DECISION ' The respondent, who was employed as a general w Aker, in the Pakistan Tobacco Company Limited, the appellants herein, was charge-sheeted on 11th September, 1980, for habitual absence without leave. The charge-sheet specified seven different dates on which the respondent is stated to have remained absent without leave during a period of seventeen days commencing from 23rd August, 1980 to 9th September, 1980. A domestic enquiry on the aforesaid charge followed and according to the report of the Enquiry Officer, Mr. Viqar Ahmed Khan the charge against the respondent was duly established in the enquiry. A second show-cause notice was, thereafter, given to the appellant and with this notice he was furnished the copies of the report of the Enquiry Officer as well as the statements of the witnesses recorded in the enquiry. He was also heard by the Factory Manager who was his employer but it appeared that the respondent did not want to add anything to what he had already stated before the Enquiry Officer. On the basis of the Enquiry Officer's report the respondent was dismissed from service with effect from 13th October, 1980.
However, the respondent challenged the order of his dismissal before the learned Second Labour Court which has set aside orders and ordered the re-instatement in service of the respondent with full back benefits. The grounds which weighed with the learned Labour Court in passing the said decision are, firstly, that it appeared that the person who held the domestic enquiry against the respondent was not the person who had appointed Enquiry Officer by the Management, secondly, that the Enquiry Officer in his report, had referred to the previous punishments alleged to have been awarded to the respondent, which evidence, on the one hand had not been properly produced before the Enquiry Officer and on the other hand, was intended to or had the effect of influencing the mind of the employer in regard to the quantum of punishment to be imposed on the respondent and lastly, that the evidence before the Enquiry Officer did not establish that the respondent had been guilty of habitual absence without leave. Aggrieved by the above decision the appellants have come up in appeal to this Tribunal.
2. I have heard Mr. M. A. Khan for the appellant company and Mr. Muhammad Shibli, the learned counsel for the respondent workman. I will proceed to examine each of the three grounds which have persuaded the learned Second Labour Court to order the re-instatement of the respondent with full back benefits.
3. The first ground which weighed with the learned Second Labour Court namely that it appeared that the person who held the domestic enquiry into the charges against the respondent was not the person who had been appointed as Enquiry Officer by the management is grounded on the fact that whereas the order, dated 13th September, 1980, states that Mr. Viqar Ahmed designation P.O., is appointed as the Enquiry Officer it was Mr. Viqar Ahmed, Assistant Manager, who held the enquiry into the charges against the respondent and submitted his report to the Factory Manager.
The letter of appointment of the Enquiry Officer itself shows that the case was being sent to the Enquiry Officer and that the witnesses for the prosecution would be the time keeper and the superior (G. S.). This letter and the record of the case were received by Mr. Viqar Ahmed Khan, Assistant Manager and it was he who held the domestic enquiry without any protest from the respondent that he was not the proper person to hold the enquiry. In fact throughout upto the stage of the proceedings before the learned Labour Court no plea was raised by the respondent that View Ahmed who had held the domestic enquiry and submitted his report to the Factory Manager was not the person who was appointed as the Enquiry Officer. There is also not the least evidence on record to suggest that there are tw6 persons in the respondent company bearing the name of Viqar Ahmed Khan one being a P.
0., and other Assistant Manager. Since the respondent appears to have, without objection, taken part in the domestic enquiry, and not questioned at any time, the right of View Ahmed Khan, Assistant Manager, to hold domestic enquiry against him, this plea which appears to have been raised for the first time during the course of arguments before the learned Labour Court cannot seriously be considered. It may be mentioned that Viqar Ahmed Khan was examined before the learned Labour Court and no question was suggested to him that he was not the person who had been appointed as the Enquiry Officer by the Management. The mere fact that Viqar Ahmed who held the enquiry was holding the charge of Assistant Manager while the letter of enquiry mentioned designation of Viqar Ahmed as P. O., would be wholly insufficient in the circumstances for drawing the inference that a wrong person bad held the domestic enquiry against the respondent. Possibly, in the letter of enquiry, through inadvertence, Mr. Vicar Ahmed's designation was incorrectly given.
This inference gains support from the fact that the papers of the case were sent to Viqar Ahmed, Assistant Manager and his report was not questioned on the ground of being made by a wrong person, either by the management or by the workman.
