' SHAHID ANWAR BAJWA, J.--- Respondent No,3 (hereinafter referred to as the workman) was employed by the petitioner (hereinafter referred to as the Company). He was issued show cause notice dated November 15, 2001 and thereafter vide order dated December 23, 2003 petitioner was dismissed from service. Petitioner challenged such dismissal by filing grievance petition under section 46 of the Industrial Relation Ordinance, 2002 before respondent No,2. That grievance petition was allowed by the Labour Court vide judgment dated August 22, 2005 and workmen were ordered to be reinstated in service with full back benefits. Being aggrieved by the judgment of Labour Court an appeal was filed in this Court who upon promulgation of the Industrial Relation Act, 2008 was transferred, by operation of law, to Sindh Labour Appellate Tribunal. Appeal was dismissed by vide decision dated August 24, 2011.Hence this constitutional petition.
2. Learned counsel for petitioner made the following submissions:---
(i) With promulgation of Industrial Relation Ordinance, 2011 on 18-7-2011 jurisdiction of the Sindh Labour Appellate Tribunal to continue with appeals of employees of such organizations as have Trans provincial character has come to an end. Learned counsel relied upon Bashir v. Wazir Ali (1987 SCMR 978) and Syed Aftab Ahmed and others v. K.E.S.C. (1999 SCMR 197)
(ii) Learned counsel next submitted that two courts below have wrongly held that show cause notice was barred by time and that no misconduct as defined in Standing Order 15(3) was made out. Learned counsel submitted that not only Show Cause Notice was within time but also perusal of it indicates that misconduct was clearly alleged and made out.
3. Learned counsel for the respondent No,3 referred to the Show-Cause Notice dated November 15, 2001 and submitted that it referred to advisory letters, last of them being of 17-1-2001. If such advisory letters are made basis of Show-Cause Notice, it is certainly barred by time. Learned counsel submitted by referring to orders of the two Courts below that not only Show-Cause Notice was barred by time but no misconduct was made out.
4. We have considered submissions made by the learned counsel and have also gone through the record.
5. History of Industrial Relation Law in Pakistan is quite a chequered history. This history is amply traced by Mr. Justice Z.A. Channa in Star Textile Mills v. Third Sindh Labour Court, Karachi (1973 PLC 376) in the following words:- "At the time of establishment of Pakistan the two laws which held the field were the Trade Unions Act, 1926 and the Industrial Disputes Act, 1947. The Trade Unions Act was enacted to provide for the registration of Trade Unions, to specify their functions, privileges, powers and other incidental matters. Chapter III of the said Act provided for rights and liabilities of registered Trade Unions. The Act neither specifically conferred on the Trade Unions, whether registered or unregistered, either the power to represent workers in any proceedings or to resort to or authorise a strike .... In 1927, Bombay Trade Union Regulations were issued under the provisions of section 29 of the Act and after the coming into force of the Government of India Act, 1935, the Central Government, in 1938, issued the Central Trade Union Regulations, in respect of Trade Unions whose objects extended beyond one province. The Bombay Trade Union Regulations were subsequently renamed in 1951, so far as the province of Sindh was concerned, as the Sindh Trade Union Regulations, under the provisions of section 3 of Sindh Act I of 1951.
' The Industrial Disputes Act, 1947 which came into force on 1-4-1947 provided for investigation and settlement of industrial disputes through Works Committee, Conciliation Officers, Board of Conciliation, Courts of Enquiry and Industrial Tribunals, which were required to be constituted, appointed or established.
' The Industrial Disputes Act, 1947 was repealed by the Industrial Disputes Ordinance, 59 which was promulgated on 21st October, 1959. In 1960, the Central Government framed the Industrial Dispute (Central) Rules, 1960 superseding the 1938 Rules. In the same year as the above rules were framed, the Trade Unions Act, 1926 was substantially modified, and Chapter III-E was added thereto by Ordinance XIV of 1960 providing for the recognition of registered Trade Unions. One of the rights conferred by the newly added section 28-D on the recognised Trade Union was that their executive was entitled to negotiate with the employer in respect of matters connected with the employment, non-employment, terms of employment and conditions of work of all or any of its members. The importance of the above provision lies in the fact that whereas under the '
Industrial Disputes Ordinance, the Workmen had a right to be represented by the Officers of their registered Trade Unions, if - they so choose, this provision conferred upon the executive of a registered Trade Union the right to negotiate with the employer on behalf of the members of the Union.
