1. MD. ANWAR HOSSAIN (CHAIRMAN). This is an application under section 25(1)(b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, for re-instatement in service with back wages.
2. Fact of the case is that complainant 1st party Reza Khan was Head Ministry in the employ of the 2nd party. In September 1968 he was duly confirmed at a wage of Rs. 250 per month. According to the complainant he fell ill and could not attend to duty from 11-3-1970 and accordingly applied for leave by sending a petition. From 16-3-1970 there was a strike in the Mill and the strike continued till 26-4-1970. On 28-4-1970 the complainant went to join his duties but he was not allowed to join. On 29-4-1970 the complainant was discharged on the ground of keeping continued ill health and also on the ground of unauthorised absence from 11-3-70. On 30-4-1970, however, discharge order was withdrawn and on the same day the charge-sheet was submitted against the complainant -to show cause why he should not be discharged on grounds of physical incapacity, continued ill- health and absence on that account.
3. The complainant denied the charges and explained his position but his explanation was not accepted. He was censured. But in consideration of his old age the Management asked him to join on condition of discharging without notice if he again absents without leave. The complainant did not like the condition and did not join. He sent a representation but it was not accepted and he was discharged on 20-5-1970.
4. On 1-6-1970 the complainant filed a grievance petition by producing fit certificate from the Civil Surgeon, Bogra, but got no reply. Thereupon the present case has been filed on 8-7-1970 for re- instatement and back wages.
5. The 2nd party Management, United Metal Works, Bogra, resists the application. Their defence in substance is that the complainant is physically unfit and he often absented without leave and so he was charge-sheeted and after considering his explanation he was discharged. The application is also challenged as barred by limitation.
6. Point for decision of the trial is
(1) Whether the application is barred by limitation and
(2) Whether the complainant is entitled to any, relief.
7. FINDINGS AND DECISION Point No. 1-As regards limitation, the complainant was discharged on 20;5-1970 and he submitted .a grievance petition on 1-6-1970 and when he got no reply he came with this application to the Labour Court on 8-7-1970. Under law the applicant can wait for one month for reply of grievance petition and upon reply can come to Labour Court within one month. So the applicant can get two months of limitation from the date of grievance petition. In that sense the application is in time and not barred by limitation.
8. As regards point No. 2, there is no denial of the facts that the complainants was absent from duty on medical ground with or without leave being previously granted for some days from 1968. From the charge-sheet filed on 30-4-1970 it would appear that he was absent for 3 days in 1968, 25 days in 1969 and 23 days in 1970 up to 11-3-1970. This period of absence was as we hear were converted to leave with or without pay. Under law a worker is entitled to certain period of casual leave, earned leave and medical leave and absence above men--tioned is not in excess of the leave entitled. So on the ground of A absence for those days there cannot be any charge. In the charge, there is no ground of unauthorised absence. The charge is simply a charge of physical incapacity. But the Management did not medically examine the complainant before coming to the decision that the complainant is physically unfit. On the contrary, the complainant submitted with his grievance petition a fit certificate from Civil Surgeon, Bogra. So discharge on the ground of physical incapacity is untenable. The discharge order dated 29-4-1970 on ground of physical incapacity once was -withdrawn on 30-4-1970. Another charge .on the same ground on the same day is not permissible. The charge is, therefore, t untenable and discharge on that charge is unlawful.
9. The fact that the complainant was absent from 11-3-1970 to 28-4-1970 has been explained by the undisputed circumstances that there was a strike in the Mill from 16-3-1970 to 26-4-1970. So discharge of the complainant is in the circumstances arbitrary and unlawful.
10. Petitioner is also found by appearance medically fit.
11. The applicant is, therefore, entitled to re-instatement in service with some back wages. In our opinion, half back wages for the period from date of discharge is sufficient.
12. Members were consulted and their opinions were taken. Hence.
13. ORDERED That the application be allowed on contest. The complainant Mr. Reza Khan be re-instated in service with half back wages.
14. 2nd party Messrs United Metal Works Ltd. be directed to re-employ the complainant within 1.5 days of Order with half back wages from the date of discharge.