ABDUL QADEER CHAUDHRY, C J.--The petitioner was employed in the establishment of respondent No,
3. He was dismissed from service vide order dated 16-6-1987. The petitioner challenged the said order by way of filing an application under section 25-A of I.R.O., 1969, stating therein that he was a permanent employee of the respondent No, 3 and his services were terminated on the ground of absence from duty. The respondent No, 3 contested the application. The Labour Court framed three issues, which are as follows:--
(i) Whether the application is barred by time ?
(ii) Whether the applicant was dismissed after adopting due course of law ?
(iii) Whether the applicant is entitled to the relief claimed for?
2. The Labour Court dismissed the application holding that the same is barred by time. This order was set aside by the Labour Appellate Tribunal and the case was remanded for trial on merits. After remand the inquiry was conducted by the Labour Court. It was observed that the service of notice has not been effected on the petitioner, therefore, dismissal order was set aside and the petitioner was reinstated in service with the direction that fresh inquiry be conducted against the petitioner.
The petitioner un-sucessfully challenged the order of Labour Court before the Labour Appellate Tribunal. The petitioner, therefore, has filed the present petition.
3. The learned counsel for the petitioner has submitted that the order of the Tribunal is bad in law as no fresh enquiry could be conducted against the petitioner once it was held that the notice has not been served on the petitioner. The learned counsel in support of his contention has referred to Standing Order 15(4) of the Industrial and Commercial Employment (Standing Orders) Ordinance, which reads as under:-- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct (within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer) and is given an opportunity to explain the circumstances alleged against him. The approval of (the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman: Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer' shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."
4. According to the learned counsel if misconduct was not informed within one month, no action could be taken against a worker on the ground of misconduct. According to learned counsel section 15(4) is a penal statute and it is to be strictly construed. Where the legislature has used negative language it is more necessary to construe it rigidly and strictly. As no notice was served upon petitioner within one month, therefore, fresh inquiry could not be conducted. The word "information" has not been defined in the Ordinance. The learned counsel for the petitioner has relied upon Wharten's Law Lexicon Fourteenth Edition page 511 "Information" an accusation, or complaint; also, communicated knowledge. In Venkataramaiya's Law Lexicon 2nd Edition page 113 Information from external source and Ballentine's Law Dictionary 3rd Edition 621 "Information" In common parlance, acquired knowledge or knowledge of facts which advise and lead to the acquisition of knowledge.
5. We have considered the contention of the learned counsel but we do not consider that the definition of "Information" is material for resolving controversy in the present petition. The contention of the learned counsel is that the alleged misconduct must be brought to the notice of the worker within one month and as the petitioner has been re-instated no fresh inquiry could be ordered by the Labour Court as the period of one month had already expired. The ex parte inquiry was conducted against the petitioner as such the order as to the holding of fresh inquiry is without lawful authority. The learned counsel has referred to Dilkusha Enterprises Ltd. v. Abdul Rahsid and others (1985 SCM R 1882) but the facts are distinguishable as in the cited precedent it was held by the Junior Labour Court that the closure of factory was mala fide and illegal by way of consequential relief the Court ordered re-instatement of workers in service with back benefits. This order was upheld upto the level of High Court. The precedent does not support the contention of the petitioner. The learned counsel next referred to Dawood Cotton Mills Ltd. v. Guftar Shah and another (PLD 1981 SC 225) but this authority goes against the petitioner. It has been observed at page 231 as under:-- "This statement of the principle was approved by the Court of Appeal. Therefore, on this principle where the person against whom action is proposed to be taken by his own negligence impedes the actual service of notice, he cannot thereafter be heard to say that he was not actually served and for that matter to challenge the decision taken in his absence. It applies on all fours to the case of respondent No, 1 as there was nothing further which the provision enjoyed to give to him an opportunity of being heard, .the more so when the notices at his village address were accepted in which case also the want of knowledge could not be pleaded."
In the instant case the notice was sent on the address furnished by the petitioner himself but he was not available there. Learned counsel next referred to National Bank of Pakistan and another v.
Muhammad Asif Ahmad and 2 others (PLD 1985 Quetta 100). This case also does not apply to the facts of the present case.
