FARHRUDDIN G. EBRAHIM, J. These are two petitions involving common questions of law and may, therefore, be conveniently disposed of by a single judgment.
2. Petition No. 554 of 1973 is by an employee whose services were terminated for a misconduct namely absence without leave for more than 10 days. The Junior Labour Court before whom grievance under section 25-A of the Industrial Relations Ordinance, 1969 was made by the employee granted the application but his order was reversed in appeal by the Sind Labour Court.
3. In Petition No. 1149 of 1973 for an identical misconduct the employee was dismissed from service, which was challenged by him in an application under section 25-A of the said Ordinance, which was granted but in appeal the Sind Labour Court reversed this order. In these circumstances the employee in Petition No. 554 of 1973 and the employee in Petition No. 1149 of 1973 have come up before this Court in these two constitutional petitions.
4. The common facts in both the petitions are that the charge-sheets for the said misconduct were addressed to the employees by registered acknowledgement post at the addresses given by the employees to their respective employers. The charge-sheet called upon the employee to submit his explanation by a specified time failing which it was stated that disciplinary or necessary action will be taken against the employee for having remained absent without leave for a period exceeding ten days which was misconduct within the meaning of the expression defined in Standing Order 15(3)(e) of the West Pakistan (Standing Orders) Ordinance, 1968, if no reply was received from the employee. The employee made no reply and the employer addressed a second letter under registered post acknowledgment due for holding an enquiry into the misconduct by an Enquiry Officer appointed by him on a date specified therein but again on this day the employee did not present himself with the result that the enquiry, as was indicated in the letter, proceeded ex pane. The Enquiry Officer in both the cases submitted his enquiry report and while in Petition No. 554 of 1973 he recommended dismissal and in Petition No. 1149 of 1973 he left it to the employer to decide upon the punishment to be awarded to the guilty employee.
5. Following this dismissal, orders were addressed to both the employees again by registered acknowledgement due post. It is common ground in both, the petitions that all the letters addressed to the employees namely, the charge-sheet, the notice of enquiry and the dismissal orders were returned by the postal authorities marked un served or not found. It is also common ground in both the cases that the employee was not furnished with a copy of the Enquiry Report nor was he given, a second show-cause notice before passing of the order of dismissal by the employer.
6. In their applications under section 25-A of the Industrial Relations Ordinance, 1969 before the Junior Labour Court the case made out by employees was that their absence without leave for more than ten days was involuntary as they were at the' relevant time in judicial or jail custody in connection with certain labour disputes between their Trade Unions and the employers.
7. The Junior Labour Court in Petition No. 554 of 1973 allowed the application on the ground that the management was not justified in taking the action for the misconduct alleged as the employee was in Jail and that the enquiry was ex parte. In the appeal, the Labour Court came to the conclusion that the absence of more than 10 days contemplated by the relevant Standing Order need not be wilful or voluntary and since admittedly the employee was absent, whether or not to the knowledge of the employer that he was in judicial or jail custody, without leave, he had committed misconduct, which had been duly proved at a fair and reasonable enquiry and the Junior Labour Court was not entitled to sit in appeal over the findings arrived at by the domestic tribunal. As regards the grievance that the enquiry report had not been furnished to the employee nor a second show-cause notice given to him, the Labour Court relied on a decision of the Sind Labour Appellate Tribunal and came to the conclusion that these were not the requirements of law.
