The applicant Mohammad Munir had filed this application under Standing Order 18(b) of the West Pakistan Industrial and Com--mercial Employment (Standing Orders) Ordinance, 1968, praying for his re-instatement with the respondents as Electric Welder in which capacity he was employed with them since 25-7-1962. The case of the applicant is that on 11-1-1969, he was served with a charge-sheet to which be replied. Thereafter he was directed to participate in, what he described as, a sham enquiry in which the enquiry officer's attitude was partial and the statements of witnesses not recorded properly. Also that he was not given sufficient opportunities to cross- examine the witnesses. There--after he was dismissed on 23-1-1969. His case is that the punishment accorded was excessive as there are number of workers who remained absent without intimation for a long period. The reply statement of the respondent is that the applicant was a habitual absence and had been warned for several times in the past for such misconduct.
He was charge-sheet on 11-1-1969, for being a habitual absence without leave. A domestic enquiry was ordered on 18-1-1969, for 23-3-1969. It was conducted by the Labour Officer as the enquiry officer, the applicant participated in the enquiry and was permitted to cross-examine the witnesses. Applicant did not examine any defence witness. The enquiry officer submitted his report holding the charge against the applicant established and was according v dismissed, the action taken being strictly in accordance with law by the order of dismissal which was acknowledged by the applicant.
2. In this Court, applicant examined one Mr. Mohammad Khalid a Welder with the respondent, on the plea that the applicant was provided with a broken and scarred dotted screen glass which does not prevent the eyes being hurt whilst welding was being done. It may be stated that the glass is provided to shield their eyes from the glare and the sparks during a welding operation. This witness was not examined in the enquiry. Applicant's own statement is that he had reported to the Management for insufficient protection to his eyes as the glass of the screen provided to him was broken and dotted. He there--fore preferred to work at times without this glass on account of which his eyes had become weak sad swollen. He stated, he reported to the Engineer Mr. Mohammad Amin, but was not given any other glasses and as he almost lost his eyesight, he therefore remained absent from work for several days. Applicant also complained that he was not assisted by any representative of the Union, that Mr. Mahmood Amin, the Engineer, gave evidence during the enquiry in his presence but in English. In cross-examination he stated that he complained orally to Mr. Mohammad Amin, that his foreman used to work as a Welder with the same glasses, that he contributed to the social security fund but did not avail of its facilities. He further admitted that he was not given annual leave as his total attendance was less than 259. For the same reason he has not availed of annual leave in the past to or three years. He produced three papers bearing his thumb-impression which were obtained during the enquiry (Exh. R-4) and admitted that his thumb-impression was obtained on all papers during enquiry. Mr. Muzaffar Hussain gave evidence on behalf of the respondents. He was appointed as the enquiry officer and stated that the entire proceedings were contented in Urdu and not in English, that applicant had never complained about the screen glasses being broken or dotted, and stated that if a worker desires a representative of the Union to be present during the enquiry, he is allowed to do so, that the applicant had not objected to the enquiry by him and that the enquiry was conducted in the proper manner.
3. The evidence brought on record, establishes that the applicant has remained absent without permission several times inspite past and that this was indeed his habit on his own admission.
Applicant has stated that he had not availed of his annual leave for the past to or three years owing to his remaining absent on leave without permission and his total attendance per year being less than 250. The circumstances further established that the allegation of broken glass or screen being provided to the applicant during his welding operation is also an after--thought. Be that as it may, applicant has admitted that his foreman used to work with the same glass and there is no doubt that if the applicant was or had actually severely injured his eyes, there was nothing to prevent him applying for leave in the proper manner. The charge against him was for remaining absent away from work without the necessary permission to do so and it was on the charge that the enquiry officer recorded the evidence of witnesses and was constrained to remark that applicant's plea of illness due to a broken glass screen was an afterthought. Further more applicant had admitted that he had contributed to the social security fund but did not avail of this facility nor have himself treated by the obtaining of medical certificate on the ground of his allegedly injured eyesight.
4. His allegation against the enquiry officer and the manner of the enquiry officer is entirely unfounded. Applicant has admitted that three papers Exh. R-4, which are the enquiry proceedings, were read over to him on which he put his thumb impression. The entire proceedings, as the enquiry officer stated, were conducted in Urdu. There is no application on record of applicant's objection to the manner of the enquiry. No mala fide have been attributed to the enquiry officer. In the circumstances, there is no doubt that the enquiry proceedings were held in a proper, fair and impartial manner.
5. The next plea of the applicant that he was not represent--ted in the enquiry by a representative of the Union. Mr. Muzaffar stated that if requested the representative of the Union is called during the enquiry. It has been held several times that merely because an enquiry officer does not allow a worker tot be represented by a representative of the Union it does not imply that the enquiry was defective or lead to the conclusion that the rules of natural justice have been violated. In 1961 PLD 714, their Lordships of the Supreme Court of India observed as follows:- "The mere fact that a workman was not allowed to be helped by other workmen or of any particular individual during an enquiry by the employer into charges of misconduct will not make an enquiry improper or illegal."
6. That same principle was upheld in 1961 PLC 1550. In 1961 PLC 424, the Appellate Tribunal hold that :-- "The refusal of the enquiry officer to permit him to be represented by a co-worker amounts to the denial it is submit--ted of natural justice. There is no force in this contention."
7. I therefore hold that even if the enquiry officer did not allow the applicant to be represented by a representative of his Union, the enquiry cannot be said to be impartial or unfair.
8. The case against the applicant was concentrated on his being a habitual absentee from work without permission. In his report, the enquiry officer has stated that applicant was in the habit of remaining absent from duty without intimation or leave of absence, that he had during 1963 remained absent for one day in October, six days in November, four days in December, and to days in January 1969. Thus he had remained absent with--out leave for 13 days in four months. He had a similar record of absence without leave in the past years. In 1969 PLC 1439 the Appellate Tribunal considering a similar case hold that absence on five occasions over three months with the past record was sufficient to constitute habitual absence without permission within the meaning of Standing Order 15(3)(e). It is not necessary that the applicant should have been charge-sheeted earlier in respect of the earlier cases of absence without leave for his consistent conduct in this case amounts to his continues habit of being absent without leave. The last point is ml respect of the punishment of dismissal of the applicant in view of this continued misconduct. It has been held that it is not for a Court to consider what punishment should have been awarded by the employer so long the employer is entitled to dismiss his employee on the ground of misconduct. In 1966 PLC 45 their Lordships of the Supreme Court of Pakistan have, held that the award of punishment for misconduct under the Standing Orders, if any, is a matter for the Management to decide and if there is any punishment imposed, the Tribunal should not interfere. The Tribunal does not require to consider the propriety or adequacy of the punishment or whether it is excessive or to severe.
9. For these reasons I hold that the order of dismissal of the applicant was in accordance with law, that applicant was therefore rightly dismissed for persistent absence on leave without permission.
His application is therefore dismissed.