' In September 1965 East Pakistan enacted the East Pakistan Trade Unions and the East Pakistan Labour Disputes Act, replacing the Trade Unions Act, 1926 and the Industrial Disputes Ordinance, 1959 respectively West Pakistan followed suit and on 8th March, 1968 promulgated the West Pakistan Trade Unions Ordinance and the West Pakistan Industrial Disputes Ordinance.
' Finally on 13th November, 1969, the President promulgated the Industrial Relations Ordinance, 1969 which repealed the two East and West Pakistan Trade Union Laws, the East Pakistan Labour Disputes Act, 1965 and the West Pakistan Industrial Disputes Ordinance, 1968.
6. Industrial Relational Ordinance, 1969 held field till 26th October, 2002. During this period of 33 years, although it underwent many amendments during first 7 years of its existence, for the rest of 26 years it almost remained unchanged except few amendments in section 1(3) thereof. In 2002 the Industrial Relation Ordinance, 2002 was promulgated which repealed the Industrial Relation Ordinance, 1969. The Industrial Relation Ordinance, 2002 continued till December 6, 2008 when the Industrial Relation Act, 2008 received assent of the President. It was almost entirely a rehash of the Industrial Relation Ordinance, 1969. It died its own death as has been held in the case of Industrial Advisor Association v. Federation of Pakistan and others (2010 PLC (C.S.) 359). In the meanwhile in April 2010, 18th Amendment was made which abolished concurrent list. On abolition of concurrent list, items of trade unions and labour laws stood deleted from the array of competence of the Parliament. However, on 18-7-2011 Industrial Relation Ordinance, 2011 was promulgated.
Objects were stated as under:- "To consolidate and rationalise the law relating to formation of trade unions, and improvements of relations between employers and workmen in the Islamabad Capital Territory and in trans provincial establishments and industry."
7. Industry was defined in section 2(xvii) thereof as under:- "industry" includes any business, trade, calling, employment or occupation for production of goods or provisions of services in the Islamabad Capital Territory and falling in more than province, and excluding those set up exclusively for charitable purposes:"
8. Question is whether Federal Parliament can legislate on subject of trade union or not. This question is pending before a Full Bench of this Court. Learned counsel for the petitioner submitted that for that reason this matter should be adjourned. We do not agree with the learned counsel because in this petition vires of Industrial Relation Ordinance, 2011 or its successor legislation of 2012 have not been challenged. In Munir Hussain Bhatti, Advocate v. Federation of Pakistan and another (PLD 2011 SC 407) it was observed by the Supreme Court as under:--- "60. Before moving on to the next section of this opinion, we may also address a number of arguments made on the issue of justificiability by the learned Additional Attorney General. He argued, firstly, that the question of justiciability of the decisions of the Committee had yet to be decided by the seventeen-member larger Bench of the Court in the petitions filed to challenge the vires of the 18th Amendment. On this basis, he submitted that this Bench should await the decision of the larger Bench and, in the meanwhile, put the adjudication of these petitions on hold. The learned Additional Attorney General was of the view that the present petitions were a back-door attempt to challenge the role of the Committee and to undermine such role even before the full Court has had the opportunity of deciding the petitions challenging the 18th Amendment. We have considered these submissions and reiterate that the scope of these petitions is materially different from the scope of the petitions being heard by the larger Bench. We are clear, as stated earlier, that the present petitions assume the validity of the 18th and 19th amendments. The petitioners only seek judicial interpretation of these amendments for the purpose of their challenge to the two aforementioned decisions taken by the Committee. Put simply, while the present petitions seek judicial review of decisions of an executive body, purported to be taken under Article 175A of the Constitution, the petitions before the larger Bench challenge the very authority of Parliament to make the amendments challenged in such petitions. It is, therefore, evident that any adjudication in these petitions will relate only to the impugned decisions of the committee and not to the validity of the amendments in the Constitution."
9. Therefore, we heard this petition and are deciding it without going into question as to whether the Industrial Relation Ordinance, 2011 or the Industrial Relation Act, 2012 are ultra vires or not.
