Mr. Syed Mohammad Imran Jafferi has placed the grievance before the Labour Court that his dismissal from the service in Pakistan Machine Tool Factory was illegal and be rectified by order of reinstatement, with benefits accruing there from.
2. Applicant claims to be a permanent workman, employed in the factory as a fitter. He was given the notice of show cause regarding misconduct of habitual absence from the duty in the month of October and November, 1985.
3. Management held domestic enquiry. He took part in the enquiry. Charge of misconduct was not established and yet he was dismissed from the job.
4. Respondent has contested this application. They have taken their objection that application a/s 25-A does not conform to the requirement of the IRO.
5. Regarding facts, respondent has taken this specific defence that the applicant was habitually absent with many warnings and also absent from duty during the month of October and November 1985, in respect of the notice of charge sheet.
6. Respondent also has contended that Mr. Jafferi, took part in the enquiry, defended himself and had the fullest opportunity to appear before the Enquiry Officer.
7. Respondent supports the order of dismissal in respect of the charge sheet.
R E A S O N S:
1. This is a case of its own exception where Mr. Imran Jafferi was accused of the misconduct of 13 days absence during his employment of Pakistan Machine Tool Factory, the details of the annexed schedule showing absence from 2-10-1985 to 23-11-1985, totalling 13 days of absence, on each date of the lapse of one day and two days as referred in the notice of show cause.
2. The only contention raised by Mr. Imran Jafferi is that the enquiry of which he was asked to face on the misconduct of absence, the charge was not established and he is not Guilty
3. The contention of the respondent was that he was guilty of habitual absence and received -five warning letters dated 18-10-198220-2-19835-2-1985 and 9-4-1985. These warnings were in the nature of the improvement of conduct.
4. Significantly the Court's attention is directed to second: show-cause notice and the reply tendered while Annexure-A/23. This reply is in the nature of an apology, with repentance of the future correction of conduct and particularly with this significant qualification that his first time absence be excused.
5. Prominently, Mr. Imran Jafferi made this endorsement under his own hand, with no compulsion and before the Senior Officer of administration.
6. In this reply tendered another remarkable feature of the case is that Mr. Imran Jafferi has shown no inability due to suffering of a, serious disease of epilepsy which subsequently he has made attempt to justify through Medical Officer, Dr. Khursheedi of the company. In paragraph 3 Mr. Khursheedi has shown that except for the period from 20-9-1980, Mr. Jafferi did not report for attack of epilepsy or he took any treatment from the factory clinic, despite the fact that he was attending the clinic for other type of illness till 23-1-1986. Medical Officer has further referred the record and observed that from period 16-9-1985 to 10-2-1985 he attended clinic four times but he did not disclose that he had attack of this unpleasant disease.
7. Mr. Imran Jafferi has also not disclosed in his grievance application that he was suffering from epilepsy. His notice of grievance is also silent of this aspect.
8. After all these stages, the Court has referred the evidence of Medical Officer who has made the deep analysis of this disease based on his Medical knowledge. No other medical expert has come or the E parties took the choice to weigh the medical data in relation to the disease, which Chief Medical Officer has given the opinion and rather of definite nature to which the Court refers the relevant observations.
He says: "There are several varieties of epilepsy of which the major group is called (grand mal). If the patient follows the treatment, disease can be cured."
9. He says at the second place that the patient (Mr. Jafferi was suffering from grand mal. He used to fist with conversion, with dribbing of saliva.
10. There are also medical cards and the absence applications of various times showing illness, without disclosing what disease he was suffering from. The leave was not sanctioned by the management as well.
