DECISION ' This appeal is directed against the decision of the learned IVth Labour Court, given on 29th September, 1981 dismissing the grievance petition of the appellant, Mrs. Sabiha Yousaf, challenging her termination of service from the respondent establishment with effect from 8th March, 1981. The decision by the learned Labour Court was based on its finding that it had been established both in the domestic enquiry held into the misconduct of the appellant as well as to the satisfaction of the Court, that the appellant had unauthorisedly remained absent from her duties from 1st April, 1978 to 17th April, 1978 and from 23rd April, 1978 onward.
2. The facts which form the background of this appeal, shortly stated, are that the appellant who was originally employed by the respondent establishment in 1967 as an airhostess was subsequently, in 1970, designated as ground-hostess in consequence of her marriage. It appears that her husband was working at Jeddah in Saudi Arabia. The appellant was granted sick leave/privilege leave for seventeen days with effect from 29th June, 1977, on medical grounds. After the expiry of the said leave she requested for extension of leave from 16th July, 1977 to 6th August, 1977 which appears not to have been granted. However, thereafter, a certificate was received by the respondent corporation, which was issued by the Senior Medical Officer, Pakistan Embassy, Jeddah, advising thirty days rest to the appellant with effect from 23rd August, 1977. In the meanwhile the appellant also submitted an application, dated 25th August. 1977 requesting for one month's sick leave with effect from 25th August, 1977 which request was rejected by the respondent Corporation. The appellant continued to remain absent from her duties without leave till 9th March, 1978. The respondent Corporation, accordingly, issued a charge-sheet to the appellant, which is dated 16th November, 1977. This charge-sheet was admittedly received by the appellant. On 10th March, 1978 the appellant resumed her duties with the respondent Corporation and it appears that a domestic enquiry was held in respect of the charge-sheet, dated 16th November, 1977 issued to the appellant. It is not known what evidence was recorded in that enquiry or what was the report of the Enquiry Officer as according to the respondent Corporation the papers relating to the enquiry were misplaced and are not traceable. Before joining her service with the respondent Corporation on 10th March, 1978 the appellant, on 22nd February, 1978 had submitted her resignation from service, but the said application was rejected on the ground that it could not be accepted as a disciplinary case was pending against her. Some twenty days after joining her duties with the respondent Corporation i. e. On 1st April, 1978 the appellant again submitted an application for grant of two weeks leave on the ground that her husband was sick at Jeddah and left for Jeddah without approval of the leave. It may be mentioned that 1st April, 1978 was n closed holiday. The appellant resumed her duties on 15th April, 1978 but again requested for futher leave for one month from 21st April, 1978 on the ground of examination of her children. Despite of the fact that the leave applied for was not approved or granted the appellant left for Jeddah and remained absent from her duties with effect from 23rd April, 1978. She continued to be absent till 9th February, 1981 on which date she resumed her duties and was directed to report to the Station Manager, as appears from the Memo. Of the General Manager (Traffic), dated 9th February, 1981. Long before the appellant resumed her duties in 1981 on 17th May, 1978 a charge-sheet is said to have been issued to her in regard to her absence from duties with effect from 1st April, 1978 to 17th April, 1978 and 23rd April, 1978 onwards. This charge-sheet is claimed to have been sent to the appellant by registered post, A/D, but the appellant has denied the receipt of this charge-sheet and furthermore neither any person from the postal Department has been examined to establish the posting or the service of the charge-sheet nor the postal or the acknowledgement receipts in respect of the charge- sheet have been produced. The non-production of these receipts have been explained by the respondent corporation on the ground that the file containing the said receipts has been misplaced and is not traceable.
