DECISION ' This appeal has been received back by remand from the learned Division Bench of the Sindh High Court at Karachi, under their order dated 31-10-1989 in Constitution Petition No,D-934 of 1988.
2. I have heard Mr. Muhammad Humayun, learned Advocate for the appellants and Mr.Umar Hayat Sandhu, learned counsel for the respondent.
3. The facts of the case appear, to be that the respondent was employee of the appellants since 1974. He was charge sheeted for remaining habitually absent and for absence for more than 13 days vide charge-sheet dated 8-12-1985. After domestic enquiry, he was found guilty of misconduct and was dismissed from service. Aggrieved by this order the respondent after service of the grievance notice upon the appellants filed the grievance petition before the learned Labour Court. The learned Labour Court held the respondent guilty on charge of habitual absence but reduced the punishment to stoppage of increment for one year. The appellants filed appeal in this Tribunal which was decided by this Tribunal vide order dated 24-4-1988, whereby the appeal of the appellants was allowed and the order of dismissal was restored. This decision of the Tribunal was impugned by the respondent before the Hon'ble High Court. The relevant part of the observation of the learned Division Bench is produced as under:- "2. We are of the considered view that learned Appellate Tribunal has failed to determine the crucial point as to whether the petitioner is guilty of any misconduct as defined under section 15(3) of the Standing Orders Ordinance. The case of the appellant obviously falls under clause (e) of section 15(3) which makes "habitual absence without leave" a misconduct. Learned counsel for the petitioner referred to the judgment in the case of M/s. Amin Fabrics Ltd. v. Sindh Labour Appellate Tribunal 1985 PLC Labour Cases 764 which discusses and defines habitual absence and holds that habitual absence cannot be proved by quoting a few instances in a short period out of a long period of service. The relevant portion of the judgment is quoted below:-- '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 repeatedly committed during the entire tenure of the service.'
3. It was incumbent upon the learned Labour Court to judiciously determine as to whether allegations in the charge-sheet constituted misconduct under any of the clauses of section 15(3) of Standing Orders Ordinance in the light of the decided cases one of which is referred to above instead of relying upon the statement of petitioner in which he had admitted the fact of his absences as given in the charge-sheet but had denied that his absences constituted misconduct.
We are, therefore, of the view that the impugned decision of the Appellate Tribunal dated 24-4- 1988 cannot be sustained and is, therefore, set aside and the case is remanded to learned Tribunal for decision in the light of above, observations and in accordance with law."
4. The observations in Para. 3 would clearly show that their Lordships desire the Labour Court to judiciously determine whether allegation in charge-sheet constituted misconduct under section 15(3) of the Standing Orders Ordinance. Apparently, their Lordships also desire, that such charge should be proved by the appellant by showing the respondent was in habit of remaining absent and there were series of such acts during most of his period of service.
5. Under the circumstances, the impugned order of the learned Labour Court is set aside and the case is remanded back to the learned Labour Court for fresh decisions as in the light of the observations of their Lordships. The case would dispose of within six months. The parties are directed to appear before the learned Labour Court on 16-4-1990. The parties may be allowed to lead further evidence if they so desire.