DECISION ' These two appeals are filed against the order, dated 1-12-1990, passed by learned Presiding Officer, Sindh Labour Court No,IV at Karachi, whereby he allowed the grievance petition for reinstatement of the workman Mirza Nasimuddin (hereinafter referred to as the 'Respondent') without back benefits. The employer namely M/s. Pakistan Machine Tool Factory (Pvt.) Limited (hereinafter referred to as the 'Appellant') filed Appeal No,KAR-275 of 1990 against the order of learned Labour Court reinstating the respondent whereas the respondent filed Appeal No,KAR-14 of 1991, against the order of learned Labour Court denying him back benefits. I intend to dispose of both the appeals by this Single Decision.
2. I have heard Mr. Muhammad Humayun, learned Advocate for the appellants and Mr. Al-Haj Farid Gul Khan, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts of the case are, that the respondent was a permanent workman working with the appellants. On 10-1-1989, he was served with a show-cause notice with regard to his absence from duty without leave from 24-11-1988 to 15-12-1988. He replied to the charge sheet alleging therein that his wife had tried to poison him and therefore he reported in the police and had undergone treatment in the Hospital and that he sent application for leave on 3-12-1988. However the explanation was not found satisfactory and domestic enquiry was ordered by the appellants. The respondent participated in the enquiry but he was found guilty of the aforementioned misconduct in the domestic enquiry. Consequently the services of the respondent were terminated vide dismissal order, dated 27-5-1989. Being aggrieved by this order he served grievance notice upon the appellants, but failing to get redress, respondent filed grievance petition.
4. The fact that the respondent had remained absent from 24-11-1988 to 15-12-1988 without prior permission is not disputed. The respondent had taken two fold defence. Firstly he contended, that he was given poison by his wife first on 10-11-1988 and then on 14-11-1988 for which he filed report with the police on 14-11-1988 and therefore he was hospitalised from 24-11-1988. Secondly that he had sent application for leave on 3-12-1988 requesting for leave from 24-11-1988 to 15-12-1988 but the same was not replied to by the appellant in contravention of the provision of Standing Order 8 of the West Pakistan Industrial and Commercial Employment (Standing Orders). Ordinance, 1968 (hereinafter referred to as the 'Ordinance'). The respondent had also raised objection that the charge-sheet/show-cause notice was tiniebarred and was beyond the period prescribed under Standing Order 15(4). The learned Labour Court found the show-cause notice to be within time. As no cross-objection or appeal has been filed against this finding of the learned Labour Court, it has attained finality. 1, therefore, need not discuss that aspect of the case.
5. With regard to his first contention regarding poisoning and illness the respondent has produced a copy of the Report in the Police Diary, dated 14-11-1988 which is Exh. A.W.2. In this Report he has shown his suspicions that probably his wife has mixed something in his food and therefore he had fallen ill. He has also produced a Certificate which is dated 14-11-1988. It simply shows that he was referred by the Gulberg Police Station to Abbassi Shaheed Hospital and he was examined for the purpose of treatment. It does not show that he was admitted in the hospital. Dr. Anwar Ali was examined by the learned Labour Court. He had examined the respondent on 14-11-1988 in the Abbassi Shaheed Hospital. He states that the respondent claimed to be suffering from food poisoning, but on examination there was nothing abnormal and there was no symptom of any disease/poisoning. He has produced Medical Certificate Ex. AW/1, and stated that the patient was discharged after examination in about half an hour and was not given any medicine. Mr. Sharafuddin, Inspector of Gulberg Police Station was also examined by the respondent. He has produced the certified copy of aforementioned Station Dairy which is Ex. AW/2. He states that he had not submitted any challan against the wife of the respondent. Thus apart from the word of the respondent there is no other evidence that he was ill from 24-11-1988 to 15-12-1988. In the application for leave which is produced as Ex. AW/1, which I will discuss later, the reason for leave is shown to be 'urgent work'.