4. It next falls to be considered whether reference in the Enquiry Officer's report about the previous punishments imposed on the respondent workman was invalid and based on no evidence. It may be mentioned that the enquiry report refers to two previous punishments imposed on the respondent. These punishments are referred to at the beginning of the Enquiry Officer's report and the reference in that behalf is as follows :- 10th November, 1979----Annual increment withheld for 12 months (w, e. f. 1st January, 1980 to 31st December, 1980) for habitual absence without leave. Case No, 100. 4th May, 1980-Warned for absence from duty. Fault No, 25 dated 27th April, 1980,"
' It may be noted that both these punishments are in regard to the respondent's absence from duty without leave. The Enquiry Officer, Mr. Viqar Ahmed Khan has frankly admitted in his evidence before the learned Labour Court that reference to the above punishments in his report was based on the personal record of the respondent which was put up before him by his Secretary after the conclusion of the enquiry proceedings. No doubt, as rightly pointer out by Mr. Shibli, neither the charge sheet served upon the respondent makes any mention of these punishments nor was any evidence led in the enquiry proceedings in regard to them, but the punishment which has been awarded to the respondent is not based or founded upon the previous punishments but it is in respect of his absence from duties on seven occasions which took place from 23rd August, 1980 to 9th September, 1980. Furthermore, as already stated alongwith the second show-cause notice which was served upon the respondent, he was furnished with not only the enquiry proceedings but also the report of the Enquiry Officer, which made mention of these punishments. The respondent had due notice of these punishments. The respondent, in his evidence before the learned Labour Court, has not denied the award to him of these punishments. It is, no doubt, possible that these previous punishments may have influenced the competent authority while awarding the respondent the severe penalty of dismissal, but as these penalties were entered in the record of the respondent and the employer is not precluded from consulting the employee's record before deciding the quantum and type of punishment to be awarded to a delinquent workman the proceedings in this case cannot be considered to be invalid or to suffer from any illegality.
5. It is finally to be considered as to whether the charge of habitual absence from duty without leave has been duly established against the respondent. The learned Labour Court has taken the view that on two occasions when the respondent is said to have been absent from duty he was merely late and, therefore, these two occasions cannot be taken into consideration. It may, however, be pointed out that on one of those occasions namely on 28th August, 1980 the respondent was late by four hours out of his total shift period of eight hours and on the second and earlier occasion namely 23rd August, 1980 he was late by two hours. A person who is absent for half the period of his duty cannot really be moldered to be late in attending to his duties but would be considered as being absent for half the day. As such, even if the late attendance of the respondent on 23rd August, 1980 by as much as two hours be kept out of consideration, the respondent was absent from duties on as many as six occasions within a period of seventeen days only. The learned Labour Court has observed that absence of the respondent on five occasions during a total service of over ten years cannot be characterised as habitual. It, however, appears to have overlooked the fact that the absence of the respondent was during a period of seventeen days. It also appears to have overlooked the fact that at least on two previous occasions lighter penalties were imposed on the respondent, once for habitual absence from duty without leave and on another occasion for absence from duty without leave. The misconduct of the respondent is compounded by the fact that his absence without leave was during the period when he had no leave to his credit and all his leave had been exhausted. His conduct and approach to his work can be gauged from his statement made before the Enquiry Officer that he did not apply for special leave as it was too much trouble and waste of time to make an application in this behalf. As to what constitutes habit or is meant by habitual, I would like to cite two authorities in this behalf. In the case of v. The State (1) a learned single Judge of the Karachi High Court while considering what constitutes habit for the purposes of the Sind Crime Control Act, 1975 observed that "habit implies a tendency or capacity resulting from the repetition of the same acts". In the case of Shah Nazar Khan v. Assistant Commissioner S. D. M. Malik, Karachi and others (2) which again was a case under the Sind Crimes Control Act, 1975, a Division Bench construed and described habit as follows :- "Now habit is customary method of doing a thing. It is a customary conduct deriving as a tendency arising from frequent repetition. When a person has repeatedly acted in a particular way at intervals whether regular or irregular for such length of time as that we can predicate with reasonable assurance that he will continue so to act, we may affirm that this is his habit. It would be incorrect to say that a man has a habit of anything from a single act. The Legislature must be taken to have used the word "habit" as meaning persistence in doing an act, a fact which is capable of proof by adducing evidence of commission of a number of similar acts. Habitually must therefore, be taken to mean repeatedly or persistently."
I am satisfied that in the instant case the respondent was guilty of habitual absence from duty without leave in having remained absent from his duties without leave for six times within a short span of seventeen days.
6. For the reasons discussed by me above, I would accept this appeal and set aside the impugned decision of the learned Labour Court. ' The amount of back benefits deposited by the appellant is ordered to be refunded to the appellants.
(1) PLD 1978 Kar. 368 (2) PLD 1977 Kar. 582