This appeal is directed against the decision of the learned VIth Labour CourtHyderabad , given on 20th January, 1982, allowing the grievance petition preferred by the respondent workman challenging his dismissal from service and directing the appellant-Company to re-instate him in service with back benefits.
2. The facts, which constitute the background of this appeal are that on 7th March, 1981, the respondent, who was employed as a Sectionman in the appellant-Company, as incharge of 2 machines, was sought to be served with a charge-sheet to the effect that he had been habitually absenting himself from his duties and was therefore, allegedly guilty of an act of misconduct under Standing Order 15 (3) (e). In the charge-sheet, it was asserted that the respondent had remained absent from 19th April, 1978 to December, 1978 for 53 days ; that from January 1979 to December 1979, he had remained absent for 15 days : that from December, 1980 to Janu6ry, 1981, he had remained absent for 26 days and that from January 1981 to 7th March, 1981 he had remained absent for -2 days. The respondent, however, refused to accept the charge-sheet and hence it was sent to his home address, as registered with the appellant-Company, by registered post, A/D. The cover containing the charge-sheet, however, was returned undelivered to the appellant company with the remarks of the postal authorities that delivery thereof had been refused by the addressee.
The appellant company, thereupon vide its letter, dated 10th March, 1981, appointed Muhammad Kamil, Inchage Personnel Department of the appel--lant company as the enquiry officer and directed that the enquiry be held on 16th March, 1981. It appears that .Not only this letter was sent to the respondent workman but a copy thereof was pasted on the Notice Board of the company, as appears from the endorsement at the foot of the letter itself, On the same date, in response to the respondent's letter, dated 9th March, 1981 requesting for a copy of the charge-sheet in Urdu, the appellant company wrote to the respondent informing him that there was no provision for the supply of the charge-sheet in Urdu and advising him t4, submit his explanation within 24 hours. The enquiry which was scheduled to be held on 16th March, 1981 was postponed by the enquiry officer to 24th March, 1981 as the respondent workman did not turn up in the enquiry proceedings. In the meanwhile on 22nd March, 1981, the respondent submitted his explana--tion to the charge-sheet, dated 7th.March, 1981. It may be pointed out that this reply has been given by the respondent in English. The explanation of the respondent is restricted to his alleged absence for 2 days in 1981 and no reference is made therein to the charges of his absence without leave during the years 1978;1979 and 1980.
3. Even on 24th March, 1981, the date to which the enquiry had been adjourned by the enquiry officer, the enquiry was not held as the respondent failed to turn up to participate in the enquiry proceedings. The enquiry proceedings were thereafter adjourned to 29th March, 1981 and 1st April, 1981. On neither of these dates the respondent appeared for participating in the enquiry proceedings The enquiry proceedings were ultimately adjourned to 7th April. 1981 on which date the respondent appeared and participated in the enquiry proceedings'.` On the said date, Islam Beg Assistant Production Officer in the appellant-Company was examined by the enquiry officer and he testified about the absence without leave of the respondent from 1978 to 1981. After the statement of this witness was recorded and he was cross examined by the respondent, the enquiry proceedings were adjourned to 9th April, 1981 at the request of the respondent. However, neither on the date nor on the subsequent adjourned dates, i.e. 11th April, 1981 and 12th April; 1981 the respondent appeared for participating in the enquiry, but as he sent application for adjournment, the proceedings were finally adjourned to 13th April, 1981. As even on this date, the respondent workman failed to turn up for enquiry the remain--ing enquiry was held -ex parts and the enquiry officer submitted his report to the Management in which he held that the charge of habitual absence without leave from duties was established against the respondent workman. The respondent thereupon, was served with a detailed second show-cause notice on 14th April, 1981. He submitted a lengthy reply to the second show-cause notice, but as this was not found satisfactory by the Management, he was issued a letter of dismissal dated 19th April. 1981. The respondent challenged the orders of his dismissal through a grievance petition preferred before the learned VIth Labour Court , passed the impugned decision. The learned Labour Court repelled the contention of the appellant company that the respondent was not a workman for the purposes of the Standing Orders., and hence his grievance petition was not maintainable. It further held that as the enquiry officer was appointed and an enquiry was ordered before the explanation of the respondent was received and considered by the manage--ment, the subsequent enquiry proceedings were invalid, that as the charges related to the years 1978, 1979 and 1980, they could not form the basis of the dismissal of the respondent, and that in any case, the punishment imposed on the respondent workman was much to severe specially if only his absence for 2 days in 1981 was to be considered.
