DECISION ' The appellant, who was employed as a Tandoor Wala in the Hotel Intercontinental, Karachi, the respondents herein, was dismissed from service by order, dated 6th February, 1980, on the charge of habitual absence. The dismissal order, which was published in a local newspaper of 9th February, 1980, was based on a domestic enquiry in which the appellant himself had admitted that he had been absent on a number of occasion during the period from May, 1979 to October, 1979.
The appellant challenged the orders of his dismissal before the learned Fifth Labour Court and took a number of pleas in support of his contention that the said orders were invalid, including the plea that the orders of his dismissal were not issued by his employer or even with the approval of his employer. The learned Labour Court has dismissed the appellants grievance petition and has repelled his various contentions. The appellant has accordingly, come up in appeal before this Tribunal.
2. Mr. M.L. Shahani, the learned counsel for the appellant sought to assail the impugned decision of the learned Labour Court on the ground that absence from his duties of the appellant did not constitute habitual absence without leave for the purposes of sub-clause (e) of clause (3) of Standing Order 15 and consequently the order of dismissal from service of the appellant cannot be sustained. In support of his contention the learned counsel relied upon the decision of a learned Single Member of the N. I. R. C. In the case of Mohammad Tamil v. General Manager. Army Welfare Food Industries, Faisalabad (1). The facts of that case were that the employee, who had been in the service of the employer for a span of 16 years, was found negligent 3 to 4 times in that he was found sleeping during duty hours. It was also established that the employee had been twice warned before for his negligence. It was held by the learned Single Member of the N. I. R. C. That negligence only on 3 to 4 occasions in a span of 16 years cannot be considered to be habitual negligence of duties. The facts in the instant case, however, are totally different. The charge-sheet against the appellant to which he had pleaded guilty in the domestic enquiry reads as follows "Dear Mr. Hameed : ' It has been reported by your Department Head that you are a habitual absentee and always absent from duty for 3 to 4 days without any leave or authorization. On checking your attendance record, it is also noted that you were absent on the following dates without proper authorization and information :- {{TABLE}} May 6th, 15th, 28th, 30th June 5th, 17th, 18th, 19th July 9th, 19th-20th, 27th August 1st-4th, 7th-10th 27th September 1st, 2nd, 13th-16th, October 1st, 2nd, 12th, 13th, 16th, 19th, 26th {{TABLE}} ' Please note that habitual absence is a misconduct under Standing Order Ordinance, 1968. You are hereby directed to explain in writing as to why disciplinary action should not be taken against you for habitual absence. Your explanation should reach the undersigned by 29th November, 1979." {{FOOT NOTE}}
(1) 1980 PLC 1183 #TBS (I) PLD 1978 Kar. 368 #TBE {{FOOT NOTE}} A perusal of the aforesaid charge-sheet shows that the appellant during the period of six months had been absent without leave on no less than 25 occasions and that on four of those occasions the absence was for a continuous period of 2 to 4 days. Looking to the large number of occasions on which the appellant remained absent without leave within a comparatively short span of six months it cannot but be said that the appellant was habitual absentee from his duties. In the case of Shero alias Sher Mohammad v. State (I) a learned Single Judge of the Karachi High Court has construed "habit" as follows :- "Habit implies a tendency or capacity resulting from the repetition of the same acts. It implies frequent indulgence in such acts connecting depravity of character."
3. Mr. Shahani sought to argue that the absence from duties by the appellant was due to circumstances beyond his control, including the illness of his wife, transport problems and family problems. In support of his contention Mr. Shahani relied upon the statement of Mr. Bottner, Executive Chief of the respondent hotel, before the Enquiry Officer. The statement of Mr. Bottner, should, however, be considered in relation to the question put to him. The relevant questions and answers in this behalf read as follows :- "Q. Did you gave him any verbal or written warning regarding his absence ?
A. Verbal. Several times.
' Q. Has he shown any improvement or what was the excuse, ' A. Not really. Several family problems, transport and sickness."
4. It will be seen that it was the appellant himself who had given the excuse of family problems, sickness and transport problems for not being able to attend his duties on the days that he had remained absent. However, there is no tangible evidence on record to establish that there was any truth in these excuses. It was for the appellant to show and satisfy the management that there were valid grounds for his not being able to attend his duties. This he failed to do.
5. It was also sought to be argued by Mr. M. L. Shahani, that in the past the conduct of the appellant had been exemplary, but he was unable to cite any evidence in support of his contention. No question was put to the management either in the enquiry proceedings or before the learned Labour Court that the appellant had been regularly attending to his duties in the past. On the contrary there is the above abstract which seems to suggest that several verbal warnings were given to the appellant for not attending to his duties.
6. For the reasons discussed by me above, I find no merit in this appeal, I would, accordingly, concur in the findings of the learned Labour Court and dismiss this appeal in limine.