DECISION S ' The respondent, who was employed as a bus conductor in the appellant corporation, was dismissed from service, vide order, dated 31st August 1981, on the charge of unauthorisedly remaining absent from his duty for a period exceeding ten days. The said order was based on the report of the Enquiry Officer who found that the workman had continuously remained absent from his duty with effect front 25th September, 1979. It may, however, be pointed out that the domestic enquiry was held ex parte as the show-cause notice, the notice of holding enquiry as well as the order of dismissal were sent to the respondent at his home address as available in the records of the appellant-Corporation while the admitted position is that during the relevant period the respondent was in jail to the knowledge of the appellant corporation. The respondent challenged the orders of his dismissal before the Ist Labour Court which has taken the view that the show- cause notice to the respondent was time-barred in that it was given much beyond the period of one month which is the maximum period prescribed under clause (4) of Standing Order 15 for service of charge-sheet upon a workman if it is intended to dismiss the workman. The learned, Labour Court, accordingly held, the domestic enquiry proceedings against the respondent as invalid and has directed the re-instatement in service of the respondent with full back benefits.
2. I have heard Mr. Sirajul Haq Qureshi, who appeared for the respondent corporation and Mr. Muhammad Shibli, Advocate, for the respondent workman. It was contended by Mr. Sirajul Haq that inasmuch as no valid grievance notice was served by the respondent workman upon his employer, the grievance petition of the respondent was not maintainable and he was not entitled to any relief. In order to appreciate the contention of Mr. Sirajul Haq certain facts of the case have to be referred I have already referred to the fact that the respondent was dismissed vide order, dated 31st August, 1981, which order does not appear to have been served upon the respondent.
According to the averments made in the grievance petition, which have not been disputed by the appellant corporation, the respondent was arrested on 19th August, 1979 but was released on bail on 20th August, 1979. He was again arrested on 25th September, 1979, under Martial Law Regulation No, 9, upon the report of the appellant corporation, and was tried and convicted by a Summary Military Court which sentenced him to imprisonment for one year and also ten lashes. The sentence of lashes was subsequently stayed by the High Court in Constitutional Petition No, 2033 of 1979 in which both the respondent workman and the Managing Director of the appellant corporation were parties. According to the respondent, he was released from jail on 1st September, 1980 and reported for duty on 2nd September, 1980 alongwith an application of the same date.
There is nothing in the said application to indicate that the respondent had been served with the order of dismissal or had even knowledge thereof. This application of the respondent was rejected by the appellant corporation, vide its letter, dated, 9th September, 1980, and he was informed that as his services had already been terminated he could not be taken on duty. The respondent, thereupon, served the following grievance notice upon the appellant corporation ;- " To ' The Managing Director, ' M/s. Karachi Transport Corporation, Karachi.
' Re: Notice Under section 25-A of 1969.
' Dear Sir, ' In response to your letter No, KTC/5015/Pers/80/5635 dated: 9th September, 1980 wherein I have been informed that my services have already been terminated and therefore I cannot be taken on duty.
' I regret that no reason of termination of my services has been assigned in the under reference letter.
' You are, therefore, requested to please vacate your above order which is given to me because of my trade Union activities. I am the General Secretary of Karachi Transport Corporation Workers Union which is Collective Bargaining Agent in the establishment and just to keep me out of the reach of my members I have been served upon the under reference letter.
1982 K AR. ROAD TRANSPORT CORPN. V. MOHD. RAFIQUE 757 (Z. A. Channa, Appellate Tribunal)
' In the light of above facts you are requested to please withdraw the letter No, KTC/5015/Pers/80/5635 dated 9th September, 1980 and let me perform the duties as usual. Please treat this letter as notice under section 25-A of I. R.
0. 1969.
' Copy to : ' Yours faithfully,
(I) The D. M., K. T. C.
Orangi Depot, Karachi. (Sd!-)
The K. T. C. Workers Union. (MUHAM \IAD RAPIQ)
P.N.F.T.U., Karachi. ' Cond. T. No, 3066 ' 406, Qamar House, M.A. Jinnah Road, ' Dated : 4th October, 1980. ' Karachi.
