DECISION This is an appeal against the order of Sindh Labour Court No, 1 at Karachi, dated 7-12-1988, whereby the grievance petition of the appellant was dismissed.
2. The case of the appellant is that he was a workman working with the respondents. On 23-4-1983, he was refused entry in the respondent's factory to perform his duties, hut, his services were terminated by oral orders. He served the grievance notice upon the respondents on 28-4-1983. In reply to which he was directed to report for duty. On 18-5-1983, when he reported for duty, he was again refused entry in the factory's premises and, therefore, after serving grievance notice upon the respondents, he filed the grievance petition.
3. The case of the respondents is that the appellant was suspected with theft of water cooler and a preliminary enquiry was to be held against him, therefore, he avoided to attend the factory. It was denied that his services were terminated by oral orders or he was refused entry on 23-4-1983 or on 18-5-1983. It is alleged by them that he is avoiding to face enquiry and has refused to accept the charge-sheet.
4. I have heard Mr. Ali Amjad, learned Advocate for the appellant and Mr. Khalid hived, learned Counsel for the respondents and also gone through the record and proceedings of the case.
5. On behalf of the appellant, only the appellant has examined himself and on behalf of the respondents, one Col. (Rtd.) Inamullah was examined. Some other witnesses were produced by the respondents in support of their case and had filed their affidavits-in-evidence, but, failed to produce them for cross-examination, therefore, the side of the respondents was closed. The application of the respondents for permission to tender those witnesses for cross-examination was also rejected by the learned trial Court for the reasons recorded thereon. The respondents also raised the plea that the Standing Orders Ordinance was not applicable to them and at their instance, this objection was tried by the learned trial Court as preliminary issue and objection was dismissed. This objection was not raised in this Tribunal.
6. The grievances of the appellant are two-fold. Firstly, that on 23-4- 1983, he was refused entry to perform his duties and his services were terminated by oral order. Secondly, he contends that even on 18-5-1983, he was again refused entry in the factory. With regard to his contention that his services were orally terminated on 23-4-1983, neither in his grievance application nor in his grievance notice he has mentioned as to who told him about his dismissal or who had terminated his services. However, in his affidavit-in-evidence, he has stated that Col. (Rtd.) Inamullah, Factory Manager had terminated his services. Mr. Inamullah has been examined and he has denied the allegation. In the cross-examination, appellant had admitted that when he arrived at factory, he was made to sit without any reason except that Col. Saheb had sent for him at about 10-30 a m., and that when he went to. Col. Saheb, he reprimanded him and also threatened him that he will be handed over to the Police, therefore, he left the factory and thereafter he did not come to the factory. He had denied the allegation that he was implicated in the theft. It would be clear from his admission in the cross-examination that he left the factory because of the threat that he will be handed over to the Police. Even, on his own admission, he did not go to the factory thereafter. In reply to his grievance notice, the respondents had informed him in the letter, dated 14-5-1983, which has been produced as Annexure 'B' with the grievance application that a preliminary enquiry was in progress in connection with water cooler theft in which he was a party and that while this enquiry was in progress, he remained absent from duty without any information or intimation. The allegations that his services were terminated were denied and he was directed to report for duty immediately. In the reply statement the respondents have contended that the applicant was never removed from service and that he never reported for work and that he had to answer the charges in terms of fresh charge-sheet drawn and in case he was not found guilty, he would be entitled to his salaries and emoluments according to law and rules.
7. With regard to his contention that he was refused entry in the factory, Mr. Ali Amjad has candidly admitted that he was not refused entry on 23-4-1983, but, he was refused entry on 18-5-1983. I have already pointed that from the evidence of the appellant, it appears that he left the factory because of the threat of handing over to the Police and that he did not come thereafter. The question that requires consideration is whether under the circumstances, he could have reported for duty on 18-5-1983. In his grievance notice and grievance application he has alleged that he was not allowed to enter the factory on 23-4-1983 or on 185-1983, whereas in his second grievance notice which is Annexure 'B' to the grievance petition, he has alleged that on 18-5-1983 also he was not allowed to join the duties and was also threatened to be handed over to the Police. In his affidavit-in-evidence he has stated that he was informed that his case was handed over to the police who will look after the matter. Mr. Inamullah appearing for the respondents has denied that the appellant was gate-stopped on any day but instead on 18-5-1983 the appellant had refused to accept the charge-sheet.
8. If all this evidence is considered in just position, it will be seen that the appellant at no stage was refused the entry into the factory's premises though he may not have been assigned an duty as alleged by him. It is alleged by him that on first occasion viz., on 23-4-1983, he left the premises, because he was threatened with Police action. On 18-5-1983, he is charged to have left becuase he was issued charge-sheet which he refused to accept. Evidence on record also discloses that there was a theft of water cooler in the factory and some enquiry was being held. Document, Annexure 'B' produced with reply statement which is signed by Col. (Rtd.) Inamullah, dated 18-4-1983 which shows that water cooler was stolen and 3 persons were suspected including the appellant and according to the respondents, preliminary enquiry was being held. This fact also gains support even from the allegation of the appellant that on the first occasion, he was threatened to be handed over to the Police and on the second occasion, he was told that the matter had been handed over to the Police.
9. It appears from the evidence on record that the respondents have some connections with Defence Forces as they manufacture some items for their use and also one Retired Colonel was the Factory Manager. At the time of incident viz., in 1983, there was Martial Law in force in the country, therefore, the fears of the appellant are understandable. It appears that he either did not attend the factory because of the fear or on the two occasions when he is said to have attended the factory, he left because of that fear.
10. Admittedly the appellant did not come to the factory except on 2 days viz., 23-4-1983 and 18-5- 1983, when according to him, he was refused entry. According to the respondents they had not terminated his services, therefore, he can still join their company and face the charge.
11. Mr. Ali Amjad, learned Advocate had relied upon the case of Beach Luxury Hotel Ltd. v. First Sindh Labour Court Karachi and 8 others, reported in 1976 PLC at 432, wherein a Single Judge of Karachi Bench has observed that as defined in Black's Law Dictionary, the meaning of 'abandonment', was to give up absolutely, to foresake entirely, to renounce utterly, to relinquish all connections with or concern in, to desert." It would be seen, that the appellant had not abandoned his job but had been trying to get himself reinstated as he had been entering into correspondences subsequent to the litigation with the respondents. His Lordship in the said case has further observed that "mere absence itself does not terminate employer's liability". In the instant case even, the respondents have not passed any order terminating the employment of the appellant.
12. In view of the above discussion, I would set aside the impugned order passed by the learned Labour Court and order that the appellant he allowed to c resume his duties subject to the condition that the payment of back benefits, any, to him and his further retention in service would depend upon the result of the enquiry which may be held against him by the respondents.