DECISION ' This is an appeal against the order, dated 13-12-1989, passed by the learned Presiding Officer, Sindh Labour Court No,III at Karachi, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.
2. The facts of the case are that the respondent was admittedly employed as a workman by the appellants. On 25-11-1985, he was charge-sheeted for habitually remaining absent without intimation and for being in the habit of coming late. After domestic enquiry his services were terminated. Against that order, he filed grievance petition bearing No,22 of 1986 before the learned Labour Court 'which was allowed by the learned Presiding Officer, vide his order, dated 22-4-1987 and the respondent was ordered to be reinstated with full back benefits. However, he kept it open for the appellants to conduct a fresh enquiry against the respondent through an independent enquiry officer. Consequently, a fresh enquiry was held against the respondent in which he was also found guilty of the misconduct, therefore, his services were again terminated by order, dated 22-6-1987. Being aggrieved by this order, the respondent again served grievance notice upon the appellants and then filed his grievance petition before the learned Labour Court.
3. I have heard Mr. Mahmood A. Ghani, learned Advocate for the appellants and Mr. Shafiq Qureshi, the learned counsel for the respondent and have also gone through the record and proceedings of the case.
4. The grievance of the respondent is that the charge-sheet was time-barred as well as vague. It may be pointed that the charge-sheet was issued on 25-111985. It shows only number of days on which the respondent allegedly remained absent or came late in the months from January, 1985 to October, 1985 without specifying the dates on which he had committed the alleged mis-conduct.
In the month of October, 1985, he is alleged to have remained absent for 4 days and to have come late for 4 days, but, no dates are specified. Under Standing Order 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Ordinance), the duty is cast upon the employer to bring the misconduct to the notice of the workman within one month of the alleged misconduct or from the date it came to the notice of the employer, otherwise, he is debarred from dismissing the workman. Thus, the burden of proof would be on the employer to show that he had complied with the provisions of Standing Order 15(4).
5. In the present case, the respondent had specifically raised the plea that the charge-sheet was time-barred and as such it was the duty of the appellants to have shown that within one month from the date of the charge-sheet viz., on or after 25-10-1985 the respondent had on any day came late or remained absent. No such evidence has been produced either before the enquiry officer or before the learned Labour Court. The enquiry report even does not mention the dates on which the respondent allegedly came late or remained absent. It is admitted by Mr. Shaheen Akhtar Kiyani, the Labour Officer of the appellants and also the enquiry officer of the present case that during January, 1985 to December, 1985, the condition of Karachi was not so good politically and there were on certain dates problems of transport due to curfew. Thus, without the dates of the alleged misconduct being specified in the charge-sheet, the respondent was obviously deprived of the fair chance to show that on a particular date, he remained absent or he came late due to disturbance or due to curfew. Even, in the reply to the show-cause notice, the respondent had stated that the conditions in Karachi had affected every employee. He had further stated that whenever he used to remain absent, he used to intimate the employer. This was a plea taken by him even before the enquiry officer. He had also produced before the enquiry officer a certified copy of the cross- examination of one Mr. Salim A. Qadir, Director of Golden Industries, who was examined before the learned Labour Court in the first round of litigation. In the cross-examination, he had admitted that it was correct that the applicant had been submitting leave applications whenever he had absented himself. It appears that this admission of the Director was also not considered by the enquiry officer, who admittedly did not examine Mr. Salim Qadir to find out on what dates the respondent remained absent and on what dates he submitted the applications for leave. The ignorance of the enquiry officer is apparent from para. 9 of his affidavit-in-evidence where he stated that "the details of the number of occasions of late coming in the month as also absence without permission during the month January, 1985 to December, 1985 have been exhaustively mentioned in the charge-sheet." The charge-sheet, however, mentioned the number of days on which the respondent allegedly remained absent or came late for the months from January to October, 1985; and not for the months from January to December, 1985.
6. The above facts show that the enquiry officer had not applied his mind consciously and properly to the evidence on record or had not tried to collect proper evidence to determine the guilt or otherwise of the respondent.
7. Mr. Shafiq Qureshi, learned Advocate for the respondent raised objection that the statements were not recorded on oath by the enquiry officer, therefore, the enquiry proceedings were vitiated.
In the case of Abdul Latif Niazi v. Government of West Pakistan, reported in PLD 1967 SC 62; their Lordships have observed that even where statement was not recorded on oath during the enquiry still it was saved under section 13 of the Oaths Act, 1873. This view was also held by this Tribunal in the case of Sakhawat All Shah v. Karachi Transport Corporation, reported in 1990 PLC 102. This objection of Mr. Shafiq Qureshi is not sustainable.
8. The enquiry officer has mainly based his finding upon the admission of the respondent that he did come late for some time or he did remain absent on some dates. As pointed out, his admission is not absolute and un-qualified, but, he has shown the reason for coming late or remaining absent to be due to disturbances in Karachi and also has asserted that whenever he remained absent, he used to send application for leave. It cannot be said that his admission was such on which he could be punished without any proper charge-sheet or without any proper proceedings.
9. The respondent also taken the plea that he had been victimised, because of the union activities.
The witness of the appellants had admitted in the cross-examination that he was an office-bearer not at the time when he was charge-sheeted, but, at the time when the enquiry was held against him. Be that as it may, the mere fact that the respondent was an office-bearer would not save him from the punishment if the misconduct is proved against him. Mr. Mahmood A. Ghani, the learned Advocate for the appellants has also produced case law to show that mere fact that the respondent applied for leave would not entitle him to remain absent, unless the leave was granted first. I have already pointed that the question was not considered and no evidence was led before the enquiry officer as to on what dates respondent had remained absent and on what dates he moved applications for leave and on what dates the leave application was allowed or refused, therefore, I need not discuss it further.
10. Certain other points have been raised by both the learned Advocates which I need not discuss in view of my finding that the charge-sheet was time-barred and vague as it did not specify on which dates the respondent allegedly remained absent or came late, therefore, due to this vagueness in the charge-sheet, it cannot be said that if the charge-sheet was issued within the period laid down under Standing Order 15(4). I have also pointed out how the enquiry officer did not apply his mind properly to come to a correct finding.
11. The charge-sheet also does not show as to whether on any occasion, the respondent had remained continuously absent for more than 10 days.
12. In view of the above facts, I am inclined to agree with the findings of the learned Labour Court and hold that the order of dismissal of the respondent passed by the appellants was illegal. I accordingly dismiss the appeal.