3. The precise contention of Mr. Sirajul Haq Qureshi is that as the respondent was dismissed from service vide order, dated 31st August 1981, while the grievance notice makes reference to the letter, dated 9th September, 1980 informing him that his services had already been terminated, and the grievance notice further makes a demand merely for the withdrawal of the said letter of 9th September, 1980, the respondent could not prefer a grievance petition against the termination of his services which was effected by the earlier letter of 31st August, 1980. I regret that I find no force in this contention. The grievance notice of the respondent, which has been reproduced in in extenso above, is clearly directed against the termination of services of the respondent. It is, therefore, immaterial if the grievance notice does not refer to the letter or order by which the services of the respondent had been terminated. It may further be pointed out that as the respondent was admittedly in jail with effect from 25th September, 1979 up to 1st September, 1980 and neither the charge-sheet nor the order of dismissal were served upon him, he presumably imagined that his service; had been terminated by the letter, dated 9th September, 1980, and hence has referred to the said letter in his grievance notice. The law does not provide for any particular form in which the grievance notice has to be given. If, therefore, upon a perusal of the grievance notice it can be ascertained what is the grievance which the workman wishes to bring to the notice of his employer, the notice should be considered to be a valid and proper on. I am, therefore, satisfied that the grievance notice of the respondent, dated, 4th October, 1980, is in accordance with law and was directed against the respondent's grievance of termination of his services.
4. It was next contended by Mr. Sirajul Haq Qureshi that inasmuch as the grievance notice does not make a demand for payment of back benefits, therefore, the respondent was not entitled to tile or maintain grievance petition for award of back benefits. It may, however, be pointed out that the award of back benefits is a consequential relief to the re-instatement in service of a workman and since the responded had served a proper grievance notice on his employer against the termination of his services, he could properly claim in his grievance petition. Award of back benefits. Subsection (5) of section 25-A, I. R.
0., confers wide powers upon the Labour Court dealing with a grievance petition to pass such orders thereon as may be just and proper in the circumstances of the case. The Labour Court was, thus, fully entitled in law to award back benefits to the respondent, despite the fact that no specific claim for back benefits was made by the respondent in his grievance notice.
5. As the respondent was not served with the charge-sheet the notice of the enquiry or the dismissal orders, the covers containing which were returned undelivered by the postal authorities to the appellant corporation on account of the fact that the respondent workman was in the jail at the relevant time, it must be held that the respondent has been given no opportunity to meet the charges against him or showing justification for his absence. In consequence the orders of dismissal c from service of the respondent must be held to be invalid and the learned Labour Court rightly set aside the same and ordered the reinstatement in service of the respondent.
6. There remains the question of awurd of back benefits to the respondent. Admittedly the respondent remained, in jail with effect from 25th September, 1979 up to 1st September, 1980, i,e, for a period of almost one year. This imprisonment was awarded to the respondent by a Summary Military Court. Admittedly for this period of about one year the respondent neither served the appellant corporation nor was he in a position to do so. Since it was on account of his own actions that the respondent was awarded imprisonment and was thus not in a position to attend to his duties of the appellant corporation, the latter cannot in all fairness be saddled with the wages of the respondent at least for this period. Even for the subsequent period I am of the view that the respondent is not entitled to full back benefits as the appellant corporation appears to have honestly believed that due to the conviction of the respondent by a Martial Law Court the respondent had become disentitled to re-instatement in service. Mr. Shibli, however, rightly pointed out that the appellant corporation did not terminate the services of the respondent on account of his conviction by Military Court or refused to take him back on that account but the charge against him, upon which the dismissal orders were founded, was his mere absences from duty for a period exceeding ten days. Taking all these circumstances into consideration I would modify the order of the learned Labour Court granting the respondent workman full back benefits and would instead award the respondent fifty per cent of the benefits with effect from 2nd September, 1980.