3. By the Convening Order, dated 8th January, 1981 which was produced before this Tribunal by the Enquiry Officer, Mr. John D'Souza when he was further examined before this Tribunal, the said Mr. John D'Souza was appointed as an Enquiry Officer to hold enquiry into the charges against the appellant and he was asked to record the, relevant evidence and submit his report and appraisal of the evidence recorded in the enquiry proceedings. The Enquiry Officer, by his letter, dated 11th January, 1981 intimated the appellant that he would hold enquiries into her unauthorised absence with effect from 7th August, 1977 until 10th March, 1978 and again from 1st April, 1978 to 17th April, 1978 and continued unauthorised absence from 23rd April, 1978 and that the enquiry would be held on 25th January, 1981 at 10.00 hours, when the appellant should attend alongwith her defence witnesses evidence, if any. On the said date, i, e. 25th January, 1981 the statements of A. Ahad Khan, Administrative Officer (P. S. B.), Bashir Ahmed, Administrative Officer (Traffic Establishment) and the appellant were recorded by the Enquiry Officer, who submitted his appraisal report to the Administrative Manager (Customers Service). In this report, the Enquiry Officer exonerated the appellant of the earlier charge regarding her unauthorised absence from 7th August, 1977 uptil 10th March, 1978, but found her guilty of unauthorised absence from duties with effect from 1st April, 1978 to 15th April, 1978 and again continuously having unauthorisedly remained absent from duties with effect from 23rd April, 1978. A second show-cause notice, dated 27th January, 1981 was thereafter issued to the appellant and alongwith the same was enclosed a photostat of the appraisal of the evidence in the domestic enquiry. It appears that no written reply to the second show-cause notice was given by the appellant but she was given a personal hearing before the Director (Customers Service) and as the management considered that the misconduct of the appellant had been duly established, it dismissed her from service with immediate effect, vide order, dated 8th March, 1981.
The appellant, after serving the requisite grievance notice upon the respondent corporation, filed her grievance petition before the learned IVth Labour Court on 30th April, 1981 which grievance petition as already stated, has been dismissed by the impugned order.
4. I have heard Mr. Shakiel Z. Lari, the learned counsel for the appellant, and Mr. Masood Ahmad Khan, who appeared for the respondent Corporation. Mr. Shakiel Lari has assailed the impugned decision of the learned Labour Court on two grounds namely :-
(a) that the Enquiry Officer was not authorised to enquire into the charge-sheet dated 17th May, 1978 alleged to have been issued to the appellant ; and
(b) that the service on the appellant of the charge-sheet, dated 17th May, 1978 has not been established, nor is there any evidence on record to show that the appellant was informed of her alleged misconduct, relating to her absence from 1st April, 1978 to 17th April, 1978 and subsequently, from 23rd April, 1978 onwards, and consequently, the dismissal of the appellant is in violation of the mandatory provisions of clause (4) of Standing Order 15.
' The first contention of Mr. Shakiel Z. Lari is based on the statement made by the Enquiry Officer, Mr. John D' Souza, before the learned Labour Court that he was appointed to hold enquiry into the charge of unauthorised absence against the appellant with effect from 16th July, 1977 to 6th August, 1977 and continuous absence since 7th August, 1977. It appears that the above statement has either been incorrectly recorded by the learned Labour Court or inadvertently the witness made an incorrect statement. It may be pointed out that not only a period cannot be reckoned from 16th July, 1977 to 6th August, 1977 since the first date is much after the second named date, but there was no allegation at any time that the appellant was unauthorisedly absent with effect from 16th November, 1977. The date 16th November, 1977 relates to the issuance of the first charge- sheet against the appellant and the said charge-sheet, which is produced by the witness before the learned Labour Court mentions the alleged absence of the appellant with effect from 16th July, 1977 to 6th August, 1977 and thereafter, continuously with effect from 7th August, 1977. In any case, whether it was the learned Labour Court which advertently recorded incorrectly the evidence of the witness or the witness made incorrect statement evidence from the statement as recorded, it cannot be inferred that the Enquiry Officer was not empowered to enquire into the second charge, dated 17th May, 1978. It may be mentioned that in his enquiry letter, dated 11th January, 1981 which was admittedly received by the appellant, the Enquiry Officer has specifically referred to the charge-sheet, dated 16th November, 1977 as well as to the subsequent charge-sheet, dated 17th May, 1978. If it was intended to contradict the witness in respect of this letter, it should have been specifically brought to his notice. However, in order to clear up any doubt on this point, the order appointing the Enquiry Officer was brought on the record of this Tribunal, through the Enquiry Officer, with the consent of the learned counsel of both the parties. The pending paragraph of the said order refers to both the charge-sheets, I. e. The charge-sheet dated 16th November, 1977 and that dated 17th May, 1977 and reads as follows :- "You have been detailed as an Enquiry Officer to enquire into the circumstances under which Mrs. Sabiha Yousuf, P-21583, Ground Receptionist was charge-sheeted vide letter No, TM/KAP/P-21583/ 7814027/dated, 16th November, 1977 and further show-cause notice No, FM : KAPIP-21583/78 dated 17th May, 1978 for her unauthorised absence mentioned therein."
