, K. T. C., but the marginal Endorsement indicates that it was delivered at Orangi Depot and was received by the office Assistant of Respondent No. 1. This fact is also admitted by Mr. M. A. Bashir, Secretary, Karachi Transport Corporation, who in his cross-examination admitted that test grievance notice Exh, 1-C was received t the Qrarli Depot,
9. Admittedly the Managing Director is the Head of the K. T. C. And respondent No. 1 1. e. The District Manager Orangi Depot works under him. This being the fact that the grievance notice Exh. 1-C. Has been addressed to Managing Director K. T. C. Is of no material consequences looking to the fact that it was duly received by the Office Assistant of the Respondent No. 1. This being so I do not see any force in the contention raised by the learned counsel for the respondents. The authorities, namely 1979 PLC 287, 1980 PLC 746 and 1980 PLC 759 quoted by learned counsel for the respondents on the point of the service of grievance notice are, therefore, not applicable to the facts of the present case. In my view proper service of grievance notice has been effected on respondent No. 1 as the same was duly received by his Office Assistant.
10. Now I come to the merits of the case. The charge-sheet Exh. 5-D disclosed that the applicant was absent from duty without any intimation since 25th September, 1979 and that the show-cause notice could not be served on him, hence he was asked as to why disciplinary action should not be taken against him. According to the respondents the said charge-sheet could not be served on the applicant as such after ex parte enquiry his services were terminated. Thus the ground on which the applicant has been dismissed is that he remained absent without any intimation since 25th September, 1969.
11. The charge-sheet is dated 24th September, 1980 and it has been attacked by the learned counsel for the applicant on the ground that it is time barred. In this connection Mr. Khalil-ur- Rehman the learned counsel for the applicants pointed out the provisions of sub-clause (4) of Standing Order No, 15 of the Standing Orders Ordinance, 1968 whereby it is laid down that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer. He further submitted that the same view has been expressed by the Division Bench of or High Court, is a case reported as 1972 PLC 249. He also placed reliance on the decision of Labour Appellate Tribunal, Punjab reported as 1977 PLC 708 wherein it is held that charge-sheet served after one month of alleged misconduct is barred by time, and subsequent enquiry proceedings stand vitiated.
12. There is much evidence to show that the alleged misconduct of the present applicant in remaining absent without leave started from 28th September, 1979 and remained so till 8th September 1980 when he reported for duty after his release from Jail custody. Since the misconduct started on 25th September, 1979 hence in view of above-quoted legal provisions the charge-sheet was to be served on these applicants within one , month I. e. 24th October, 1979.
Admittedly the present charge-sheet Exh. 5-D was issued on 24th April, 1980 and on the face of it the same is time-barred, unless the respondents prove that they were unaware of the absence of the applicant since 25th September, 1979.
13. In order to see if the respondents were unaware of the absence of the applicant, I have carefully perused the evidence on record. There is strong evidence to show that the respondents were fully aware of the absence of the applicant since 25th reptebnets, 1979. Admittedly the applicant was not a common worker but he was general Secretary of K. T. C. Union. It is admitted by Respondent No. 1 Mr. Aziz Ahmad in his cross-examination that the applicant in the capacity of General Secretary of the Union used to meet him off & on in regard to the grievance of the workers. He further stated that he did not make any enquiry as to why the applicant did not meet him for a span of seven months. Even otherwise it is surprising that a permanent conductor I. e. The applicant remained absent without any intimation for a period of seven months and no report was made to Mr. Aziz Ahmed. Respondent No. 1, who happened to be the District Manager, Orangi Depot at the relevant time. There is a report Exh. 5-A which indicates that on 4th April, 1980 Respondent No. 1 was informed obout the absence of the applicant. It appears that the report Exh, 5-A has been prepared with a view to bring the charge-sheet Exh. 5-D within legal ambit. The allegation that the respondents were aware of the absence of the applicant since 25th September, 1979 is supported by other evidence as well. The documents on record namely the F. I. R. Dated 19th August, 1979 Exh.
3-C. Statement of the Respondent No, 2 Mr. M. A. Baseer before Summary Military Court Exh. 3-D).
Order of the Hon'ble Judge of the High Court on a Constitution Petition filed against the conviction of the applicant Exh. 3-E and the case Certificate of the jail authorities dated 22nd September, 1980 Exh. 3-0 show without an iota of doubt that the applicant was at the first instance arrested by Ferozabad Police on 19th August, 1979 under section 107-151 Cr. P. C. On the basis of report made by Managing Director, K. T. C. Subsequently the applicant was released on bail by the concerned S. D.
M. But again on the basis of the same report he was arrested on 25th September, 1979 under Martial Law and was tried and convieted by the Military Court. There is no denying the fact that respondent No, 5 Mr, Baseer, Secretary K.T.C. Appeared as a witness against the applicant before the Military Court, and that the Managing Director, K. T. C. Was respondent in the constitution Petition filed, in the High Court against the conviction of the applicant by Mr. Muhammad Ayub, President of K. T. C. Union. The Managing Director was represented by Mr. Raza Hyderi, Advocate, and the Aon'ble Division Bench of the High Court had stayed the punishment of lashes awarded to the applicant by the Military Court. The certificate Exh. 3-D issued by the Jail Authorities clearly indicates that the applicant remained in Jail custody from 26th September, 1979 to 1st September, 1980. Furthermore it is admitted by Mr. Aziz Ahmad in his cross-examination that show-cause notice Exh. 5-D/2 was returned by the postal authorities with the endorsement that the addressee viz applicant was confined in Jail. Similarly the charge-sheet sent to the applicant on his home address was returned by the postal authorities with the same endorsement. Mr. M. A. Baser Respondent No, 2 has also admitted in his cross-examination that he had appears before Martial Law Officer in regard to the proceedings against the applicant Muhammad Rafiq. He admitted -- that the statement Exh. 3-D recorded by Martial Law authorities bears his signature.
14. Thus it is evident that more than sufficient circumstantial and documentary evidence exists to show that respondents had full knowledge, that the applicant was in jail since 26th September, 1969 to 1st September, 1980 and that his absence was neither wilful nor under his control.
15. Mr. Khalilur Rehman learned counsel for the applicant submitted that third arc puincrous Ahoritiel which lay down that whP,r9 workman remains absent due to the circumstances beyond his control, there is no justification of ex porte proceedings against him. For instance he quoted 1975 PLC 278 whereby it is held by N. I. R. C. That while the workman was in Police custody, ex parte enquiry proceedings were not justified. Similarly in 1975 PLC 104 it is held as under "Absence from duty without leave-Workman detained police in connection with investigation against his brothers and even not 44b. Allowed to inform his employer-Dismissal after enquiry in which Workman did not participate due to circumstances beyond his control in circumstance, held, unwarranted and re-instatement upheld."
16. Similar view has been taken in 1977 PLC 565.
17. Another circumstance goes in favour of the applicant i. e. The fact there has been no publication of the charge-sheet in any of the news papers. It is held by various superior courts that the proper course when the registered notice to come back unserved would be to publish notices in the name of workmen in a newspaper having large circulation.
18. In this view of the matter I have come to the conclusion that the dismissal of the applicant from service by the respondent is not in accordance with the legal requirement. I am also of the view that the charge-sheet Exh. 5-D is time barred, as such the subsequent proceedings E against the applicant stand vitiated, The result is that I hereby allow the present application under section 25-A of Industrial Relations Ordinance 1969 and direct the Respondents to reinstate the applicant in service with full back benefits. order set aside