DECISION ' This is an appeal against the order, dated 20-8-1989, passed by the learned Presiding Officer, Sindh Labour Court No,1 at Karachi, whereby the grievance application filed by the respondent was allowed_and< he was ordered to be reinstated in service with all the back benefits.
2. The brief facts of the case are that the respondent was admittedly a workman employed by the appellant's. On 13-8-1986, he was served with a charge-sheet for being in the habit of remaining absent without prior permission for certain dates in the months of April, June, July and August, 1986.
After domestic enquiry, he was dismissed from service, vide order, dated 23-6-1987. Aggrieved by this order, the respondent served a grievance notice upon the appellants and thereafter filed grievance petition which was resisted by the appellants on the ground that the charges have been proved against the respondent in the domestic enquiry.
3. I have heard Mr.Sher Malik, learned Representative for the appellants and Mr. S.P. Lodhi, learned Representative for the respondent and have also gone through the record and proceedings of the case. It is not disputed that on some dates, the respondent had remained absent as he had to attend the Labour Department in connection wth the registration etc., of the Union. It is further submitted that there was no practice in the Appellants establishment to issue orders either granting leave or not granting of leave, therefore, the management had made wrong entries in the registers in order to victimize respondent because of his union activities. The appellants' witness, Mr.Habibullah had produced certain leave applications moved by the respondent as Annexures 'C' to 'F', but, there is no evidence if the grant of these applications was communicated to the respondent. No such question was suggested to the respondent in his cross-examination. It is also admitted that no explanation was called from the respondent with regard to alleged absence on the above dates prior to issuance of the charge-sheet. It is admitted that the respondent was the President of the Union, which was the C.B.A. For the year 1986-87. It is also admitted that there are 3 unions in the appellants establishment and the question of holding referendum was pending before the Registrar, Trade Unions, which according to Mr.Sher Malik, was decided in October, 1986.
The witness of the appellants had, however, admitted in the cross-examination that the C.B.A.
Proceedings were commenced before the Registrar, Trade Unions in March, 1986, and had continued for long period and he could not say if it continued till August, 1986. Keeping in view the above circumstances, it cannot be said that the respondent had not satisfactorily explained the charges levelled against him.
4. Admittedly the respondent was in the employment of the appellants for about 5/6 years when he was charge-sheeted. However, the charge-sheet shows only his absence in April, June, July and August, 1986, when the C.B.A. Proceedings were admittedly pending before the Registrar, Trade Unions. In the case of Amin Fabrics Ltd. v. S.L.A.T. Reported in 1985 PLC 764, a learned Division Bench of Sindh High Court have observed, as under:- "We are inclined to hold that in order to bring the charge of habitual absence without leave, it is incumbent upon an employer to prove that the worker concerned is in the habit of remaining absent without leave and the habit cannot be proved by quoting a few instances in a period of three months out of a total length of service of ten years. In order to constitute being an habitual absentee without leave, it is necessary that there should be series of acts of remaining absent without leave I repeatedly committed during the entire tenure of the service."
5. This case was referred to and relied upon and followed by another learned Division Bench of Sindh High Court at Karachi in Constitution Petition No,D-934 of 1988, decided on 31-10-1989.
6. There is no evidence in the instant case to show that at any time prior to 1986, the respondent had remained absent without intimation so as to hold him l0 guilty of charge of habitually remaining absent without leave.
7. It may also be pointed that the Enquiry Officer also did not appear to have conducted the enquiry impartially and fairly. The enquiry papers show, that the witness produced by the management was neither cross-examined by the respondent nor by the Enquiry Officer; whereas the respondent was cross-examined at length by the Enquiry Officer. Mr. Sher Malik, the learned Representative for the appellants stated that the enquiry officer has died, therefore, he was not examined. Be that as it may, as pointed above, the charges against the respondent do not appear to have been proved from the evidence on record and as such the impugned order of dismissal of the respondent had been rightly set aside by the learned Labour Court. I find no merits in this appeal which is dismissed.