DECISION ' This is an appeal against the order, dated 25-5-1990, passed by learned Presiding Officer, Sindh Labour Court No,I at Karachi, whereby the grievance application of the appellant was dismissed.
2. I have heard Mr. Muhammad Shafiq Qureshi, learned Advocate for the appellant and Mr. Sharif Ahmed Malik, learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the appellant was admittedly employee of the respondents.
He is alleged to have unauthorisedly absented himself from duty for more than ten days for which he was charge-sheeted on 25-7-1987. The appellant claims to have sent leave application through his father Sahib Shah. However, in the domestic enquiry he was found guilty and was dismissed from service vide order, dated 26-8-1987. After serving grievance notice upon the respondent he filed grievane petition before the learned Labour Court on 4-10-1987. The grievance petition was dismissed by the learned Presiding Officer, Sindh Labour Court vide order, dated 2-11-1988 but in appeal this Tribunal, vide order, dated 2-4-1990, set aside the order and directed the Labour Court to decide the case afresh after examining the Enquiry Officer and after again hearing the parties.
The learned Labour Court after examining the Enquiry Officer and after hearing the parties again dismissed the grievance petition vide impugned order.
4. The facts of the case are not disputed. Admittedly the appellant did not have his leave sanctioned before leaving the respondent's establishment as according to him the practice in the mill was that the workers used to give application and then proceed on leave. He states to have sent his leave application through his father Sahib Shah on 9-7-1987. One application, dated 9-7- 1987 has been produced by the respondents as Annexure 'A' to their Written Statement which allegedly bears signature of the appellant, in which he had prayed for leave for one day viz 9-7- 1987 on the ground of ill-health. In his examination-in-chief appellant has denied that Annexure 'A' was his application or it was written or signed by him. He stated to have sent application for one month's leave on 9-7-1987. His father, who is alleged to have taken his application to the management states that he had given the application on 9-7-1987, to the management, after the appellant had left for his village. He has admitted in the cross-examination that he had no proof of submission of application or that it was granted. Nothing has come on record to show that any other application for one month's leave was moved by the appellant except his own oral word and that of his father Sahib Shah. Even if it is accepted for the sake of arguments, that he had moved such application, admittedly, he had left the establishment of the respondent before it was granted.
5. Standing Order 8 deals with the Casual Leave. Clause (2) of Standing Order 8 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 may be reproduced 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 ordinarily granted to him."
A bare reading of this clause would show that the workman has to apply in advance for leave and to obtain a pass showing the grant of the leave. Mere making an application cannot be considered to imply that the leave had been granted as held by this Tribunal in the case of Umer Rahim v. Al- Azam Limited - Appeal No, KAR-121 of 1983, decided on 19-5-1985. It was further held therein that 'the fact that the workman did not receive any intimation, it shall be deemed that the leave was rejected'.
6. In the case of Muhammad Yousuf Mirza v. Karachi Shipyard and Engineering Works Ltd. 1980 PLC 1041 this Tribunal had held that 'mere application for leave warrants no inference that the leave should be granted and does not authorise workers to abstain from work'.
7. In the instant case the initial burden was upon the appellant to prove that he had moved an application for, leave for one month from 9-7-1987 to 10-8-1987 and that it was granted. As pointed above apart from the oral word of witnesses there is no other evidence. It was contended by Mr. Muhammad Shafiq Qureshi that the respondents had withheld that application and instead submitted forged application to show that he had applied only for one day leave. Burden of proof for forgery is always upon the party who alleges such forgery. The appellant did not request the Court to send Annexure 'A' to 'Handwriting Expert' to ascertain whether it did or did not bear his signature. Furthermore, as pointed above even if the appellant had moved the application the fact remains admitted, that he left place of duty and abstained from work without having it sanctioned which is violative of Standing Order 8.
8. It is contended by Mr. Shafiq Ahmed Qureshi that the appellant had to leave immediately because of some important matter at his village as he had received such letter. His father Sahib Shah stated that this letter was addressed to him and not to the appellant. This letter was neither produced before the Enquiry Officer nor before learned Labour Court to show the urgency, which compelled the appellant to leave place of work immediately without obtaining prior sanction.
9. It is next contended by Mr. Shafiq Qureshi that enquiry was not held in a fair and impartial manner as the appellant was not given chance to cross-examine witnesses or to produce his defence witnesses. The management had examined only two witnesses namely Ghulam Muhammad, Attendance Clerk and Muhammad Razi, Band-Saw Operator, who both had stated that respondent remained absent from 11-7-1987. The enquiry papers show that the appellant was given chance to cross-examine, but he only made statement, that he did not agree with their statement and that he had sent application for one month's leave. The enquiry papers are also signed by the appellant. The appellant has also examined himself before the Enquiry Officer and produced defence witness Muhibullah. The Enquiry Officer appears to have put a question to the appellant to produce registered letter which he had received from his village, but he stated that he could produce the letter but he did not have it. The mere fact that the Enquiry Officer put a relevant question to the appellant would not vitiate the enquiry as such question was necessary under the circumstances of the case. The contention of the appellant that he was not allowed by the Enquiry Officer to examine his father Sahib Shah is belied by the evidence of Sahib Shah himself who stated, that he did not appear before the Enquiry Officer. Even the appellant himself has admitted that he did produce Sahib Shah as witness before Enquiry Officer. He admittedly did not make any complaint in writing to the Enquiry Officer or management with regard to his alleged impartiality.
The Enquiry Officer Shafiq Ahmed was examined by the learned Labour Court after the case was remanded. Nothing has come in his cross-examination to show, that he acted in prejudicial manner and did not give opportunity to appellant to cross-examine the witnesses of the management or to produce his defence witnesses. As pointed above the enquiry proceedings bear signature of the appellant and there is nothing on record to show that he ever raised any objection with regard to the conduct and procedure of the enquiry before the order of his dismissal was passed. This belated objection, which is unsubstantiated from the record, would not render enquiry illegal or invalid.
10. The learned Labour Court has examined the evidence in detail and has written well-reasoned judgment. The factum that the appellant remained absent from 11-7-1987 to 25-7-1987 when charge was framed is admitted. Apart from Annexure 'A' which is application for leave for one day, no other application has been produced on the record to show, that the appellant applied for one month's leave. Admittedly he left the station without waiting for leave to be sanctioned. Admittedly there is no proof that leave was sanctioned for one month. Under the circumstances and in view of the decisions referred to above, this act of remaining absent would amount to misconduct punishable under the Standing Order 15(3) for which any of punishments provided in clause (2) of Standing Order 15, could be awarded, which includes dismissal.
11. The contention of the appellant that he has been victimised because of trade union activities of his father, who was President of the Union is also not substantiated from record. There is nothing on record to show that trade union activities the appellant indulged into, for which he was victimised.
The party which alleges mala fides has strictly to prove mala fides and it cannot be presumed.
Reliance in this respect is placed on 1986 SCM R 582 wherein their Lordships have held that mala fides has to be specifically pleaded and legal proof adduced to establish it as no finding of mala fides can be recorded merely on the basis of surmises, assumptions, assertions and mere allegations'.
12. In view of the above discussions I find no merits in this appeal which is, accordingly, dismissed.