10. Contention of learned counsel was that with Industrial Relation Ordinance, 2011 jurisdiction of Labour Courts and Labour Appellate Tribunal has come to an end because for trans-provincial organisations, the last two named enactments have conferred jurisdiction on the National Industrial Relations Commission. Admittedly the Company is a company which is an organisation having branches and offices in more than one provinces. Learned counsel relied upon Bashir's case (supra). Certain amendments were made in section 18 of the Punjab Civil Courts Ordinance, 1962 in 1986. Pecuniary jurisdiction for the purpose of appeal was increased from Rs,50, 000 to Rs,200,000. An appeal had already been filed and when it came up for hearing it was submitted that amendment was prospective in nature and, therefore, District Judge had no jurisdiction to hear the appeal. District Judge did not accept the contention. Supreme Court observed as under:- "It was pointed out by the learned Assistant Advocate-General that the same contention had been raised before the Lahore High Court in the case of Daraz Ali and others v. Nathu Khan 1982 CLC 2399 when a first appeal was returned for disposal to the relevant District Judges after the pecuniary jurisdiction of the District Judges was raised from rupees twenty-five to rupees fifty thousand by an amendment in section 18 of the Punjab Civil Courts Ordinance (II) of 1962 by Ordinance (XX) of 1978. The plea was rejected by the High Court for the same reason stated above, relying inter alia on this Court's judgment in Adnan Afzal's case (supra).
11. Learned counsel also relied upon Syed Aftab Ahmed's case (supra). Section 2A of the Services Tribunal was promulgated in June 1997 and question before the Supreme Court was whether the amendment was prospective or retrospective in nature. Supreme Court observed as under:--- "2. As regards the above first ground, it may be observed that in Civil Appeals Nos.1516 to 1537 of 1997 a Bench of this Court comprising one of us (Ajmal Mian, C.J.) and two learned Judges through judgment dated 31-3-1998 on the basis of an earlier judgment of this Court in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and the other cases referred to in the judgment has held that since the right of appeal is a procedural matter, the newly section 2-A was applicable retrospectively."
12. As the above two cases indicate, seminal judgment is case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). Matter related to section 488 of the Code of Criminal Procedure before the City Magistrate Sialkot which was ultimately transferred to the Court of District Magistrate where application was moved that in view of provisions of the West Pakistan Family Courts Act, 1964, with effect from 18-7-1964, proceedings should be filed under the said Act. District Magistrate accepted the plea and petition was dismissed by the Supreme Court. Supreme Court observed as under:--- "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect.
' To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (2), where it was observed that as "a general rule when the Legislature alters the rights of parties, by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights."
13. Thereafter Supreme Court addressed question as to what are the matters of procedure in the following words:--- "The next question, therefore, that arises for consideration is as to what are matters of procedure.
It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
14. It is a stage now to look at provisions of the Industrial Relation Ordinance, 2011. Industrial Relation Ordinance is not per se a procedural law. It confers benefits of labour laws on many persons and provides them safeguards against illegal strikes and lockouts. It is a piece of welfare legislation. It lays down punishments including, in certain cases, punishment of imprisonment. It provides for procedure in case of illegal strikes and machinery for conciliation, procedure relating to industrial disputes, registration of trade unions and federation of trade unions and many other matters.
Therefore, it is not merely a procedural law because it contains substantive provision. It is therefore prospective in operation.
15.In Workers v. The Management, Sultan Textile Mills Ltd., Sargodha through the Managing Director and another (1973 PLC 175) facts were that a number of appeals under section 12(5) of the West Pakistan Industrial Disputes Ordinance, 1959 were pending in High Court. During pendency of those appeals Industrial Disputes Ordinance, 1959 was repealed and replaced by the West Pakistan Industrial Disputes Ordinance, 1968. Under the 1959 Ordinance, forum of appeal was High Court whereas under the Ordinance of 1968 forum of appeal was provided as Labour Appellate Tribunal.
Question before the Lahore High Court was whether appeals were to be heard by it or are to be transferred to the Labour Appellate Tribunal. A Full Bench of Lahore High Court held that right of appeal to the High Court accrued when the appeals were actually filed and this right was neither destroyed nor proceedings of appeals abated nor were impaired in any other respect but rather they were expressly saved by the mandate that they shall continue.