6. On the other hand learned counsel for the respondent has referred to Shamimullah Khan v.
Messrs Avery Scales Ltd. (1980 PLC 701) and Syed Mukhtar Hussain Shah and 2 others v. Punjab Labour Appellate Tribunal, Lahore and another (1980 PLC 985). In the first mentioned case it was held that "thus the requirements of clause (4) of Standing Order 15 that the alleged misconduct be brought to the notice of the offending workman within one month of the said misconduct and a reasonable opportunity be given to him to explain his conduct have both been fulfilled in the instant case. The mere fact that the formal charge-sheet was served upon the appellant much later is, therefore, immaterial. The appellant was not only fully aware of the fact that he had remained absent without leave and against the specific instruction of the respondent agency from 4th August, 1976 upto 31st August, 1976 but as already pointed out, had tried to justify his absence by his letter, dated Ist September, 1976. I am, accordingly, of the view that the learned Labour Court rightly rejected the contention that the charge-sheet was not maintainable on the ground that it was served upon the appellant beyond the prescribed period."
In the second case it has been held as under:-- "Learned counsel has contended that under the relevant law the Management could commence the enquiry against the petitioners through notice and charge-sheet within one month from the date of the misconduct, that period having expired by the time the Appellate Tribunal decided the appeal, no fresh enquiry could be held on the basis of the earlier charge-sheets; that according to the finding of the Appellate Tribunal, the petitioners were not available at their known addresses and because the management was aware of it, therefore, notwithstanding the issuance of notices and publications in the newspaper, the petitioners were not duly served and lastly that the High Court failed to see the attending circumstances in which the petitioners were proceeded against.
Learned counsel has also contended that the action by the Management was mala fide. Learned counsel agrees with the proposition that in a given case if an employee intentionally avoided service of notice, charge-sheet issued within the specified period this would not render publication in the newspaper as ineffective. He however, contended that this would not apply to the present case because of the attitude of the Management.
' We are unable to agree with the learned counsel. The findings of fact in the order through which the petitioner's appeal was accepted is that the petitioners kept themselves in hiding and that is the reason why they were not served at their known addresses. The Management as the proceedings show made all the reasonable efforts to serve the petitioners. As held by the High Court, they have already been shown undeserved sympathy and favour by the Appellate Tribunal in setting aside their dismissals. However, the petitioners have been afforded another opportunity of defending themselves in the enquiry of which they have now sufficient notice. The learned Single Judge in the High Court has not ignored any vital aspect of the matter. The petitioners did not come before the High Court with clean hands. This is not a fit case for grant of leave. This petition accordingly is dismissed."
The above two cases apply to the facts of the present case. In Mrs. Sabiha Yousuf v. Pakistan International Airlines (1982 PLC 584) it has been held that since the misconduct constituted by the unauthorised absence of the appellant continued upto 8th February, 1981 the requirement of clause
(4) of Standing Order 15 was fulfilled upon the respondent Corporation intimating the appellant her misconduct within one month of her reporting back for duties.
7. The contention of the petitioner's learned counsel cannot be accepted that if a notice under section 15(4) is not served within one month of the alleged misconduct no proceeding for misconduct could be taken against a worker. Because an indifferent worker may avoid the service of notice and then come forward with a plea that no notice could be served upon him after expiry of one month. The intention of law is that a workman must be informed of the misconduct within one month but if a worker has himself taken such steps as to frustrate provision of law then he cannot be heard that provisions of section 15(4) have been violated. It is not the case of the petitioner that he was present on duty. It is not his case that he had applied for grant of leave.
Whereas the case of the respondent is that he was absent without any leave. The petitioner had furnished his home address on which notice was sent to him but according to endorsement of the Post Master the petitioner was not present in Sakran. Thereafter inquiry notice and dismissal order were also sent to the petitioner which returned unserved with the same report. Under section 15(3)
(e) of the Ordinance habitual absence without leave or absence without leave for more than ten days shall be treated as misconduct. The petitioner in this petition has admitted that dismissal order dated 16-6-1987 was served upon him later on and he has initiated proceedings under section 25-A of I.R.O. As the petitioner is himself responsible for contributory negligence as he failed to provide another address to respondent No, 3 when he left his home town, it cannot be said that no inquiry can be conducted about the misconduct of the petitioner. The order of the Labour Court in the circumstances of the case is fair and we do not see any force in this petition, the same is dismissed with no order as to cost.