1. AWARD Shaffi Muhammad R. Akhund (Chairman).--In this application, under section 34 of the Industrial Relations Ordinance, 1969, the applicant seeks re-instatement in service with full back benefits, or in the alternative payment of his legal dues. The case of the applicant is that he was the permanent worker of the respondents, employed since 5th September 1970 at a salary of Rs. 80 per month. He had to work mostly for l2 hours, instead of 9 hours, without any overtime allowance or extra payment. The respondents were displeased with him whenever he demanded payment of overtime etc. On 17th August 1971, he requested for leave as he was ill. He was not only refused leave but when he reported for duty on the next day, the respondents turned him out and told that another person was appointed in his place. The respondents neither gave him any charge-sheet nor any order of termination. They have also not paid him his earned wages and other legal dues.
2. Hence, he moved this application on 19th October 1971. The respondents, in their reply statement, admit that the applicant was employed since 5th September, 1970. But, according to them, he was appointed on temporary basis. They state that he was in the habit of being absent without leave and, in spite of repeated warnings, he absented from duty on 16th June 1971, leaving the property of the respondents unattended. Therefore, his services were terminated, since he was temporary hand according to the terms of his appointment. The respondents further state that the applicant is not entitled to any dues, except bis earned wages for the days he had worked in the month of June 1971, which he has not cared to collect. During the proceedings, the applicant examined himself and was cross- examined by the respondents' counsel. The respondents' witness, Mrs. Zakia Khatoon, the Head Mistress of the Academy, filed her affidavit. But when the matter came up for her cross-examination on 16th May, 1972, she as well as her counsel were absent. Consequently, the side of the respondents was closed. Thereafter, the case was adjourned on several dates of hearing, from 16th May 1972 to 2nd October, 1972, at the request of the applicant's Representative for filing written arguments. But during this period of nearly 5 months, none ever appeared for the respondents or made any application for re-opening their side. Therefore, the respondent's witness not having been cross-examined, her affidavit cannot be taken into consideration. Thus, there is no evidence in rebuttal of the testimony of the applicant or in support of the respondent's contentions.
3. The respondents contend that the applicant was in the habit of remaining absent without leave.
4. But, in his cross-examination, no such question has been put to him, nor has anything been brought on record to show he was a habitual absentee. The only date on which he is alleged to have remained absent is 16th October 1970. But, even on that date he is alleged to have remained absent from 1 p.m. 6-00 p.m., as appears from his explanation Exh. R-3. He was confronted with two more explanations Exh. R-l and Exh. R-2. But, the former is with respect to his sitting on a chair and the other is for distributing certain pamphlets among the students which he claimed were given to him by the Gardener for distribution. From the reply statement of the respondents, it appears that the services of the applicant were terminated because he remained absent without leave on 16th June 1971. But neither any question to this effect was put to the applicant, nor was he confronted with any charge-sheet or explanation for the alleged absence on that date. Therefore, there appears no truth in this plea of the respondents. The respondents appear to have placed much reliance on the terms of the appointment of the applicant Exh. R-4. This document shows that the applicant was appointed as Chowkidar on temporary basis, and his services could be terminated on 15 days' notice on either side, but, in case of misconduct or serious complaints, his services could be dispensed with without notice. But, the terms of contract cannot override the provisions of Law. Standing Order 1 (b) clearly lays down that a workman, who has completed probationary period of three months and is engaged in a work of permanent nature, will be deemed to be a permanent workman. In the present case, admittedly, the post in which the applicant was employed is of a permanent nature, and the applicant had worked for more than 3 months under the provisions of Standing Order l2, the services of a permanent workman cannot be terminated without one month's notice in writing, or wages in lieu thereof, besides other dues payable on termination. But, in the case of misconduct such as habitual absence as alleged by the respondents, the services of a permanent or temporary worker cannot be terminated except in the manner prescribed in Standing Order 15. But, this is neither the case of termination of services nor of the dismissal of the applicant. The resdondents have neither given him any order of termination with one month's notice or pay in lieu thereof, nor they have served any charge-sheet on him or given him any opportunity to explain the alleged misconduct. Therefore, the respondents have clearly acted in contravention of law and rules of natural justice. A question may arise that the applicant has not brought his grievance to the notice of the respondents before coming to the Court, as required by Standing Order 18. This plea, however, had neither been taken in the Reply Statement of the respondent nor was the applicant questioned on this point. It appears that the learned counsel for the respondents was not aware of the provisions of Standing Order 18. But, the words of Standing Order 18 show that observance of grievance procedure is contemplated only in case employer has purported to act under some provisions of the Standing Orders Ordinance, 1968. The opening sentence of Standing Order 18 is "Any individual workman who has a grievance in respect of any matter uader this Ordinance pnd intends to seek redress thereof, shall observe the following procedure. The words, "in respect of any matter under this Ordinance**, indicate that the grievance procedure is to oe followed when the employer has either dismissed the employee under Standing Order 15, or terminated his services under Standing Order l2, or taken action under any other provision of the Ordi- b nance. But in the present case, the respondents do not claim to have either terminated the services under Standing Order l2 or dismissed him under Standing Order 15. They have simply refused to allow him to perform duty because, according to them, he was a temporary hand. Therefore, 1 find that in such a case observance of grievance procedure was not necessary. Therefore, for the reasons stated above the application is allowed. The applicant shall be re-instated in service with full back benefits.