11. From the evidence of the Chief Medical Officer if the Court is going to accept his opinion that he was suffering from one of the kinds of epilepsy with the fits, and at the same time and applicant Mr. Jafferi has not disclosed the kind of illness which he was suffering from or in the notice of second show cause he has not referred to that aspect of illness to call for the compassionate feelings, this has put the Court to extreme caution whether the nature of disease of epilepsy was real. Should the Medical Officer of such eminence be disbelieved, particularly when he is on oath to discharge his responsibility before the Court of law and thirdly whether the applicant Mr. Jafferi purposely did not disclose this unpleasant disease fearing of the loss of the service and to loose the social pleasantries. The Court has considered this aspect after going through the evidence of the Enquiry Officer Mr. Ch. Ata Mohammad and particularly Mr. Aslam Fayyaz who is the Administration Assistant Manager. Mr. Aslam Fayyaz has made statement on oath that he is not suffering from epilepsy while referring to paragraph 6.
12. The Court further has taken assistance from his own statement before the Enquiry Officer where also he has made no other confession `but the simple illness and urgent piece of work. But at the same time he has explained that his mother is suffering from serious illness.
13. With this data available, the Court has faced very difficult situation whether there is plausibility in the version of Chief Medical Officer. Of course he has said that he came in the year 1980. At the same time he has given his opinion that he is suffering from grand mal with the fits. It confirms in his own saying that Mr. Jafferi faces this unpleasant disease. But what should be the weight of the evidence of Chief Medical Officer coupled with the circumstances of his admitting absences and the warnings from time to time.
14. If the case is examined from this angle Standing Order 15 clause-E is clear to this effect that if there is habitual absence without leave for absence without leave for more than ten days, it is an act and omission, but that is a misconduct. If the warnings were given from time to time and no action was taken of putting him on the enquiry in respect of the absences, it was purely the privilege of the employer, but nevertheless the responsibility on the employer to the reservation of his right to vindicate action can best be judged that the employee was under warnings and therefore his absence shall be considered as habitual absence and not the past barred by limitation, particularly the employee himself disregarded the rules of discipline either to intimate to the employer through telegram or other message on the following day but in a case of this nature the disregard of the rules of industry or factory were of the higher gravity when the employee first enjoyed the leave and then supposed for the grant of leave with retrospective effect which is not the rule of disciplinary conduct in every activity of life.
15. However the question was specifically asked from the Chief Medical Officer whether disease was beyond the control of human being. Chief Medical Officer has given the opinion that there are always chances of cure provided he received the treatment.
16. If the Court accepts the observation of Chief Medical officer who looks highly reliable from the judicial standard point of consideration, that Mr. Jafferi had the indication of this disease which perhaps the Court observes that he was concealing from the employer for the reason of his unpleasant nature, his case therefore comes within this consideration whether the absence was intentional or wilful or unintentional.
17. If Mr. Jafferi admitted his absence in the notice of show cause, the Enquiry Officer rightly held that he is guilty of absence, in the E circumstances where he did not disclose the true nature of the disease before the employer and availed the leave and made prayer for the compassion.
18. Regarding the quantum of punishment subsection (2) has fixed the liabilities of the punishment namely fine withholding of increment, reduction to lower post and dismissal.
19. The significant reading of subsection (3) also shows that the word treatment has been used as distinguished from the word liability to punishment in subsection (2). In other words subsection (3) classifies misconduct where the acts and omissions have been suggested that what acts and omissions shall be treated as misconduct. The I liability of the punishments have been laid down, in subsection (2) and therefore, the Court has to examine the gravity of the acts and omissions, in what circumstances the Court can equate in the liability of punishment, such as, in the case, like this where it is a misfortune of a human being, who suffers the tragedy, at the same time the sense of duty, is a human perception, which cannot be equated, with whatever the sorrows person, suffers, though requiring compassion.
20. In the result the impugned order of dismissal is modified that his increment is withheld for one year. This should serve as a warning and in the nature of infirmative directions that in such eventuality he must get treatment. The employer is within its jurisdiction to proceed according to law in future. He is reinstated. His leave be J adjusted if it is due under the Factory Act. He can't be entitled to back benefits during period of litigation. If any right of back benefits it has accrued to him prior to coming in the Court, he will be legally entitled to. Although the Court is of the opinion that the prosperity of the industry depends on the working of the employees to earn the legitimate benefits. Intimation be sent of his reinstatement within seven days to the Court.