6. With regard to the second contention of the respondent that he had submitted application for leave on 3-12-1988 there appears to he some substance in that contention. The original leave application has been produced by the appellant from his record as Ex. AW/1. It shows it was moved on 3-12-1988 though endorsement on it is dated 2942-1988. Mr. Muhammad Aslam Fayyaz, Deputy Manager of Appellants has stated in para 10 of his affidavit-in-evidence that this application with endorsement 'not recommended' by Mr. Iftikhar Ahmad was received on 29-12-1988. However the enquiry officer, Mr. Mukarram Khan has admitted in the cross-examination that during the enquiry it was proved that the applicant had come inside the factory only for one hour on 3-12-1988 for presenting the leave application. The respondent claimed to have given application to R.W. Sajjad Hussain, a Junior Officer of his Section on 3-12-1988 and because he had some altercation with Sajjad Hussain on 9-1-1988 he had been implicated in these proceedings. Sajjad Hussain was examined before the Enquiry Officer as well as before the learned Labour Court. In both the forums he has denied that the respondent gave him any application or that he had any dispute with the respondent. However, before the Enquiry Officer Sajjad Hussain had admitted, when questioned by the respondent, that respondent had given the application on 3-12-1988. He stated that he had no meeting with the respondent but his application for leave was received through Abdul Qadir, Clerk.
He has further admitted before the Enquiry Officer that the application for leave was received on 3- 12-1988. Abdul Qadir was examined before the Enquiry Officer and when questioned whether the respondent had given leave application on 3-12-1988 he answered that leave application was received through one Sannaullah. This evidence leaves no doubt that the application for leave was moved by the respondent on 3-12-1988 which was received in the office of the appellants on the same day. Further it appears, that endorsement 'not recommended' was made on the application on 29-124988, viz. After the respondent had resumed duty. The question that requires consideration is whether the appellant or the respondent has committed violation of Standing Order 8.
7. Clause (2) of Standing Order 8 is relevant in the instant case which may be re-produced as under:- "(2) A workman who desires to obtain leave of absence shall apply to the employer, who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date of the application or within three days thereof, the order shall be given on the same day. If the leave asked for is granted, a pass shall be issued to the workman. If the leave is refused or postponed, the fact of such postponement or refusal and the reasons therefor shall be recorded in writing in a register to be maintained for the purpose, and if the workman so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman if his address is available, and if such reply is likely to reach him before the expiry of the leave originally granted to him."
The bare reading of the aforesaid provision would show that it was mandatory for the worker to obtain prior leave of absence before proceeding on leave. In the instant case the respondent moved application on 3-12-1988. He could not be considered to have moved application prior to commencement of alleged leave. The respondent admittedly remained absent from 24-11-1988.
This application cannot also be considered to be for extension of leave already granted. Therefore if the appellant did not reply to that application whether purposely or inadvertently he could not he said to have committed any breach of the provision of Standing Order 8.
8. In the case of Pam Jan v. M/s. Alwin Engineering Industries Ltd., Karachi 1981 PLC 595 this Tribunal held 'that the mere fact of the applicant having made some application does not exonerate workman of the charges of remaining absent from duties without leave unless such application was accepted and leave was granted.'
9. I have already pointed that there is no evidence, apart from the word of the respondent, that he was so ill or that he was incapacitated from obtaining prior leave e.g. On 24-11-1988. He made application on 3-12-1988 C himself when he came to the factory but he did not care to find out if it was granted. Under such circumstances his absence from 24-11-1988 to 15-12-1988 cannot but be considered to be absence without permission.
10. The learned Labour Court has come to the conclusion that under the circumstances of the case absence of the respondent for more than ten days cannot be technically termed as absence without intimation. It may be pointed out that under Standing Order 15(3)(e) absence without leave for more than ten days is a misconduct therefore even absence with intimation but without leave would be a misconduct as provided under Standing Order 15(3)(e). This act of misconduct appears to be proved from the admission of the respondent as well as evidence on record. Once the misconduct as described under Standing Order 15(3)(e) is proved the discretion did lie with the employer to award any punishment mentioned in Standing Order 15(2) and dismissal is one of the punishments so provided. The Labour Court and this Tribunal cannot assume the discretionary power of the employer and interfere with his discretion in awarding the punishment.
11. For the aforesaid reason the impugned order of the learned Labour Court ordering reinstatement of the respondent is set aside and the appeal of the appellant bearing No, KAR-275 of 1990 is allowed. Consequently Appeal No, KAR-14 of 1991, filed by the respondent, is dismissed because there would be no question of back benefits when the original order of dismissal of the respondent is restored by this Tribunal.