8. In Petition No. 1149 of 1973, the Junior Labour Court on the question of interpretation of Standing Order 15(3)(c) was of the same view as the Sind Labour Court in the above case. He further came to the conclusion that the enquiry held was fair and reasonable. Moreover, he found that the petitioner had been dismissed on 14-12-1972 and though he unsuccessfully attempted to join duty on 1-1-1973, he kept quiet for 5J months making his application under section 25-A barred by limitation. The Sind Labour Court in appeal came to the conclusion that the charge-sheet, the notice of enquiry and the dismissal order were in fact not communicated to the employee and that the management made no attempt to repeat the process against employee and nor did the Management care to serve the employees by any other mode. On the question of limitation the Court carne to the conclusion that it was the requirement of law that the dismissal order should be served upon the employee and since this was never done there was no question of limitation running against the employee and the application was, therefore, within time,
9. Mr. Ali Amjad and Mr. Shahenshah Hussain, the leaned counsel for the employees in both the petitions raised three contentions. The first contention was that no charge-sheet was served upon the employee nor the enquiry letter or the dismissal order received by the employee and that these notices were the mandatory requirements of Standing Order 15(4). Admittedly these documents were not served upon the employee for the envelopes, were returned by the postal authorities marked "not found". In Petition No. 554 of 1973 it is alleged that copies of these documents were exhibited on the notice board of the Mills. The employer regarded these as sufficient compliance of law. That the employee was in jail or judicial custody was duly proved before the Junior Labour Court for the employees' statement on oath remained unchallenged in their cross-examination.
The Courts below proceeded on the assumption that the employer was not aware that the employee was in jail or judicial custody. Speaking for myself it was very likely that they were aware of the true situation for the employees had been arrested in connection with some labour disputes with the employer. I am also. Not satisfied that the employer should have rest contended with the return from the postal authority of the letters addressed to the employees with the endorsement not found without caring to ascertain why it was so, possibly from their fellow employees or otherwise I agree with the Sind Labour Court when it states that the employer should have made some attempt to serve the employee with these notices, if not by any other mode, by publication in newspapers.
10. Mr. Ali Amjad invited my attention to a decision reported as Bata Shoe Company v. D. N. Ganguly and others (1961 PLC 1078) where the Supreme Court of India refused to interfere with an order of re-instatement made by a Labour Tribunal on the ground that though charge-sheet had been issued to the employees they could not be served and the inquiry took place without, their knowing anything about the charges or the date of the enquiry and this was so notwithstanding the fact that the charge-sheets had been exhibited on the notice board of the Company: The Court observed at page 1088 as follows: "The charge-sheets in this case were sent to the eleven workmen by registered post and returned un served, because they were not found in their villages. On the same day on which the charge- sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from 23rd February 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the Company and such charge-sheets had been sent to them individually -by registered post acknowledgement due and had also been displayed on the notice boards inside and outside the factory gate and they were required to submit the explanation by 9th March, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were, among those to whom charge- sheets had been sent on or about whom charge-sheets bad been displayed on the notice boards.
The proper course in our view was when the registered notices came back un served in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a were circulation in Bihar with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets though their display on the notice boards of the appellant. In the absence of such provision, the proper course to take was what we-have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the Tribunal that these eleven workmen had no notice of the charges against them and, the date by which they had to submit their explanations as well as the date of inquiry. In these circumstances the order of the Tribunal with respect to these eleven workmen must also be upheld.
I am in respectful agreement with the above observations, and I hold that there was no sufficient compliance on the part of the employer of Standing Order 15(4), which requires that a charge- sheet will be given to the employer and so also notice of an enquiry and of clause (3) of Standing Order 12 which provides that the order of dismissal from service shall be in writing and will state the reason for the action taken, which necessarily implies that this order will be communicated to the employee.
11. Mr. Ali Ahmad Fazeel the learned counsel for the employer invited my attention to Standing Orders 3, 4, 5, 11(2) and sections 35, 39 and 76 of the Factories Act and sought to argue that as these provisions of law, quite clearly provided for affixing of notices on the notice board of an employer, the Legislature approved of such a procedure however, find that the notices under the aforementioned provisions of law are of a general character whereby workers are informed of holidays, pay days, were rates, working hours etc., and in the absence of an express provision in Standing Order 15 that notice contemplated by this Standing Order may be, under one or the other circumstance, affixed on the notice board, I cannot hold that such an affixation, as was done in Mr. Fazeel's case was sufficient compliance of Standing- Order 15(4). Mr. A. A. Fazeel also invited my attention to. The provisions contained in the Code of Civil Procedure regarding substituted service but fairly conceded that they neither applied nor can it be said that in its strict terms they were complied with by the employer. .
