DECISION ' The appellant, who was originally appointed as Security Guard in the Pakistan Machine Tool Factory Ltd., the second respondent herein, but was subsequently transferred to the post of helper on account of his misbehaviour and misconduct with another Security Guard, and who had been previously warned on more than one occasion for absenting himself without leave, was dismissed from service, vide order, dated 10th January.- 1981 on the charge of unauthorisedly remaining absent from his duties for more than ten days with effect from 14th December, 1980. The appellant challenged the orders of his dismissal by way of a grievance petition before the learned IVth Labour Court and the main grounds urged by him in his grievance petition were, firstly, that his absence from duty was unavoidable due partly to his dispute with his tenants of agricultural property and partly on account of his ill-health secondly, that he had been given no notice of the domestic enquiry said to be held against him and lastly that the orders of dismissal were invalid and were due to the fact that he had been taking keen interest in the union affairs. The learned Labour Court rejected all the contentions of the appellant and has held that the appellant had unauthorisedly remained absent for a period exceeding ten days and that a proper domestic enquiry was held against him of which notice was given to him both through post as well as by publication in the newspapers. It has, accordingly dismissed the appellant's grievant petition and the appellant has now come up in appeal to this Tribunal.
2. I have heard Mr. Mirza Mohammad Naeem, the learned counsel for the appellant. He has assailed the impugned decision of the learned ' Labour Court on the grounds :
(i) That no enquiry was held against the appellant and
(ii) that in any case no notice of the enquiry was sent to the appellant or received by him.
3. In order to appreciate the contentions of the learned counsel it would be appropriate to briefly state the facts which resulted in the passing of the dismissal order against the appellant. As already stated, the appellant was originally appointed as Security Guard. However, while he was so employed, he was issued a warning vide letter of the management dated 27th October, 1976 for quarrelling with and physically assaulting another Security Guard, Mr. Abdul Rehman, and; using abusive language towards him. Thereafter, vide letter of the management, dated 2nd November, 1976 the appellant was transferred as helper. The appellant continued to work as helper in the establishment of the second respondent till 12th October, 1980 when he proceeded to his native place in N. W. F. P. On 32 days' sanctioned leave. The appellant, by his letter, dated 29th October, 1980 requested for an extension of leave by 15 days on the ground that his house had fallen down due to rains and needed repairs. This leave was sanctioned to the appellant. On the expiry of the said leave the appellant by his letter, dated 23rd November, 1980 sought extension of leave for one month from 28th November, 1980 to 28th December, 1980 on the ground of differences with his agricultural tenants. This leave was refused to him and he was informed that he must resume his duty by 14th December, 1980 failing which disciplinary action would be taken against him. This intimation, which is dated 6th December, 198) was sent by registered post A/D to the address given by the appellant in his applications for leave. As the appellant failed to report for duty by 14th December, 1980 a show cause notice, dated 18th December, 1980 was sent to him to which no reply was received from the appellant. On 3rd January, 1981 a notice of enquiry to be held on 24th January, 1981 was sent to the appellant by registered post A/D. The notice of the holding of the enquiry was also published in two local papers namely, Jang and Jasarat of 7th January, 1981. As in spite of all these notice; the appellant failed either to report for duty or to take part in the enquiry proceedings, ex parte enquiries were held against him and a show-cause notice, dated 25th January, 1981 was sent to the appellant by registered post A/D. The notice was also published in the Daily Jang and Daily Jasarat of 29th January, 1981. The appellant admittedly received this second show-cause notice and claims to have sent a reply thereto but the receipt of the reply is denied by the second respondent. Ultimately, on 10th February, 1981, the appellant was dismissed from service.
4. As al-ready stated the show-cause notice, dated 18th December, 1980 and the notice for the holding of the enquiry, dated 3rd January, 1981 were sent by registered post A/D to the appellant at the address given by him in his applications for leave. The two covers containing the show-cause notice and the notice of enquiry were returned back by the postal authorities with the endorsement that they have been refused. As the notices were sent to the appellant at his proper address the second respondent would have been justified in holding an ex parte enquiry against the appellant but in order to give the appellant another opportunity of participating in the enquiry notice of enquiry was published in the Daily fang and Daily Jasarat of 17th January, 1981, It was contended by Mr. Mirza Mohammad Naeem that as these two papers are local papers and there is no evidence to show that they have circulation in the village of the appellant, the publication of a notice in these papers cannot be considered to be due intimation of the notices to the appellant. Both the Daily Jang and Daily Jasarat have wide circulation in the country and in the absence of any evidence to show that any local newspapers are published either in the village of the appellant or in or from District Mansehra where the said village is situated. The second respondent appears to have done everything within reasonable limits to inform the appellant of the misconduct alleged against him and given him notice of the holding of the enquiry. The Supreme Court, in the case Dawood Cotton Mills Limited v. Guitar Shah and others (1) has observed that the ordinary mode of service of a show-cause notice under clause (4) of Standing Order 15 is personal delivery if the employee is available at the establishment and if he is not so available by post. The Supreme Court has, further, observed that publication of the notice in the newspapers need to be resorted to only when there is material to bold that service in the ordinary manner cannot be effected or where a large number of persons are required to be given notice. In the instant case both the modes of service; registered post and publication in the newspapers have been adopted by the second respondent. I am.
Therefore, of the view that the second respondent has done all that was reasonably required of it to serve the show-cause notice of the holding of the enquiry upon the appellant and if the appellant has not received the same it has been entirely due to his own negligence and fault.
5. Mr. Mirza Mohammad Naseem also sought to argue that no domestic enquiry, in fact, was held against the appellant and consequently the orders of the appellant's dismissal from service were in contravention of clause (4) of Standing Order 15. He sought to base this contention on the fact that neither the Enquiry Officer was examined nor the record of the enquiry or the Enquiry Officer was produced before the learned Labour Court. There is, however, overwhelming material to show that the enquiry was held against the appellant. I have already referred to the efforts made by the second respondent to serve the show-cause notice and the notice of the holding of the enquiry.
Additionally the second show-cause notice, which specifically mentions the holding of the domestic enquiry against the appellant and the fact that the Enquiry Officer had found the charges against the appellant established, was duly received by the appellant. Finally, the dismissal or also refers to the fact that the domestic enquiry was held against the appellant in which he was found guilty. The appellant neither in his grievance notice nor in his grievance petition has taken the stand that no such enquiry was held. His stand all along had been that he had not been given notice of the enquiry. As already discussed I am of the view that the appellant is deemed to have been given notice both of the misconduct alleged against him and the holding of the domestic B enquiry. It would, no doubt, have been appropriate if either the Enquiry Officer had been examined or the enquiry proceedings and the report of the Enquiry Officer had been submitted before the learned Labour Court, but since it was an admitted position that the appellant {{FOOT NOTE}}
(1) PLD 1981 SC 225 {{FOOT NOTE}} ' had remained absent without leave for a period far in excess of ten days and further no demand, was made by the appellant either for the examination of the Enquiry Officer or the production of the enquiry proceedings and the enquiry report, the non-examination of the Enquiry Officer or the non-production of the enquiry proceedings and the Enquiry Officer's report neither strengthen the case of the appellant nor demolish the case of the second respondent.
6. For the reasons discussed by me above, I find no merit in this appeal and would, accordingly, dismiss the same in limine.