DECISION ' This appeal is directed against the order, dated 30-11-1986, passed by the learned Presiding Officer, Sind Labour Court No, 1 at Karachi, whereby he allowed the grievance petition filed by the respondent and ordered that the respondent stood restored to his original post as if no dismissal/reversion order was passed and his back benefits should be paid to him within thirty days.
2. The facts of the case in brief are that the respondent was working as an assistant with the appellants at the relevant time. On 30-5-1982, he was charge-sheeted on 3 counts. First, he was alleged to have remained absent for 32 days. In the second charge it was alleged that he had remained absent from 19-5-1982 to 26-5-1982 and the third charge related to his absence of 24 days from 17-4-1982 to 10-5-1982. A domestic enquiry was held. The Enquiry Officer found the respondent not guilty of the first two charges, but found him guilty of the third charge of unauthorized remaining absent for 24 days viz., from 17-4-1982 to 10-5-1982. On the finding of the Enquiry Officer, the competent authority passed the order of dismissal of the respondent from service on 31-10-1983. On the review application his order of dismissal was converted into reversion as senior clerk, vide order, dated 31-1-1983. The respondent served grievance notice upon the appellants on 31-3-1984, and thereafter filed grievance petition before the learned Labour Court on 12-6-1984. The appellants resisted the petition on the ground that the respondent was dismissed on the charge of misconduct after due compliance of the procedure. He further raised the plea that the grievance petition was time-barred.
3. I have heard Mr. Gul Muhammad Soomro, the learned representative for the appellants corporation and the respondent, in person.
4. The learned Presiding Officer framed the following 2 issues:--
(i) Whether the application was time-barred?
(ii) Whether the impugned order was legal and valid?
5. The learned Presiding Officer of the Labour Court was of the view of that the grievance petition was within time as it was filed within the period of 51/2 months from the date of cause of action viz. 3-1-1984. The grievance petition was filed on 12-6-1984. Admittedly no reply to the grievance notice, dated 31-3-1983 was sent. Under section 25-A(1) of I.R.O. 1969, within 3 months of the day of cause of action arises, a worker may give grievance notice to the employer. Under subsection (2) the employer has to give reply to the grievance notice within 15 days of the date the grievance brought to his notice. Under proviso of subsection (4), a worker who desires to take matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or as the case may be from the expiry of the period mentioned in subsection (2).
6. As pointed above, the grievance notice was given on 31-3-1984. The document Exh. D-II produced with the grievance petition is an office memo., dated 2-4-1984 under which the District Manager sent the grievance notice to the Managing Director of the appellants. The grievance notice, therefore, came to the notice of the appellants on 2-4-1984. Under subsection (2), the reply had to be communicated within 15 days viz., by 17-4-1984. Under proviso of subsection (4), the grievance petition has to be filed within 2 months viz., 17-6-1984, whereas it has been filed on 12-6- 1984, therefore, the learned Labour Court had rightly held that the grievance petition was not time- barred.
7. The contention of the respondent that the charge-sheet was time-barred also does not have any force. The respondent is punished for remaining absent from 17-4-1982 to 10-5-1982 and the charge-sheet was served upon him on 30-5-1982, as such it was within one month of the period of his absence.
8. It is not disputed that the respondent had remained absent for the period, in question, for which he has been punished. The impartiality of the Enquiry Officer also appears to be apparent from the fact that he found the respondent not guilty of the 2 charges. No illegality has been specifically pointed out in the conduct of the enquiry. It is, however, alleged that the Enquiry Officer did not take into consideration the applications of the respondent for leave during this period. I have gone through the enquiry report and find that the Enquiry Officer had considered the application of leave moved by the respondent. According to him, the respondent had sent application for leave from 17-4-1982 to 19-4-1982 on the ground that due to total breakdown of water supply at Landhi Korangi he could not attend office. This was not granted. Again, he sent an application for extension of leave from 20-4-1982, which was also not granted. He was sent notice for resumption of duty on 29-4-1982 by registered post at his residential address, provided by him in his personal file. Again, the respondent sent an application for extension of leave up to 5-5-1982 which was also not granted and again a notice was sent to him for resumption of duty on 6-5-1982, but, he reported for duty on 11-5-1982. In the view of the Enquiry Officer, respondent had remained unauthorized absent from 17-4-1982 to 10-5-1982.
