1. This is an appeal against the order of the learned Chairman, Industrial Court, Central Zone, Lahore passed under section 31 of the Industrial Disputes Ordinance, 1959 whereby the order of dismissal of Talib Hussain, respondent dated 19-7-1967 passed by the District Manager, Government Transport Service, Lyallpur was set aside and he was ordered to be re-instated in service with full benefits. It was observed that the order of dismissal dated 19-7-1967 was illegal for the following reasons:-
(a) That the order of dismissal could not have been passed without the permission of the Industrial Court because Indus--trial Disputes Nos. 9/67 and 14/67-concerning the employees of the Government Transport Service, Lyallpur were pending in that Court.
(b) Neither any charge-sheet was communicated to Talib Hussain nor any inquiry was held against him and the show---cause, notice prior to the order of dismissal was also not given.
2. The facts of the case briefly stated are that Talib Hussain respondent was a junior clerk in Government Transport Service stationed at Lyallpur. On 10-2-1967, he was transferred to the sub- office, Jhang. The respondent on 23-2-67 submitted an application Exh. R-2 to the District Manager, Lyallpur, request--ing him to transfer him somewhere else as a junior clerk, and' not as a store- keeper and in the meanwhile consider his absence from Jhang as leave without pay and if not his resignation be accepted forthwith. In reply the District Manager vide R-3 dated 18-3-67 informed him that the Assistant Traffic Manger, sub-office Jhang has reported that he was absent from duty with effect from 23-2-67 which was against the service discipline. His request for leave was rejected and he was directed to report for duty at his posting station sub-office, Jhang immediately, fail--ing which he was warned that disciplinary action would be taken against him for unauthorised absence from duty. The respon--dent on 23-3-67 again sent an application Exh. R-4 reiterating his previous request. The District Manager on 11-5-67 vide Exh. R-5 replied that since he had already availed of two months leave, which expired on 9-2-67, no more leave was due to him and therefore, he was directed to report for duty at sub-office Jhang immediately, failing which he would be dismissed from service for remaining absent from duty without proper authority and contravening the departmental rules and instructions. He was also informed that in case he did not want to serve in the Depart--ment, he was at liberty - to submit unconditional resignation as required under the rules/terms of his appointment. The respon--dent vide his letter dated 20-5-67 Exh. R-6 replied that since he was neither a store-keeper nor a ledger keeper, he could not maintain the workshop accounts. If he had to be sent to sub-office Jhang he could only proceed there and take over charge of an office clerk. It was also mentioned that if his request was not acceded to, his resignation should be accepted. In reply, the District Manager on 13-6-67 vide Exh.
3. R-7 informed the respondent that the junior clerk posted at sub-office Manager was meant for the sub-workshop there and he was required to keep accounts of stores in order to run the workshop.
4. He was, there--fore, finally directed to report for duty immediately, otherwise he would be dismissed from service for being absent from duty without proper authority. Regarding his resignati6p, it was mentioned that he should submit un-condition, resignation. Thereafter, the Management vide order dated 9-7-67 Exh. R-8 passed the order of dismissal of the respondent on account of his prolong wilful and unauthorised absence from duty with effect from 23-2-67.
2. Mr. Muhammad Zaman Qureshi, counsel for the appel--lant contended that the respondent had lost his lieu on the appointment in view of Standing Order 8(3) of the West Pakistan industrial and Commercial Employment (Standing Orders) Ordi--nance, 1968 and therefore, he could not have been re-instated.
3. Mr. Nazir Ahmad Naz, representative of the respondent, on the other hand, contended that his case did not fall within the ambit of Standing Order 8(3) but tell under, Standing Order 15(3)(e) and therefore proper procedure as laid down under Standing Order 15(4) should have been complied with before the order of dismissal was passed.
4. In order to appreciate these arguments, it will be proper to reproduce the law referred to above.
5. Standing Order 8(3) reads as follows: If the workman remains" absents beyond the period of leave originally granted or subsequently extended he shall lose his alien on his appointment unless he-
(a) returns within 8 days of :be expiry of the leave; and
(b) explains to the satisfaction of the employer his inability to return before the expiry of his leave.
6. Standing Order 15(3) reads as follows:- The following acts and omissions shall be treated as misconduct:- (a)
7. (b)
8. (c)
9. (d)
(e) habitual absence without leave or absence without leave for more than 10 days.
10. (f)
11. (g)
12. (h)
13. (i)
14. (j)
15. (k)
16. (l)
17. In the present case, I find chat no leave, at all, had been given to the respondent and therefore there was no question of his remaining absent beyond the period of leave and as such Stand--ing Order 8(3) is not applicable. He, in fact, has been absent without leave for a period of more than 10 days and therefore his case will fall under Standing Order 15(3)(e) which is a mis--conduct. In order to dismiss a person for misconduct, the follow--ing procedure as laid down under Standing Order 15(4) should have been followed:- No order of dismissal shall be made unless the workman concerned informed in writing of the alleged misconduct and is given opportunity to explain the circumstances alleged against him.
18. The approval of the employer 'shall be required in every case of dismissal and, when circumstances appear to warrant it, the employer may institute independent inquiries before dealing with charges against a workman.
19. From the material on the record, it has been established that no inquiry was held and as such the aforementioned provisions were not complied with. The counsel for the appellant, however; argued that there was no question of communicating charge-sheet and holding an enquiry against the respondent because the District Manager had repeatedly asked him to report for duty but he refused to join. This argument has no force because under Stand--ing Order 15(4) it has been specifically laid down that no order of dismissal can be passed unless the workman concerned informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him.
6. Lastly, I also find that the appellant in his written state--ment has admitted that Industrial Disputes Nos. 9/67 and 14/67 pertaining to Government Transport Service, Lyallpur were pend--ing in the Industrial Court and as such he could not have been dismissed without prior permission of that Court, in this connec--tion, a reference is made to section 30 of the Industrial Dispute Ordinance, 1959, which reads as follows:- Conditions of service, etc. to remain unchanged during the pendency of proceedings. No employer shall during the pendency of any conciliation proceedings or proceedings before a Court in respect of any industrial dispute, alter to the prejudiced of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commence--ment of such proceedings, nor save with the express permission in writing of the Conciliation Officer or Court, as the case may be, shall he during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workman: In view of the above, I hold that the dismissal of the respon--dent was illegal, I accordingly, uphold the order of the Industrial Court, Central Zone, Lahore and dismiss the appal.