16. It may be pointed out that when Industrial Relation Ordinance, 2002 came, it was specifically provided that appeals pending in the Labour Appellate Tribunal shall stand transferred to the High Court (section 82(2)(d) and when the Industrial Relation Act, 2008 came it also provided that proceedings pending before the High Courts shall stand transferred to the Labour Appellate Tribunal. It may also be pointed out that neither in the Industrial Relation Ordinance, 2011 nor in the Industrial Relation Act, 2012 there any provision for transfer of pending proceedings. It may also be pointed out that when through Industrial Relation (Amendment) Act, 1973 (Act XXIX of 1973) Junior Labour Courts were created, specific provision was made, and empowering Labour Courts to transfer a case from one Junior Labour Court to another Junior Labour Court and no provision was made for transfer of appeal to Appellate Tribunal. In the Ordinance, 2011 as pointed above no provision has been made for transfer of proceedings already pending in the Labour Court or in the Sindh Labour Appellate Tribunal or National Industrial Relation Commission.
17. It is now well settled law that though Court can take circumstances into consideration which develop or evolve or emerge during pendency of proceedings Mst. Amina Begum and others v.
Mehar Ghulam Dastgir (PLD 1978 SC 220), it is equally well settled that right of the parties are to be settled/decided according to law which F prevailed when cause of action accrued. If any authority is need one may refer Muhammad Aslam v. Director Human Resources Management (Civil Petition No,454 of 2009) decided on 22-5-2009 and Nadeem Iqbal v. Atomic Commission (Civil Petition No,102 of 2009) decided on 28-5-2009.
18. Admittedly as far as grievance of petitioners whose grievance petitions or appeals were pending on 18-7-2011 i,e, the date on which Industrial Relation Ordinance, 2011 was promulgated are causes which accrued before promulgation of the Ordinance. Therefore, both the Labour Courts while adjudicating grievances of such petitioners as well as Sindh Labour Appellate Tribunal while hearing revision application and appeals filed before them prior to promulgation of the Industrial Relation Ordinance, 2011 or have arisen or arise out of matters before Labour Courts which matter were pending before 18,7-2011 are held to be competent to hear and decided those matters in accordance with the law which prevailed as on the date when proceedings were initiated.
Therefore contention of learned counsel that Labour Appellate Tribunal had no jurisdiction is repelled.
19. Second contention is whether Show-Cause Notice dated 15-11-2011 is barred by time or not?
Show-cause notice referred to 223 incidents of late-coming spread over period of 10 years. In this connection 21 advisory letters between 15-9-1991 and 17-1-2001 were issued to the respondent No,3.
Thereafter it is stated that in January, February, April and May, 2001 he was late by one day in each month and in August, September and October, 2001 on two dates in each month. Last date of late- coming was mentioned as October 19, 2001, i,e, within one month of the date show because notice was issued. Learned Labour Court observed as under:--- .... Standing Order 15(4) provides that not only alleged misconduct is to be brought to the notice of employee within one month after conclusion of alleged misconduct, but simultaneously he should also be given an opportunity to explain the present case notices of late coming as referred in the show-cause notice were simply served upon the applicant, but these notices are totally silent in respect of any opportunity to the applicant explaining the position in respect of alleged misconduct, and when no opportunity to explain the position was given than in such circumstances it can be presumed that these notices are simply advisory in nature and because past and closed transaction and thus these notices cannot be made as basis of proving the charge of misconduct against applicant. Representative for the applicant, therefore, argued that for all purposes the applicant has been able to prove that action of dismissal from service of applicant taken by respondent cannot be said to be a bona fide action, but it is based upon mala fide."
20. Thereafter in respect of habit it observed as under:--- .. For the purpose of proving 'habitual late attendance' it was incumbent upon the employer to prove frequent repetition of same act as respondent's own case discloses that applicant attended office late for about 223 times during the period of eleven years viz: from January, 1991 to October, 2001 which ratio of late attendance is less than two times in one month on average and as such this type of ratio of late attendance can not form the case of habitual late attendance on the part of applicant."
21. For reaching such conclusion Labour Court relied upon Punjab Urban Transport Corporation v.
Muhammad Zahid (1984 PLC 525) and Karachi Shipyard and Engineering Works Ltd., Karachi v.
Abdul Shakoor (1969 PLC 652). Labour Appellate Tribunal in respect of habit observed as under:--- "Further the perusal of Standing Order 15(3)(f) provides that the act of late attending duty must become the habit of the respondent worker. Whereas, only one, two or three late attendance in a month cannot constitute any kind of habit. It is pertinent to note here that only 11 late attendances in the year 1991 and the same does not constitute habit of coming late and only 12 late comings for the year 1992 and whereas 21 late coming for the year 1994 and same practice was for other years as described in the show cause notice, so none of the instance of the late attendance tantamount the habitual late attendance, as discussed in the various citations produced by the learned Counsel for the respondent worker before learned Labour Court."