' It will, thus, be seen that the Enquiry Officer was appointed to enquire into both the charges against the appellant. The convening order further states that the case file containing 15 pages, was being enclosed for the action of the Enquiry Officer. The Enquiry Officer has further explained that he completed his enquiry on 25th January, 1981 at the request of the appellant who was anxious to return back to Jeddah.
5. I will now proceed to consider the main objection of Mr. Shakiel Lari to the impugned order i. e.
That since the appellant had not been intimated her absence from duties with effect from 1st April, 1978 to 17th April, 1978 and again from 23rd April, 1978 onwards, the dismissal orders are invalid being in violation of the provision of clause (4) of Standing Order 15. It was sought to be argued by Mr. Masood Ahmad Khan that the charge-sheet dated 17th May, 1978 was sent to her correct address at Jeddah by registered post AID, and, therefore, the charge-sheet should be deemed to have been served upon her. According to section 27 of the General Clauses Act, 1897 service by post shall be deenied to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document. It has, however, not been established in this case that the said charge-sheet was posted or that the cover, in which it was sent, bore the requisite stamps.
Neither the postal or acknowledgement receipts in respect of the said charge-sheet have been produced nor has any witness been examined to establish the factum of pre-paying or posting of the document. Mr. Masood Ahmed Khan, however, sought to rely upon the evidence of the Administrative Officer (P.S.B.), Mr. A. Anad Khan, before the Enquiry Officer, wherein he has stated that the show-cause notice, dated 17th May, 1978 was issued to the appellant by the Station Manager. Apart from the fact that the show-cause notice was not issued to the appellant by Mr. A.
Ahad Khan but by the Station Manager, obviously Mr. A. Ahad Khan could not have personally affixed the stamps on the letter containing the charge-sheet or taken it to the post office for posting and registration. It is usual in big offices to have outward register containing the record of the letters posted and despatched but in the instant case even that record has not been produced.
In the circumstances it is not possible to hold, despite the fact that the charge sheet, dated 17th May, 1978 bears on its top right hand corner the words B "Registered A/D" and on the left top corner the address of the appellant that it was in fact sent to the appellant and if so it was through registered post acknowledgement due.
6. The mere fact, however, that the charge-sheet, dated 17th May, 1978 has not been established to have been served on the appellant, would not demolish the case against the appellant if it can be established that the mandatory requirements of clause (4) of Standing Order 15 had been fulfilled in the instant case. It may be pointed out that the allegation against the appellant was that she was continuously absent without leave with effect from 23rd April, 1978. The unauthorised absence continued until 9th January, 1981 when she resumed her duties with the respondent corporation after a lapse of nearly three years. A similar issue. As has arisen in the instant case, was considered by this Tribunal in the case of Khawaja Autocars Ltd. v. Syed Abdur Rehman (1). In that case, while repelling the contention that the charge sheet was served {{FOOT NOTE}}
(1) 1980 PLC 12436 {{FOOT NOTE}} ' upon a delinquent workman after the expiry of one month and ten days of the commencement of the absent from duties of the workman. It was observed as follows :- "As to the second ground, namely, the delay in the service of the charge-sheet, it appears to me that the learned Labour Court has misconstrued the provisions of clause (4) of Standing Order 15.
The said clause renders invalid the service of a show-cause notice after the expiry of one month from the date of the commission of misconduct for which the workman is charged or its coming to the notice of the employer. In the instant case the allegation against the workman was that he had remained unauthorisedly absent with effect from 11th October, 1979 upto 16th January, 1980 when the charge-sheet was prepared. There was thus continuity of the alleged misconduct upto the date on which the charge-sheet was prepared consequently, the .Charge-sheet was prepared and was served upon the workman well within the period of one month from the date of the alleged misconduct of the worker, as provided in clause (4) of Standing Order 15. Both the grounds therefore, upon which the learned Labour Court has tentatively held that the charge-sheet was invalid do not appear upon secrutiny to have any merit and hence the impugned order cannot be sustained on that account also."