9. The Standing Order 8(2) deals with the leave of the workman. It provides that the workman who desires to obtain leave of absence shall apply to the employer who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date of application or within three days thereof, the order shall be given on the same day. If the leave is refused, the reason have to be recorded, in writing, and if the workman so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman if his address is available and if such reply is likely to reach him before the expiry of the leave originally granted to him." The leave applications have not been produced by either party before the learned Labour Court. From the record it appears that even the first application for leave was not made by the respondent in person, hut, obviously it was sent either through some person or through the post. There is nothing on record to show that he desired the communication of the order to him and as such it was his duty to find out whether the leave was granted to him or not. Similarly the other applications for extension of leave also, as is evident from the report of the Enquiry Officer do not appear to have been made in time so that the reply could reach to him before the expiry of the leave. Therefore, the appellant was not required to send the respondent any intimation in writing. However, it has come on the record that 2 notices were sent by registered post on respondent's known residential address for resumption of the duties. In the instant case, it appears that the respondent had granted himself the leave and remained absent without ascertaining as to whether the leave was granted to him or not. In his grievance petition as well as in his evidence, he is silent about the reason for these applications for the extension of his leave. During the course of arguments, he submitted that he did not attend the office because there was total stoppage of water in his house due to bursting of water supply of the K.D.A. He further submitted that later on his child became ill and was operated upon. Be that as it may, the burden to prove that for the reason beyond his control respondent could not attend the office or could not even ascertain whether the leave was granted or not was upon him. There is absolutely no such evidence. Therefore, even if the notices sent to him by registered post on his one address for resumption of duty were not received as alleged by him, still his absence for this period without leave remains unexplained and unauthorised. The absence without leave for a period more than 10 days would be misconduct within Standing Order 15(3)(e).
10. In reply to the charge-sheet, the respondent has stated that as regards the absence from 17-4- 1982 to 10-5-1982 he has submitted applications through his wife and subsequently through post under Certificate of Posting, but, he could not attend the duty because of operation of his daughter.
Even, in this reply he did not say that he had asked the appellants to communicate the decision to him. It may be pointed that no evidence has been produced with regard to the operation of his daughter or the bursting of the K.D.A. Water pipe. In view of the above facts, the respondent was guilty of misconduct under Standing Order 15(3)(e).
11. The punishment awarded to him initially of dismissal appeared to be out of proportion of the misconduct which was rectified by the appellants and was converted into reversion. Reference may be made to one letter produced by the respondent as Exh. A.W.1/14, dated 1-11-1985 viz., after the first order of dismissal. This letter shows that he was given two alternatives, one was dismissal and second was reversion, but, he could not exercise the option. He, therefore, requested that his case may be reviewed and he may be called personally when he will be able to avail the best alternative suited to him. It appears that on this application of review that alternate punishment viz. Lesser punishment was imposed.
12. In view of the above circumstances, in my opinion, the order of reversion did not call for any interference by the learned Labour Court.
13. The respondent pleaded that he had been victimized vis., the punishment awarded to him was with mala fide intention. What is victimization, has been discussed by learned Single Judge of Calcutta High Court 1960 PLC 439, wherein it was observed that "victimization" means one of two things. The first is where the workman concerned is innocent and yet he is being punished because he has in some way displeased the employer. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence simply because he has incurred the displeasure of the employer. But, where it is found that the workman is guilty of gross misconduct, then, there cannot be any question of victimization." In the instant case, the respondent was guilty of misconduct and the punishment awarded to him was not out of proportion to the misconduct. Therefore, the appeal is allowed. The impugned order of the learned Labour Court is set aside and the original order of reversion of the respondent is restored. However, as the respondent has been promoted as per orders of the learned Presiding Officer of Labour Court since 1986, the appellants would have had an opportunity to watch his conduct for nearly last 2 years. If his conduct has been found satisfactory, then, it is suggested that the appellants may consider the desirability of continuing him in his present position.