DECISION ' This is an appeal against the order dated 30-5-1990 passed by the learned Presiding Officer, Sindh Labour Court No, 1, Karachi whereby respondent was ordered to be reinstated in service without back benefits.
2. Heard Mr. Muhammad Tasneem for the appellant and Mr. M. Latif Saghar for the respondent. I have also gone through the Record and Proceedings of the case.
3. Admitted facts of the case appear to be that the respondent was a workman employed by the appellant who remained absent without obtaining prior permission from 26-5-1982 till he reported for duty on 26-5-1988.
4. According to the appellant they had issued a charge-sheet against the respondent which they sent him by registered post. They held impartial enquiry against respondent, in which he did not participate. On the basis of the report of the Enquiry Officer, services of the respondent were terminated from 27-5-1982 by an order dated 7-6-1983. The respondent, however, denies to have received the charge-sheet or the dismissal order and therefore he reported for duty on 26-5-1988 explaining his absence on medical grounds and produced Medical Certificates alongwith application for reinstatement. Admittedly an undertaking was taken from him in which he undertook not to claim back benefits if reinstated. His request for reinstatement was rejected by order dated 12- 11-1988. He therefore served a grievance notice upon the appellant on 10-12-1988. Failing to get any relief the respondent filed grievance petition on 15-2-1989, which was resisted by the appellant on the grounds that it was barred by limitation and secondly that the respondent had rightly been dismissed after due enquiry.
5. The appellant have produced the copies of charge-sheets and order of dismissal. The appellants allege to have sent the same to the respondent by registered A/D but no postal receipts or A/D receipts have been produced. The respondent in the cross-examination has denied the receipt of these documents by registered post. The only witness examined by the appellant is Zaheerul Hassan, Manager Mill (Administration), who has admitted in his cross-examination, that he did not know, if any letter or notice even the dismissal order was served or was not served on applicant, till he submitted' joining report Annexure-E to the application. The appellant had not examined the person who signed the Reply Statement, therefore, that Reply Statement A could not be taken into consideration as evidence in view of the law laid down by their Lordships of Supreme Court of Pakistan in the case reported in 1972 Supreme Court page 25. The appellants have not examined the Enquiry Officer nor they have produced enquiry papers.
6. Mr. Muhammad Tasneem contends that after a lapse of 5 or 6 years the postal A/D receipt or the papers could not have been traced out by the appellant but again there is no evidence to that effect that the above documents were not traceable. However, I find that there is no mention either in the reply statement or in the Affidavit-in-Evidence of the witness of the appellant, that notice of enquiry was sent by registered post to the respondent. Even this question was not suggested in the cross-examination of the respondent. The copy of the notice has also not been produced therefore any enquiry held without notice would be illegal and order passed on the basis of such enquiry would not be tenable.
7. Mr. Muhammad Tasneem further contends, that whether legally or illegally the order of termination was passed on 7-6-1983, therefore, period of limitation would run from that date. I have already pointed out that there is no evidence to show that this letter of termination was served upon the respondent. In the case of Dawood Hosiery Mills, Karachi v. Hazrat' Muhammad Yousuf and others PLD 1975 Kar. 312 the Sindh High Court has held that it was not enough that order of termination should be passed, but it had to be communicated to the worker, because otherwise he would not be able to seek relief under section 25-A of I.R.O. Which right is vested in the workman even under Standing Order 12(3).
8. It appears that for the first time the respondent became aware of the termination order on 26-5-1988, when he moved application for reinstatement. The undertaking that he executed vide Annexure A to the grievance petition mentions, that because appellants were not entertaining application of terminated persons on the plea that they claim all benefits for the period, they did not remain on duty, therefore respondent gave undertaking that he would not claim back benefits. This undertaking would show that on that date he had the knowledge that his services were terminated. Admittedly his application for reinstatement was entertained and therefore this undertaking was taken from him. This application for reinstatement is in fact an appeal or representation, which was decided on 12-11-1988. Therefore, 12-11-1988 would be the date from which the period of limitation would have to be reckoned. From this date of cause of action, the grievance notice on 10-12-1988 and grievance petition on 15-2-1989 would be within time.
9. Mr. Muhammad Tasneem contends that the misconduct on the part of respondent for remaining absent for such long period was apparent from his own admissions which could not be explained by mere production of medical certificates. He has relied upon decision of Division Bench of the Sindh High Court in case of Ahmed Nabi v. Sindh Labour Appellate Tribunal and others, 1986 PLC 42 wherein it was held that production of unproved medical certificate was not sufficient to excuse absence of the workman. Even if it is held that the respondent has not been able to satisfactorily explain his absences, till he could not be removed from service without a proper and legal enquiry as envisaged under Standing Order 15(4).
10. I have already pointed out that there is no evidence on record to show that the alleged enquiry was held with notice to the respondent, therefore the termination order passed on the basis of such enquiry is not tenable.
11. In view of the above discussions I find no merit in this appeal which is accordingly dismissed.
12. Respondent has also filed cross-objection against the order of learned Labour Court withholding the back benefits. I find that there is no illegality in the order passed by the learned Labour Court withholding the back benefits of the respondent, because admittedly the respondent did not work with the appellant during the period in question and further he himself willingly gave undertaking disclaiming the back benefits. The cross-objections, therefore, are also dismissed.
Appeal and cross-objections dismissed.