22. Standing Order 15(3)(f) describes habitual late attendance as a misconduct. In Muhammad Zahid's case (supra) the allegations against workman were of late attendance on 5 dates in a single month. He was punished with stoppage of one increment. Punjab Labour Tribunal observed as under:--- "3. The allegation made against the respondent did not amount to misconduct. Only in a month on five days he came late. There should be sufficient, instances scattered in some months in order to show that a habit had been developed and improved to come late."
23. Reliance on this case by Labour Court is not apt for two reasons: Firstly, the case is of 5 late- coming in one month only, whereas the allegation against the present respondent No,3 is of 223 late comings spread over period of 10 years or so. Secondly, in the reported judgment it has been stated that it must be late coming spread over number of months. If late coming is spread over a number of months and thereafter charge sheet/show-cause notice is issued how it would be within time as per logic adopted by the two Courts below. Second case reported by the Labour Court is Karachi Shipyard and Engineering Works Ltd.'s (supra). In this case person was absent for 28 dates spread over period of 6 months. It was not the case of habitual late attendance but of habitual absence. Moreover, it is a decision by Labour Court. Reference may also be made to Aftab Alam alias Matoo v. Province of Sindh and 2 others (PLD 1979 Karachi 645) case. Petitioner was working as cashier in Bank and a complaint under section 14 of the Sindh Crime Control Act was lodged by the respondent No,2 against petitioner and it was challenged in writ petition. In High Court it was averred that respondent No,3 did not contend regarding registration of the case against petition but also challaned it as vague indefinite allegations based on mala fide.
Petitioner's name was entered in the surveillance list of the Brigade Police Station. Petitioner challenged entry in surveillance register. Mr. Justice Ajmal Mian regarding habit observed as under:--- "The word 'habitually' required a continuous and permanence of criminal tendency something that has developed into a propensity that it present from day to day. Its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristic of being customary or usual behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. In other words, a habitual offender or a person habitually addicted to crime repeats on committing of offence/ offences whenever appropriate conditions are present. It becomes habit on account of frequent repetition to commit offence."
24. The word 'habit' is defined in Sixth Edition of Black's Law Dictionary as under:--- "Habit. A disposition or condition of the body or mind acquired by custom or a usual repetition of the same act or function. The customary conduct, to pursue which one has acquired a tendency, from frequent repetition of the same acts. Knickerbocker Life Ins. Co. v. Foley, 105 U.S. 350, 26 L. Ed.
1055. A regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances. Frase v. Henry, C.A.Kan., 444 F.2d 1228, 1232.
Course of behavior of a person regularly repeated in like circumstances. Evidence of a specific habit may be admissible to show specific conduct or acts within the sphere of the developed habit. Fed.Evid. R.
406. See also Custom and usage; Habitual."
25. In Judicial Dictionary by K.J. Aiyar, 13th Edition the words "habit" and "habitual" are defined as under:--- "Habit. The word 'habit' implies a tendency or capacity resulting from the frequent repetition of the same act. The words 'habit' and 'habitual' imply frequent practice or use. [D.B. Singh v. State of UP AIR 1960 All 754].
' Habit' implies a tendency or capacity resulting from frequent repetition of the same or similar acts. It indicates depravity of or, criminality in character, evidence by frequent commissions of offences. 'Habit' has to be established by aggregate of facts. [Gopalan Achari v. State of Kerala 1981 Ker LT 448].
' And reput. The terms are used to denote whatever is generally understood and believed by the people to have happened. The phrase is often used in respect of the behaviour of people who are proceeded against under the security sections. Again, if a man and a woman live together openly, i,e, by habit and repute, there is a strong presumption that they are legally married.
' Habitual. Habitual, i,e, by habit. The term is always used for persons who are leading persistently a dishonest or criminal life, eg a habitual receiver of stolen property is by habit a thief . [See S.110, Cr. P. C.] ' Habitual' connotes repetition, and a person can be said to be a habitual offender only if several offences are imputed to him [Sriniwas Agarwal v. State of UP 1982 UP CrLR 297, 1983 All CrR 369, 1983 CrLJ 21].
'If the accused, in any such case, is not represented by a pleader': The expression 'if the accused, in any such case, is not represented by a pleader', occurring in subsection (2) of 5.3I7 of Cr.P.C.
