DECISION This is an appeal filed by the appellant against an impugned order, dated 25-3-1984, passed by the Sind Labour Court No. III, Karachi, who had dismissed the grievance petition of the appellant under section 25-A, I.R.O.
1969.
2. The brief facts of the case are that the appellant-was in the service of the respondent establishment since 2-12-1982 as Accounts Clerk and that his work and conduct was quite satisfactory. On 18-8-1983, the appellant was served with a charge-sheet containing the allegation of his absence from duty since 6-8-1983, without intimation and permission. The appellant denied the charge and contended that he was not allowed to enter into the premises of the respondent establishment on 9-8-1983 That on 7-7-1983, the appellant left the office at 11.00 a.m. Without intimating anybody on the ground of his illness and on 10-7-1983 he sent leave application by registered post alongwith a Medical Certificate issued by a private medical practitioner On 19-7- 1983, the appellant sent a letter to the Managing Director of the respondent establishment alleging therein that one of the Directors, namely, Mr. Hatim, had called him in his office and had abused him in filthy language and for this reason, he left the office at 11.00 a.m.; and that an action against the said Director be intimated to him and that he had also lodged such report with SITE Police. That he was issued a letter to appear before the Enquiry Officer, namely, Mr. Jaffery on 30-8-1983 who was appointed as Enquiry Officer to conduct an enquiry against him for a charge of remaining absent without permission for more than 10 days and all of a sudden he was issued another letter to appear before such Enquiry- Officer on 5-9-1983 and on this date also he was not allowed entry into the premises. On 5-9-1983, again he was not allowed entry into the premises of the respondent establishment and such information was sent by him to the respondent establishment through a telegram, but, the Enquiry Officer had conducted an ex parte enquiry against him and thereafter found him guilty of the misconduct of remaining absent for more than 10 days without intimation.
On 20-9-1983, the appellant was dismissed from service. Therefore, the appellant submitted his grievance notice to the respondent establishment and subsequently a grievance petition before the Labour Court
3. The respondent had resisted the petition and submitted that the appellant had acted in a pre- planned manner after leaving the office on 7-7-1982 without permission and then made false and offensive allegations against one of their Directors. That the appellant had intentionally avoided and boycotted the enquiry proceedings. That the appellant was granted leave with effect from 7- 7-1982 to 4-8-1982: though they did not believe the Medical Certificate issued by a private practitioner. That the appellant was afforded full opportunity to defend himself in a properly and reasonably held domestic enquiry and after the enquiry report holding the appellant guilty of the misconduct, the appellant was also given second show cause and a chance of personal hearing which opportunity too the appellant did not avail. That the appellant was correctly dismissed from service on account of the established charge, therefore, his grievance petition was not maintainable and was liable to be dismissed.
4. Both the parties filed their affidavits-in-evidence and they were duly cross-examined. The appellant, at the stage of final arguments, and submitted an application requesting therein that the Daily Punching Cards of 18 employees of the factory be called to prove that the appellant had seen the said workers on 6-8-1983 and on 9-8-1983 entering the gate which fact would indicate that the appellant was present at the gate and had seen particular workers at particular time. The said application was, however, rejected by the learned Labour Court and thereafter, it had dismissed the grievance petition of the appellant hence, this appeal.
5. I have heard Mr. Latif Saghar the learned Advocate for the appellant and Mr. Khurshid Ahmad Siddiqi, the learned counsel on behalf of the respondent establishment and have also carefully perused the record and proceedings of the case. It was contended by Mr. Latif Saghar, the learned Advocate for the appellant that the learned Labour Court had proceeded on mere assumption and surmises and had failed to appreciate that the appellant was deliberately kept away from the enquiry proceedings. Further, it was pleaded that it was easy for the respondent establishment to keep a worker away from the factory premises on the pretext of his not coming to the mills at all. Mr. Latif Saghar has submitted that it is an admitted position that the appellant was not absent from his duties without permission for more than 10 days, but, due to personal grudge of one Mir. Hatim, a Director of the respondent establishment, he was not purposefully allowed to enter into the gate after expiry of his authorised leave i.e. On 6-8-1983, just to keep him away for more than 10 days and to take subsequent plea of unauthorisedly remaining absent for more than 10 days and thereby to get rid of him and to victimize him. It was further argued that it is again an established fact on record that at all times the appellant had protested to the respondent establishment against this biased and illegal action, but, without fruitful result. It was pleaded by Mr. Latif Saghar, the learned Advocate for the appellant that as a justice and fairplay to an aggrieved party the learned Labour Court should have granted the application to summon 10 workers to prove that he was present at the factory gate on 6-8-1983 and 9-8-1983. On the other hand, Mr. Khurshid Ahmad Siddiqi, the learned Counsel on behalf of the respondent establishment has failed to refer me to any cogent evidence or reasons in support of his case. There is nothing on record on behalf of the respondent establishment in rebuttal of the contentions and pleading of the appellant. The Enquiry Officer was duty bound to afford full opportunity to the appellant to defend the charge, instead of hastily action on the behest of the employer and holding an ex parte enquiry and thereby declaring him guilty of the misconduct. The appellant was entitled to fairly, properly and reasonably defend himself and this opportunity was not afforded either by the employer, Enquiry Officer or even the learned Labour Court . Under these facts and circumstances, I would set aside the dismissal of the appellant from his service.
6. For the reasons stated by me above, I would set aside the impugned order and would allow this appeal. The appellant is directed to be reinstated in service forthwith. However, keeping in view the circumstances of the case, I would not allow him the back benefits.
M.Y.H./942/Lb.S