12. The second contention on behalf of the employees related to failure to the supply to the employees by their employers a copy of the enquiry report and to give a second show-cause notice before the employer proceeded to make the order of dismissal which was, it was argued, the necessary requirement o clause (4) of Standing Order 15. For this purpose the learned counsel relied on a decision of the Lahore High Court reported in PLD 1972 Lah 699 which undoubtedly supports this view. Mr. Fazeel and Mr. Mansoor Ahmad Khan, the learned counsel for the employers, however, pointed out that this judgment was subject-matter of leave petition before the Supreme Court and though the leave was refused the Supreme Court did not proceed on the basis, as was done by the High Court that the requirements of Standing Order 15(4) were that a copy of the enquiry report should be supplied to the employee or that a second show-cause should .Be given to him. The learned counsel were at pains to point out that the Supreme Court did not interfere with the judgment of the Lahore High Court as according to the learned Judges of the Supreme Court it was necessary and consistent with the principles of justice on the facts of that case that the employees should have been furnished a copy of the enquiry report and a second show-cause notice given to the employees. I am inclined to agree with the learned counsel. Mr. Fazeel in his usual fair manner invited my attention to a recent unreported judgment of a Division Bench of this 'Court in Petition No. 875. Of 1973 in which the conclusion arrived at is that the Supreme Court has in the above case founded its judgment on the interpretation of clause (4) of Standing Order 15 as well as principles of natural justice. I am, however, relieved of examining this matter any further for the employees have in the present petitions made out a case on the basis of violation of the principles of natural justice. As aforesaid the charge-sheets and the notices of enquiry were returned by the postal authorities marked "not found". In the charge-sheets itself it was not mentioned that the action, which the employer proposed to take was of dismissal that action was taken only following the submission by the Enquiry Officer of his enquiry report. The enquiry report did not mention that these letters had been returned un served by the postal authorities. In fact the enquiry report unmistakably seeks to convey that the employees had received these documents and had failed to respond. Moreover, the employees were admittedly in jail or judicial custody and if an occasion had been afforded to them they could have represented in mitigation that they were reasonably prevented from making a leave application. If; therefore, a copy of the enquiry report had been furnished to the employee, and these were admittedly, taken into account by the employer before making the order of dismissal, the employees in response to a second show cause could have pointed out these omissions in the enquiry report, pleaded for a fresh inquiry or at its worst represented that it was not a fit case for dismissal and the employ persuaded to give a lesser punishment ass contemplated by clause (2) on Standing Order 15.
13. The third contention of Mr. Ali Amjad was that the Labour Courts were clearly in error in proceeding, on the assumption that absence simplicitor of more than 10 days without a leave application amounted to a misconduct. The argument was two-fold. Firstly, it was- said that the expression "misconduct" itself imported an element of an intentional improper conduct, a blame- worthy conduct, and secondly since this conduct was being visited upon by pain of dismissal it was necessary that the employee must be possessed of guilty mind, and as in the present case the absence was involuntary there was no misconduct on the part of the employee. Mr. Ali Ahmad Fazeel and Mr. Mansoor Ahmad Khan, the learned counsel for the employers pointed out in reply that the misconduct in question- has been defined by the statute and there is, therefore; no occasion to import other known connotations of this expression and with reference to the argument of actus non facit ream nisimens sit rea, while it was conceded as a well established rule of -interpretation but as always was subject to the Legislature's intention to the contrary. This contrary intention, the learned counsel went on to argue was clearly expressed in the language of the statute as contained in Standing Order 15 clause (3) of which enumerates the acts and omissions which the law treats as misconduct. Sub-clause (a) of this clause 3 makes insubordination or disobedience a misconduct provided it is wilful. Sub--clause (b) refers to theft, fraud or dishonesty in connection 'wits the employers' business or property, which would obviously import a particular state of mind. Sub-clause (c) makes only that damage or loss of employers' goods or property as misconduct, which