DECISION By a decison, given on 7th April, 1981 the learned Labour Court has partly allowed the grievance petition of workman, Sultan Muhammad, to whom I will refer as the 'workman', and directed the Pakistan Engineering Co. Ltd. To which I will refer as the company, to reinstate the workman, but has denied the workman's prayer for grant of back benefits to him. Both the company and the workman have preferred appeals to this Tribunal against the said decision. The company's appeal is against the direction of the learned Labour Court for the reinstatement of the workman while the latter's appeal is against the rejection of his claim for the award of back benefits.
2. As has been pointed out by the learned Labour Court in its decision this case had had a chequred history. It appears that on 8th October, 1976 the workman, who was employed in the Company as a Furnace man, applied for thirty days leave with effect from 11th October, 1976 to 9th November, 1976. According to the Company, the leave applied for by the workman was refused.
However, to the refusal of the leave asked for was not communicated to the workman, as according to the company he had left the premises of the Company on 9th October, 1976 before the close of his duty hours. The workman admittedly remained absent from his duties up till 9th November, 1976 when he reported for duty and submitted an application to the Management, explaining that he had suddenly left for his native place without waiting for his leave application to be sanctioned as he had received two telegrams from his home town regarding the illness of his wife. In this application he requested that he should be forgiven and prayed that he would greately appreciate if he was granted leave and restored to his duty. The management, however, charge- sheeted the workman for remaining absent from his duty without leave for a period exceeding ten days and a domestic enquiry based on the above charge-sheet followed. In that enquiry, Foreman Muhammad Din and the lncharge of the Rolling Mill and Stock Yard, S. A. Sattar, were examined and also the statement of the workman was recorded. On the basis of the Enquiry Officer's report, who found the workman guilty of the charge levelled against him, the workman was dismissed from service by order, dated 26th June, 1980.
3. The workman challenged the order of his dismissal before the learned Third Labour Court where the plea taken by the workman was that he had been orally granted leave by Foreman Muhammad Din and on the strength of such permission he had left for his native place. The learned Labour Court was of the view that there was no proper domestic enquiry and that further it had not been established that the copies of the enquiry proceedings and the enquiry report were furnished to the workman and accordingly directed re-instatement in service of the workman. The company preferred an appeal to this Tribunal and my learned Predecessor, by its order dated 7th September, 1977 allowed the appeal of the company and remanded the case for disposal on merits.
4. On remand, the case came to be heard by the learned First Labour Court, which also directed the reinstatement in service of the workman, but without back benefits. This time, both the parties preferred appeals to this Tribunal by its order, dated 18th May, 1980, This Tribunal upheld the order of reinstatement in service of the workman but at the same time gave an option to the Company to proceed against the workman from the stage at which the invalidity had occurred, namely the failure to supply the workman a copy of the Enquiry Officer's report.
5. The Company in accordance with the orders of this Court, furnished a copy of the Enquiry Officer's report to the workman, alongwith a fresh second show cause notice, and thereafter fresh orders of dismissal were passed in respect of him on 26th June, 1980. The workman once more challenged these orders before the learned Third Labour Court which has given the decision that is the subject matter of the two present appeals.
6. I have heard Mr. S. M. Yaqoob, who appeared for the Company, and Mr. A. G. Malik, Advocate, who represented the workman.