1973, does not mean that merely because an absconding accused is represented by the pleader, the trial against him cannot be split up if his personal attendance is Court is necessary.
[Duraisingarm, Re 1983 CrLJ 1 765 (Mad)] .
' Defaulter. In rent control matters failure to deposit accepted rent makes the person a 'habitual defaulter', [Padmakar v. Makhuykar (1995)2SCC 537].
' Offender. A habitual offender or a person habitually addicted to crime is one who is a criminal by habit, or by disposition formed by repetition of crimes. [Dhanji Ram Sharma v. Superintendent of Police AIR 1966 SC I 766,68 PUnj LR (DS) 229]."
26. A perusal of the above indicates that the habit is one which is chronic, continual, frequent and regular. It must be repeated for a sufficiently long period of time. No specific period of time can be prescribed but it will depend upon nature of allegations. Habit is established by aggregate of facts and not by a single fact standing alone
27. In view of our above discussion the question arises is that since the Standing Order 15(4) prescribed that workman be informed of the circumstances alleged against him within period of one month of the date of incident or the date the incident or circumstances come to knowledge of employer. Do, in the present context, dates of all late coming must be within the month concerned.
Obviously, if it is limited to that one month immediately proceedings the show cause notice/charge sheet it will not be habit at all, because as observed habit is chronic, persistent and continual.
Therefore, where habit is required for constituting misconduct, last such incident must be within a period of one month prior to the date of show cause notice or charge sheet. It is last such incident and not all of the incidents. Therefore, while making allegation of habit the employer though can refer to all the previous incidents which cumulatively with incidents during period of one month prior to the date of allegation constitute misconduct. Since in the present case last date of late attendance is October, 19, 2001 show-cause notice dated November, 15, 2001 cannot be said to be barred in view of the provision contained in Clause 4 of Standing Order 15.
28. Number of advisory letters was issued. All of them were produced in the Court below. In each advisory letter after quoting dates of late coming it was stated as under:- "Your act of attending duty late is objectionable and irregular on your part. You are, therefore, advised in your own interest to desist from late attendance and be punctual on duty in future failing which disciplinary action shall be taken against you in accordance with law."
29. On the basis of these letters learned Labour Court observed that each letter indicates conclusion of the misconduct and the learned Labour Appellate Tribunal observed that since advisory letters have been issued they can be considered in a manner punishment and therefore could not form basis of show cause notice. Both the conclusions, in our view, are not warranted by provisions of law. Firstly, warning is not one of the prescribed punishments under Clause (2) of the Standing Order 15 of the 0 Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 where the following punishment are provided:-- - "(2) A workman found guilty of misconduct shall be liable to any of the following punishments:---
(i) fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month;
(ii) withholding of increment or promotion for a specified period not exceeding one year;
(iii) reduction to a lower post; or
(iv) dismissal without payment of any compensation in lieu of notice.
30. Secondly, word 'warning' clearly indicates that employee' is notified of his conduct and is only asked to be a punctual in future 0 otherwise disciplinary action may be taken against him. In the present case word used was not even warning but "advised". No disciplinary action can be said to have been taken by issuing these advisory letters. P Issuance of advisory letters as initiation of with disciplinary action or as punishment. Therefore, the conclusion by the Labour Appellate Tribunal that with advisory letters it became past and closed transaction, to us, is not warranted in the facts and circumstances of the case.
31. Last question is whether in the circumstances it constituted "habitual". we have already observed above that habitual means continuous, chronic and frequent. It is noted that there were 223 late comings spread over period of 10 years which would amounts to an IR average of 2 to 3 late comings every month, persistently and continually month after month and this conduct is repeated by employee in spite of a number of letters issued to him, in fact 26 in number.
Respondent No,3 was a charge man working in a factory and it is essential for a factory that all persons working there be present in time. He was late some time for almost one hour. If it is not an undesirable conduct or misconduct it is difficult to see what else would be misconduct.
32. Result of the above discussion is that this constitutional petition is allowed and the decision dated August 24, 2011 passed by the Sindh Labour Appellate Tribunal and Judgment dated August 22, 2005 passed by the learned Presiding Officer, Sindh Labour Court No,2, Karachi is set aside.
33. Let a copy of this order be sent to the learned Chairman, Sindh Labour Appellate Tribunal and the Presiding Officers, Sindh Labour Courts for their information.