is wilful. Sub-clause (d) refers to giving or taking of bribe or any illegal gratification. Sub-clause (e) with which we are coned in two parts, namely, habitual absence without leave or absence without leave for more than 10 days. Sub-clause (f) refers to habitual late attendance. Sub-clause (g) to habitual breach of law Sub-clause (h) to riotous or disorderly behaviour 'or acts subversive of discipline. Sub-clause (i) to habitual negligence or neglect of work Sub-clause (j) makes frequent repetition of certain acts and omissions punishable as fine as misconduct and sub-clauses (k) and (I) deal with strike, instigation to strike and go- slow. It will be seen from the enumeration of the acts and omissions treated as misconduct that wherever the Legislature intended that a particular state o mind should be an ingredient of misconduct it has so specifically provided and the omission, therefore, of ingredients of a state of mind in relation to certain acts or omissions which are treated as misconduct assume importance and give us an indication of the mind of the Legislature. A strike or a go-slow is a misconduct irrespective of the state of the mind of the wrong--doer. So also the frequent repetition of acts, which are punishable by a fine or reprimand under clause (i) of Standing Order 15(l) It is in these circumstances that the words "absence without leave for more than 10 days" in sub-clause (e) of clause (3) of Standing Order 15 assume importance. The Legislature has not qualified the words by the expressions wilful or habitual thus making this misconduct a -misconduct without reference to the mind of the person committing the act or omission. A further indication of the mind of the Legislature is clearly available when we examine sub-clause (ii) of clause (1) of Standing Order 15 which makes, among other things disregard or disobedience or rules of orders which invites the punishment of reprimand or a fines while "wilful disobedience is a misconduct under sub-clause
(a) of clause (3) of Standing Order 15. In the first case the state of mind of the wrong-doer was immaterial and in the later a positive ingredient of a misconduct. The Legislature vas, therefore, not unaware of the distinction that it was making in treating certain acts and omissions as misconduct irrespective of state of mind of the wrong-doer, and in the absence of any qualifying words to absence without leave for more than 10 days made this act or omission a misconduct irrespective of the state of mind of the wrong--doer. Mr. Ali Amjad referred to the observation of S. A. Mahmud, J. (as he then was) in a decision in Pak-American Fertilizers hid. v. Industrial Court and others (PLD 1966 Lah. 822) that----- "to constitute misconduct it is necessary that the act should be deliberate and intentional act so that the mind of the persons goes with it of insubordination or disobedience of a lawful order of a superior."
14. Mr. Ali Amjad in his further reply contended that if absence without leave for more than 10 days was simplicitor a misconduct there would be no occasion to provide, as has been provided for by law, for issue of a show-cause notice and holding an inquiry before the employer proceeds to dismiss an employee for this misconduct as there would be nothing to reply and much less to be enquired into. The argument is misconceived for the employer will still have to prove the absence, the non-receipt of a leave application and in an appropriate case the employee may show in mitigation that for a just cause he eras prevented from making the-leave application and also represent that the circumstances justify a lesser punishment.
15. In Petition No. 1149 of 1973 an additional argument was raised by Mr. Mansoor Ahmad Khan the learned counsel for the employer that the employee application under section 25-A was clearly barred by limitation and that the Sind Labour Court had committed an illegality in holding other- were. In this case the employee was dismissed by an order dated, 14-12-1972, which order was admittedly never received by or communicated to him. I have already in relation to clause (3) of Standing Order 12, come to the conclusion that it is its requirement that the, employees should be com--municated an order of dismissal. This employee according to him reported on duty on 1-]-1973 after he was bailed out but he was not allowed to resume duty but significantly even then he was not informed that he had been dismissed from service. According to the employee, and he has so deposed he made grievance of his dismissal as soon as he learnt of it on 25-4-1973 and as no reply was received from the employer he filed the application under section 25-A on 16-5-1973.
In these circumstances I am in agreement with the Sind Labour Court that his application was within time.
16. The result in Petition No. 554 of 1973 is allowed with cost to the petitioner and Petition No. 1149 of 1973 is dismissed with cost to respondent No. 2.