' Applicant Faiz Muhammad has come against his dismissal and has prayed for re-instatement in service of respondent Muslim Commercial Bank Limited (MCB), and for back benefits.
2. Admittedly the applicant was appointed on 2nd October, 1967 as Clerk by the M. C. B. And subsequently he was promoted as Officer Grade HI with effect from 1st January, 1976. Even after promotion the applicant was performing the duties of manual and clerical nature. On 8th October, 1980, Respondent issued letter of charge copy A/1 alleging that on 12th June, 1980, 13th June, 1980, the applicant left office and did not attend on 14th June, 1980, 13th June, 1980 being Friday.
Applicant was further alleged to have sent telegrams from Khairpur on 17th June, 1980 and on 25th June, 1980 for leave and had left the Headquarter without prior permission. Lastly the applicant was alleged to be on unauthorised leave since 7th July, 1980. Applicant was also issued final show- cause notice dated 23rd December, 1980, but admittedly there was no domestic enquiry. Under letter copy A/3 dated 6th January, 1981, the Regional Chief, M. C. B, Mirpurkhas informed the applicant that he was dismissed from service. Applicant submitted departmental appeal copy A/4 on 5th April, 1981. Then he sent grievance notice R/23, Copy A/6, to the respondent who sent reply copy A/7. These facts were not in dispute.
3. In his grievance application the applicant challenged the dismissal order to be void ab-initlo, illegal and not sustainable in law on the grounds that it was passed by the Authority not competent to pass it, that it was issued without holding of departmental enquiry, that it was based on a charge-sheet which was void, and that it was passed against the principles of natural justice and without considering the fact that the applicant was medically unfit at the relevant time to resume duty. Applicant added that he availed of the sanctioned leave and then worked upto 17th July, 1980 and then left for his village to avail Friday. That in the village he fell ill and sent telegrams for extension of leave. Applicant claimed to have received treatment from a Doctor.
4. The application was opposed by the respondent who challenged the same to be not maintainable and time-barred. Jurisdiction of this Court was also challenged. On merits it was stated that the applicant failed to resume his duties for the first time on 14th June, 1980. That he sent telegrams for leave and he was granted leave for 23 days. It was added that the applicant prayed for extension of leave but such prayer was refused and he was directed to resume duty at once. Applicant was also informed that if he failed to resume duties, disciplinary action would be taken against him. Since there was no response from the applicant hence the letter of charge copy A/I was issued. A notice was also published for the applicant in a Newspaper directing him to resume duty within 7 days. Respondent claimed to have sent the final show-cause notice on 23rd December, 1980. Since the applicant neither sent any reply nor submitted medical certificate hence he was dismissed from service, as further stated.
5. Parties adduced evidence and their counsel were heard.
6. Mr. Zaidi argued that the grievance application was time-barred. Dismissal was intimated to the applicant on 6th January, 1981 and the grievance notice R/23 was admittedly received by the respondent on 17th June, 1981. If said notice was not replied, then it would have been obligatory upon the applicant to move his grievance application within 2} months from 17th June, 1981.
Fortunately or unfortunately the grievance notice R/23 was replied by the respondent under letter copy A/7 dated 16th July, 1981. Mr. Bashir therefore rightly argued that the period of limitation of 2 months mentioned in the proviso below subsection (4) of section 25-A of I. R. O. Would start running from 10th September, 1981 viz : the date when reply copy A/7 was communicated .To the applicant. Mr. Zaidi wanted the period of 2 months to be counted from 2nd July, 1981, viz. The date on which the period of 15 days mentioned in subsection (2) of section 25-A of I. R.