4. I have heard Mr. Raes Muhammad Mushtaq, the learned counsel of the appellant-Company and Mr. Lshaq Abbasi, Advocate, who appeared for the. Respondent w man.
5. The first group on which the impugned decision of the learned Labour Court is based is that the enquiry officer was appointed and date fixed for the holding of the enquiry before the explanation of the respondent workman to the charge-sheet was received and considered by the management. In support of its view that such a course rendered the subsequent enquiry proceedings invalid, the learned Labour Court has placed reliance on 3 decisions by the Punjab Labour Appellate Tribunal reported as Post Master-General, Central Circle, Lahore v. Izharul Haq (1978 PLC 288), 1978 PLC 232 anti 1980 PLC 136. In the case of the Izharul Haq, it was held by the learned Chairman of the Punjab Labour Appellate Tribunal that. Holding of an enquiry before receiving explanation of the employee was tantamount to putting the cart before the horse and since it was incumbent upon the employer to scrutinize the reply to the charge-sheet and decide whether or not the enquiry was to be held, the charge-sheet was clearly in violation of law. The reported case, however, does not give the facts of the case, or circumstances in which the holding of the enquiry was ordered before consideration of explanation of the workman to the charge- sheet. Unfortunately the L. S. L. R. Series in which the 2 other cases relied upon by tile learned Labour Court are reported are not available in this Tribunal.
Labour Court . His sole explanation for refusing to take delivery of the charge-sheet was that he could not accept it without understanding and knowing the contents on the charge-sheet. The management, thereupon, was constrained to send the charge-sheet to the respondent at the address registered with the Company, by registered post, A/D. The company took further precaution of pasting the copy of the charge-sheet on the Notice Board of the factory. The charge-sheet sent at the home address of the respondent was returned undelivered by the postal authorities with the endorsement that the addressee had refused to accept the delivery of the same. In the circumstances, the appellant company was fully justified ii ordering the holding of an enquiry and appointing an enquiry officer without taking further steps for obtaining explanation of the respondent. In this behalf, I may refer to the following observations of Muhammad Haleem, J., as ,my Lordship then was, in the case of Dawood Cotton Mills Ltd. v. Guftar Shah (PLD 1981 SC 225).
". ....Where the person against whom action is proposed to be taken by his own negligence impedes the actual service of notice, he cannot there--after be heard to say that 'he was not actually served and for that matter to challenge the decision taken in his absence."
6. As the respondent had not only refused to take personal delivery of the charge-sheet at the factory premises but also refused to accept the charge- sheet sent' to him at his home address through- the post, the appellant---Company would have been justified in staking immediate ex parse proceedings against the respondent. However, the appellant-Company showed extra-- ordinary patience and allowed further time to the respondent to submit his .j explanation which he ultimately did on 22nd March, 1981. Although the; f respondent had refused to accept the charge- sheet on the ground that he wanted an Urdu translation thereof, it 'is pertinent to note that not only is the reply to the charge-sheet in English -but even the signature of the respondent on the explanation is in English. In any case, the point which I would like to emphasise is that the explanation of the respondent was received. And considered by the management before the enquiry commenced on 7th April, 1981. This Tribunal has held inn the case of S. M. Irfan v. Pakistan Defence Officers Co-operative Housing Society Ltd. (1981 PLC 192) that even a simultaneous issuance of the charge-'sheet and the appointment of the enquiry officer would not necessarily vitiate the subsequent enquiry pro--ceedings. A similar view was taken by the Lahore High Court in the case of Ferozedin v. Government of West Pakistan (1972 PLC 521), which decision apparently was noticed by the learned Chairman, Punjab Labour Appellate Tribunal. I am, therefore; unable to concur in the view of the learned Labour Court that the appointment of the enquiry officer by the management or the decision to hold the enquiry, vide the letter, dated 10th March, 1981, without receipt of the explanation of the respondent workman, vitiated either the subsequent proceedings or invalidated the order of dismissal in respect of the respondent.