7. It is submitted by Mr. S. M. Yagoob that the learned Third Labour Court has directed the re- Instatement in service of the workman solely on the basis of its opinion that the leave applied for by the workman was orally sanctioned by Foreman Muhammad Din. The learned Representative, however, contended that the learned Labour Court was not entitled to go into this issue as it stood finally disposed of by the previous decision of the learned First Labour Court, dated 26th March, 1980 which finding of the learned Labour Court was not disturbed in appeal. Now, although the learned First Labour Court had discussed the plea of the workman that he was orally granted leave by Foreman Muhammad Din, as also the evidence on this point, including the evidence led before the Enquiry Officer, it considered that the enquiry proceedings were invalid as a copy of the Enquiry Officer's report was not furnished to the workman. Furthermore, as pointed out in the earlier part of this judgment appeals were preferred by both the parties, against the said decision of the learned Labour Court, and this Tribunal, vide order, dated 18th May, 1980 while upholding the decision of the learned Labour Court regarding the reinstatement of the workman, had granted an opportunity to the Company to supply a copy of the Enquiry Officer's report to the workman and thereafter to proceed further against him on the original charge. As such, it cannot be said that there was a finding by the learned First Labour, Court in favour of the Company which had attained finality. In view of this position, the decisions in the cases of Nawab Syed Raunaq Ali v. Chief Settlement Cownisioner and Bantwa Memon Khishmat Corn, mince v. Rehmatullah sought to be relied upon by Mr. S. M. Yacioob in support of his proposition that the workman was debarred from , questioning the issue whether in fact he had been orally granted leave by foreman Muhammad Din, are inapplicable to the facts of the present case and of no assistance to the Company.1 2
8. This brings me to a consideration of the main issue in the case which is whether in fact there is any tangible evidence to show that the workman was granted oral leave by Foreman Muhammad Din, and hence cannot be considered to have remained absent without leave. The learned Third Labour Court has referred to the contention of the workman that Muhammad Din had orally sanctioned the leave applied for and has observed that he does not find any reason to disbelieve this assertion. The learned Labour Court was influenced in coming to this conclusion by the circumstance that though a leave was applied for by the workman on 8th October, 1976 up to the time that he left, he was not communicated the fact that the leave applied for had been rejected.
The learned Labour Court, however, seems to have overlooked the evidence in this behalf of Foreman Muhammad Din in the domestic enquiry. His evidence is a complete answer on both these points and completely demolishes the claim of the workman that he was orally sanctioned leave by the Foreman. The evidence of Foreman Muhammad Din before the Enquiry Officer is as follows ;- {{URDU TEXT}}
9. Muhammad Din, in the above statement, on the one hand, has categorically denied that he had granted oral leave to the workman and on the other hand explained that he was unable "to communicate to him the fact that his application for leave had been rejected as he had left the Factory before time. The plea of the workman that he had orally been granted leave by Muhammad Din is further falsified by his own application, dated 9th November, 1976 which he made to the Assistant Manager of the Company immediately on his return from the unsanctioned leave. That application appears at page 65 of the record of the learned First Labour Court in the first round of proceedings between the parties. In that application neither any claim nor any suggestion has been made by the workman that he had orally been granted leave by Foreman Muhammad Din. The explanation given in that application for availing of leave without sanction was that he had received telegrams regarding the illness of his wife and he could not wait for the sanction of his leave. Furthermore, in the said application, he has requested to be forgiven and prayed that he may be granted leave and restored to duties. This shows that the plea taken by the workman regarding the oral sanction of leave by the Foreman is an afterthought and not based on facts. The workman's misconduct, thus, in remaining absent for a period exceeding ten days is fully established.
10. I have examined the Enquiry Officer's report as also the records of the three rounds of litigation between the parties and I find that the enquiry proceedings were fairly and impartially conducted and full opportunity was given to the workman to cross-examine the witnesses. No doubt Foreman Muhammad Din was not cross-examined by the workman but there is a note of the Enquiry Officer under his statement that he had permitted the workman to cross-examine the witness but the workman declined to do so. The error in the previous proceedings of not supplying a copy of the Enquiry Officer's report to the workman has been rectified and admittedly a copy of the report was furnished to workman before a fresh show-cause notice was issued to him and the orders of his dismissal were passed.
11. For the reasons discussed by me above, I would set aside the impugned decision of the learned Labour Court, allow the appeal of the company and dismiss the appeal of the workman. P LD 1973 SC 236 1981 PLC 178 1 2