DECISION ' The appellant, who was employed as Assistant Fitter in the respondent mills, was dismissed from service, vide letter, dated 21st February, 1980 issued by the General Manager of the respondent mills, on the charge of remaining absent from his duties with effect from 8th December, 1979. The appellant challenged his dismissal orders before the learned Seventh Labour Court at Hyderabad, which has dismissed the appellant's grievance petition, holding that it had been duly established that the appellant had unauthorisedly remained absent for more than ten days with effect from 8th December, 1979. Aggrieved by this decision, the appellant has come up in appeal to this Tribunal.
2. Mr. Wasiullah Qureshi, the learned representative for the appellant, has assailed the impugned decision of the learned Labour Court on the ground that it had not been established that the appellant was absent from his duties for more than ten days. I find no substance in the contention of the learned representative. The appellant himself has annexed a photostat copy of an application which he made to the respondent mills, stating that he had been absent with effect from 8th December, 1979 and requested for leave upto 22nd December, 1979. This application was made on 17th December, 1979. The application, thus, itself establishes that the appellant at the time of making of the application was absent without leave for ten days and continued to remain absent at least till 22nd December, 1979, There is, however, evidence to show that he continued to remain absent for much longer period. On 6th January, 1980, another letter from the appellant was received by the respondent expressing his intention of resuming his duties. There is an endorsement on the said application, directing that a letter be issued to the appellant to resume duty otherwise disciplinary action would be taken against him. In pursuance of this endorsement a notice, dated 7th January, 1980 was sent by the respondent-Mills to the appellant requiring him to resume his duties at once. The said notice was sent to the appellant by registered post, acknowledgement due. However, the appellant failed to attend his duties in spite of the said notice.
It has, thus, been established that the appellant was absent without leave for more than ten days.
3. It was next contended by Mr. Wasiullah Qureshi that the absence of the appellant was due to circumstances beyond his control as he was ill during the said period. Even if it were to be assumed that the appellant was ill during the said period he should have sent an application for leave which admittedly he did not do till 17th December, 1979. It is an admitted position that the appellant has a brother and the application for leave could have been sent through him if the appellant was so ill as to be unable to send or post the leave application. Furthermore, no evidence was produced by the appellant either before the Enquiry Officer or the learned Labour Court to show that the appellant was ill as claimed by him.
4. It was next contended by Mr. Wasiullah Qureshi that the charge was defective in that it was issued on 17th December, 1979 that is on the tenth day of the alleged unauthorised absence of the appellant. Although the charge is dated 17th December, 1979 but it was served upon the appellant on the following day i,e, 18th December, 1979, As such, when the charge was served upon the appellant has remained absent without leave for more than ten days.
5. It was finally contended by Mr. Wasiullah Qureshi that the orders of dismissal passed by the respondent establishment are invalid in that though the orders were issued on 21st February, 1980 they have been given retrospective effect from 8th December, 1980. I have perused the dismissal orders and find that according to the said orders the appellant stood dismissed from service with effect from 8th December, 1979. It is settled law that such orders cannot be given retrospective effect. Moreover, by the letter, dated 7th January, 1979, the appellant was asked to resume his duties. As such, the orders of dismissal are to be deemed to have taken effect from the date they were issued i,e,, with effect from 21st February, 1980. The appellant would thus be entitled to his emoluments from 8th December 1979 up to 21st February, 1980. With this modification the appeal stands dismissed.