7. I am also unable to agree with the view of the learned Labour Court that the charge-sheet of habitual absence from duties served upon the respon--dent, in so far as it related to the period from )978 to end of 1980, was in violation of the provisions of clause (4) of Standing Order 15 and was, therefore, to that extent invalid. It may be pointed out that sub-clause (e) of clause (3) of Standing Order 15 makes habitual absence from duties without leave, a misconduct punishable with dismissal or any- other punish--ment specified in clause (2) of Standing Order 15. Obviously, it would be difficult to establish habitual absence from. Duties if the charge is to be confined to a period of one month from the date of the charge. It is obvious that habitual absence is meant to cover reasonably long period. Since absence from duties contemplated by the aforesaid sub- clause could beat widely separated dates, what has to be considered is whether ,the last absence from duties without leave is within the period of one month contemplated by clause (4) of Standing Order 15. It may also be mentioned that all that clause (4) of Standing Order 15 requires is that misconduct: should be brought to the notice of the workman within one month. It appears that as early as 1st January, 1979, the respondent was informed of his remaining absent without leave from his duties for a period of 53 days in the year 1978. In the case of Atlas Group of Companies Employees' Union v. Atlas Autos Ltd, (1981 PLC 341), the workman was charged with remaining absent from his duties during 3 different periods in the years 1978 and 1979. The charge-sheet was found to be valid and in accordance with law. In the earlier case of Muhammad Muneer v. Bawany Violin Textile Mills Ltd. (2), the Chairman, Sind Labour Court-held a worker who had remained absent with intervals for 13 days in 4 months period and had similar records in past years was guilty of habitual absence without permission for the purposes of sub-clause (e) of clause (c) of Standing Order 15. In the case .,ported in 1969 P L, C 1439, the Appellate Tribunal found that the workman ,-;vas absent on 5 occasions during the period of 3 months. It was held that his action fell within the mischief of sub-clause (e) of clause (3) of Standing order 15. I am, therefore, of the view that the charge-sheet against the respondent is not violative of clause (4) of Standing Order 15. .
8. Finally the view expressed by the learned Labour Court that the penalty of dismissal imposed on the respondent was too extreme appears to be outside the scope of the authority of the Labour Court. What the Labour Court has to see is whether a misconduct falling under clause (3) o Standing Order 15 has been property established against a workman through proceedings taken in accordance with the law: Once this has bee so established, it is not for the Labour Courts to consider or interfere with the punishment imposed .On the workman by the management so long as the punishment is of the type specified in clause. (2) of Standing Order 15. In the case of Pakistan Tobacco Company Ltd. v. Chanan Khan and others Civil Appeal-No. K-136 of 1976, decided on 26th January, 1980, the facts were that a workman in the Pakistan Tobacco Company was dismissed from service on the charge of theft as during his search by the security staff, while the workman was leaving the premises of the factory, 1 packets of Gold Leaf Cigarettes were recovered from his, possession. The learned Junior Labour Court before which the dismissal orders were challenged by the workman considered' the punishment imposed by the company to be excessive and accordingly substituted the punishment of dismissal with that of termination of services, purporting to act under subsection (5) of section 25-A,
1. R. O. Their Lordships of the Supreme Court held that no authority vested in the Junior Labour Court- to substitute the punishment and observed as follows :- "The first Junior Labour Court has found no flaw in the proceedings which led to the order of dismissal but mitigating circumstances to disturb the order of dismissal and thereby substitute it with termina--tion of service. The termination of service is not a punishment prescribed for misconduct under Standing Order No. 15 (2) consequent upon such finding having been arrived at in accordance with the procedure prescribed by Standing Order 15 (4). However, under Standing Order 12 (6) the services of an employee can, be terminated simpliciter for misconduct. There is a marked difference between the two provisions; accordingly, if the termination of service was not a punishment for misconduct it could not be- substituted for dismissal which is so prescribed merely on the ground that subsection (5) of section 25-A of the Industrial Relations Ordinance empowered it to pass `such orders as may tie just and proper in the circumstances of the case.' This expansion refers to an order passed in accordance with law as the word: just" and "proper" reflect his meaning. This bang so the First Junior Labour Court could not substitute a punish--ment which is not prescribed under the garb of the exercise of that power. Further, it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of the Statute and if the employer chooses to award dismissal, the First Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment."
9. For the reasons discussed by me above, I am unable to concur in the view taken by the learned Labour Court . I am satisfied that the misconduct of the respondent workman was duly established in a domestic enquiry which was properly held and that the enquiry officer gave every opportunity to the respondent workman to defend himself against the charges levelled against him. I would accordingly, set aside the impugned decision of the learned Labour Court and would allow the appeal. The back benefits deposited by the appellant-Company are ordered `to be refunded.