7. Mr. Shakiel Lari, however, sought to argue that clause (4) of Standing Order 15 requires bringing to the notice of workman the act constituting misconduct within one month of such act coining to the notice of the employer and according to Mr. Shakiel Lari not only the act of the alleged unauthorised absence from duty of the appellant had been brought to the notice of the employer long before the service of the intimation of holding of the enquiry, dated 11th January, 1981 but in fact it was the case of the respondent corporation itself that it had taken notice of the absence of the appellant and had issued her the charge-sheet, dated 17th May, 1978. He contended, therefore, that the said charge-sheet not having been established to having been served upon the appellant there has been non-compliance of the mandatory provisions of clause (4) of Standing Order 15. In the view of the fact that the absence from her duties of the appellant conti-nued without interruption from 17th April, 1978 upto 8th February, 1981 it was open to the respondent corporation to treat the whole of this absence as misconduct as has been done by it. Since the misconduct constituted by the un-authorised absence of the appellant continued upto 8th February, 1981 the requirement of clause (4) of Standing Order 15 was fulfilled upon the respondent corporation intimating the appellant her misconduct within one month of her reporting back for duties. In fact the Intimation of the misconduct was given to her within two days of her resuming duties. I am, accordingly, of opinion that there has been no violation of clause (4) of Standing Order 15 in this behalf.
8. Mr. Shakiel Lari, however, argued that there was 'a further violation of clause (4) of Standing Order 15. He submitted that the said clause contemplated two opportunities of showing cause to a workman who was proposed to be dismissed from service. The first after he was intimated the misconduct for which it was proposed to remove him and the second during the domestic enquiry.
He sought support for his contention from the decision of their Lordships of the Supreme Court in the case of Dawood Cotton Mills Ltd. v. Guitar Shah (1). I have, however been unable to read anything in the decision of their Lordships which would suggest that two separate opportunities for explanation are required to be given to the delinquent workman, first after serving him with a show cause notice and subsequently during the enquiry proceedings. Their Lordships while construing the requirement of clause (4) of Standing Order 15, have observed as follows :- "In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him. All that this conveys is ; firstly, an opportunity to deny his guilt and establish his innocence which the workman can only do, provided he is told what the charges levelled against him are and the allegation on which such charges are based ; and secondly, an opportunity to defend himself by cross-examining the witnesses and by examining himself or any other witness in support of his defence. As the rules of natural justice are not embodied rules, therefore, compliance is only needed to the extent to which such rules are incorporated in the statutes. Thus, the second requirement of the provision does not travel beyond what is secondly stated."
9. It may be pointed out that in the above case their Lordships have expressly laid down that a second show-cause notice after completion of the enquiry is not a requirement of natural justice.
In the instant case, as already pointed out, even this opportunity of further explanation was afforded to the appellant. Although the letter intimating the appellant that enquiry against her would be held on 25th January, 1981 did not expressly inform her that she was at liberty to submit her explanation to the charges and allegations as stated in the said enquiry letter, but at the same time it did not preclude the appellant from submitting any explanation in respect of the said charges and allegations. The appellant, in her statement made before the Enquiry Officer, admitted that through she had applied for leave, and the same had not been granted, she left for Jeddah on 27th April, 1978 in the hope that her subsequent application made to the General Maneger (P.S.B.) would be accepted. Even if the appellant somehow expected or hoped that her leave application for one month would be granted she should have reported for duty at least after the expiry of the month for which she had applied for leave but she remained absent, without leave, almost for three years and for this absence there is no plausible and reasonable explanation. In her evidence before the learned Labour Court the appellant reiterated her admission that she had been unauthorisedly absent with effect from 23rd August, 1978 up to 25th January 1978. The charge of unauthorised absence for a period exceeding ten days thus stands fully established against her.
10. The upshot of the above discussion is that I find no merit in this appeal and would dismiss the same. {{FOOT NOTE}}
(1) PLD 1981 SC 225 {{FOOT NOTE}}