DECISION This is an appeal filed by the appellant, against an impugned order, dated 24-11-1984, passed by the Sind Labour Court No.II, Karachi, who had dismissed the grievance petition of the appellant filed by the appellant under section 25-A, I.R.O., 1969.
2. Brief facts of the case are that the appellant was a permanent workman in the respondent establishment for more than 20 years and he was alleged to have remained absent without leave for more than 10 days from 19-2-1984 to 29-2-1984. That as he was suffering from Schizopherenia, therefore, he was got admitted in Asghar Hospital, Karachi at the expenses of the respondent establishment and remained there under treatment with effect from 12-3-1984 till 29-3-1984 and thereafter he continued to work on his usual post with effect from 9-5-1984 to 6-6-1984 when a letter of dismissal of his services was served upon him on the ground that he remained absent without leave from 19-2-1984 to 29-2-1984, i.e. For more than 10 days. It is the case of the appellant that he was unauthorisedly absent for more than 10 days as 24th and 25th of February, 1984 are weekly holidays and that he was neither issued a Show-Cause Notice nor he was afforded any opportunity to defend himself on the alleged charge of misconduct, therefore, his dismissal was mala fide, illegal and contrary to the principles of natural justice and liable to be set aside.
3. The respondent establishment resisted the petition raising the legal objections, firstly, that the appellant had no right guaranteed or secured under any Law, settlement or award to prefer the grievance petition; secondly that in dismissing the services of the appellant provisions of the Standing Orders Ordinance, 1968 were not infringed; and that the appellant did not come to the Labour Court with clean hands. As regards the facts, it was admitted by the respondent establishment that the appellant was their permanent workman, but, as he remained absent for more than 10 days without leave or intimation with effect from 14-2-1984 to 25-2-1984, therefore, vide letter, dated 22-2-1984 he was asked to intimate the cause of his absence, failing which disciplinary action would be taken against him. It was further submitted by the respondent establishment the son of the appellant namely, Noor Muhammad, who was also an employee of the establishment had submitted an application on 28-2-1984, wherein he had submitted, that the appellant had gone to his native place due to some domestic affairs. Therefore, since the unauthorised absence exceeded 10 days with effect from 14-2-1984 to 25-2-1984, a show-cause notice was issued to the appellant's address which was returned undelivered but, it was served upon the appellant personally on 4-3-1989 Therefore, in view of an unsatisfactory reply to the show-cause notice a domestic enquiry was conducted against the appellant full opportune was given to him and that the charge of misconduct was prove against him, so, he was rightly dismissed from service, hence, to appellant could not maintain his grievance petition under section 25-I I . R . O . , 1969, which was liable to be dismissed.
4. Both the parties filed their respective affidavits-in-evidence and they were duly cross-examined.
During the course of the cross examination of the appellant, he produced two documents in evidence as Exhs.3-A and 3-B and thereafter, the learned Labour Court h dismissed the grievance petition of the appellant, hence, the pres appeal.
5. I have heard Mr. Ali Amjad, the learned Advocate for appellant and Mr. S. Qamaruddin Hassan, the learned Counsel on behind of the respondent establishment and have also carefully perused record and proceedings of the case. It was submitted by Mr. Amjad, the learned Advocate for the appellant that it was an admit position that the period of absence of the appellant was not m than 10 working days, since Friday and Saturday i.e. 24th and 2 of February, 1984, were closed holidays in the respond establishment, therefore, after excluding these two of-days, alleged unauthorised absence of the appellant was not at all 10 d to be punishable under the provisions of the Standing Orders 15(3)(e) of the Standing Orders Ordinance, 1968 as it has to be interpreted in a manner that such an interpretation would not make the provisions redundant. Mr.Ali Amjad has contended that under the provisions of Factories Act, no adult worker shall be allowed or required to work in a factory on the weekly holiday unless, the employer has delivered a notice to the officer of the Inspector of the Factories of his intention to require the workers to work on the weekly holiday, but, in the present case, there was no Notice to the office of the Inspector of Factories showing the intention that the appellant was required to work on weekly holidays, i.e. 24and 25th of February, 1987, thus, it cannot be claimed by the respondent establishment that the appellant was required to work on 24and 25th of February, 1987. It was further pleaded by Mr. Ali Amjad for the appellant that the suffering of mental disease of schizopherenia was corroborated by the circumstantial evidence that admittedly the respondent establishment had itself referred the appellant to Asghar Hospital for treatment. Mr. Ali Amjad had also pointed out that the so-called Enquiry Officer had acted upon beyond the charge to which the appellant was required to face in the enquiry proceedings, i.e. He held the appellant guilty of the misconduct of remaining absent unauthorisedly with effect from 19th February to 3rd of March, 1984, instead of the dates of 19th and 29th of February, 1984 in the original charge-sheet, hence, the alleged findings of the Enquiry Officer were biased, perverse, illegal and without jurisdiction.
6. On the other hand, Mr. S. Qamaruddin Hassan, the learned Counsel on behalf of the respondent establishment has nothing new to add in his arguments which he had already submitted before the learned Labour Court . He has, however, failed to submit anything in rebuttal of the legal and factual position of the case, as has been contended by Mr. Ali Amjad, the learned Advocate for the appellant, and thus, failed to establish his case. The argument of Mr. S. Qamaruddin Hassan is that if two holidays were given toth th the appellant, then, no case under Standing Order 15(3)(e) will ever be proved inquiry case. This is because two holidays intervene every week. But, in this case, there is circumstances that the appellant was sent to Asghar Hospital subsequently. This shows the intention of the respondent establishment. What for he was sent to Asghar Hospital., This circumstances goes in favour of the appellant. '
7. I, therefore, hold that the learned Labour Court was incorrect in holding the appellant guilty of the misconduct of having remained unauthorisedly absent from his duties with effect from 14th February to 25th of February, 1984, and not excluding the weekly holidays at the time of calculation and all other subsequent proceedings against the appellant were also quite illegal and not sustainable, hence, liable to be set aside.
8. For the reasons stated by me above, I would allow the appeal and set aside the impugned order.
The appellant is directed to be 1 re-instated in service with full back benefits forthwith.