0. Expired from date of receipt of grievance notice R/ 23 by the respondent. If the respondent had not replied the grievance notice then the reasoning of Mr. Zaidi would have been correct. But since the grievance notice R/23 was replied, the period of 2 months would start running from the date of communication of the reply A/7. I therefore hold that this application having been filed on 15th September, 1981 was within time. PLD 1979 Kar. 692 cited by Mr. Zaidi would not apply because this Court has not been called upon to condone delay. Mr. Zaidi also cited PLD 1979 Lah. 603, in respect of subsection (6) of section 25-A of I. R. O. This Authority would not apply because provisions contained by subsection (6) of said section were not available to the applicant. Mr. Bashir cited 1981 PLC 184 where it was held that limitation period for issue of grievance notice starts, where right of appeal is provided from date of rejection of appeal. In present case the applicant had right of appeal under Rule 9 of Discipline Rules framed by Wage Commission. Mr. Bashir also cited 19.81 PLC 293 where in somewhat similar circumstances it was held that limitation for grievance petition before Labour Court would be reckonable from the date of communication of reply to grievance notice and not from the dates of expiry of the periods prescribed under subsections (2) and (3) of section 25-A of 1. R.
0. 1, therefore, hold that grievance application to be within time.
7. Mr. Bashir argued that the charge-sheet copy A/1 framed on 8th October, 1980 in respect of absence since 7th July, 1980 was time barred. As per S.
0. 15 (4) no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct. The charge-sheet would be within time if it relates to any act of misconduct committed during the period 8th September, 1980 to 8th October, 1980. Act of the applicant in remaining absent from his duties for the period prior to 8th September, 1980 cannot be covered by the charge-sheet which is time barred in respect of absence before 8th September, 1980. But it is not time-barred in respect of absence of the applicant after 8th September, 1980. I hold accordingly.
8. According to the respondent the applicant worked up to 12th June, 1980 and since 14th June, 1980 he never worked at the place of his posting. But the applicant said in para. 3 of his Affidavit that he performed duties from 15th July, 1980 to 17th July, 1980. He said in cross that he was granted leave for 23 days from 14th June, 1980. He also stated that he performed duty from 15th July, 1980 to 17th July, 1980. In the photo copy of muster roll for July, 1980 R/17-A, produced by the respondent the applicant is shown to have initialed for the dates 15th, 16th and 17th July 1980. In his cross applicant denied if said initials were forged. Plea about the forgery and manipulation appears to be an afterthought such plea was not taken in the written statement or in reply all to grievance notice. 1 therefore, hold that the applicant performed duty till 17th July, 1980.
9. Mr. Zaidi argued that factually it was an admitted position that the applicant had remained absent from his duty for over 10 days, and hence domestic enquiry was not necessary. Mr. Bashir cited 1982 PLC 128 where Sind Labour Appellate Tribunal held that absence without leave, if it is to amount to misconduct for the purpose of S.
0. 15, must involve an element of mens rea or appropriate state of mind and that mere absence without leave for a period exceeding 10 days simipliciter without mens rea or appropriate state of mind, cannot be considered to be misconduct entailing the drastic punishment provided in clause
(3) of S.
0. 15 which includes dismissal. In view of this it was obligatory upon the respondent to order domestic enquiry for determination of the facts whether the non-joining of duties by the applicant after 17th July, 198 amounted to "habitual absence without leave or absence without leave for more than 10 days." In absence of such enquiry the impugned order cannot be sustained in law.
10. The impugned order of dismissal conveyed to the applicant under letter copy A/3 appears to have been passed by the Regional Chief M. C. B. Who according to respondents' witness Muhammad Umar was not competent to dismiss the applicant. Respondent tried to cover this defect and his counsel argued that approval for dismissal was obtained from the Head Office of M.
C. B. This was said by Muhammad Umar in cross. He added that such approval was given, not by President of M. C. B. But by a Senior Executive of M. C. B. That approval is not produced in this Court.
Even the letter Copy A/3 does not show if dismissal was with approval of any superior authority. I therefore, hold that the impugned order was not passed by the competent authority.
11. In view of above, 1 accept this application and set aside the dismissal order and order re- instatement of the applicant in service of M. C. B. Within a fortnight. Respondent Bank is at liberty to take fresh action against the applicant after ordering domestic enquiry in accordance with law. If the Bank decides to take such action the same should be initiated within one month and completed within 3 months. Grant of back benefits would depend upon result of such enquiry. If no action is taken within the period specified, then the applicant would be entitled to full back benefits.