DECISION This appeal calls in question the order of the Labour Court No. IV, Karachi whereby the petition for reinstatement under section 2_i-A of the I.R.O., 1969, came to be dismissed. The circumstances in which it arose, succinctly stated, are as follows;--
2. The petitioner was employed as a Chowkidar at the West Wharf Establishment of the respondents. On 14-6-1986 he was served with a charge---sheet which was confided to the fact that he had allowed goods of six different Suzuki Pickups to pass out of the Terminal without collecting the gate passes from them. There was a preliminary investigation and there were further disclosures. And as a result thereof a second charge-sheet, inclusive of the earlier allegations, was served on him on 2-7-1986. It reads as under: "As a result of preliminary investigation conducted against you m respect of the charge of misconduct mentioned in our Letter No.WWT ZIA, dated 14-6-1986, following are the acts of misconduct committed by you:-- (1)That on 12-6-1986, during the course of duty on Lube Oil Gate you allowed the goods to pass out of the terminal without collecting the following gate passes:--
(1) 534206 (2) 534207
(3) 534208 (4) 534209
(5) 534210 (6) 534211 (2)It has also revealed that you with deceitful and dishonest intention punched the time card against the date 11-6-1986, showing therein yourself to be on duty from 07-07 hours to 14-55 hours; whereas you were not on duty during the said period thereby practising dishonesty in connection with employer business.
(3)That you with deceitful intention manipulated the punch card by erasing timings punched on June 2,1986.
The aforesaid acts on your part constitute misconduct, you are therefore hereby called upon to show cause within three days of the receipt hereof as to why disciplinary action should not be taken against you, please note that in case-you fail to submit your explanation within the stipulated time, further action will be taken in accordance with law."
The petitioner had submitted his explanation on 8-7-1986 but as the same was not found to be satisfactory Enquiry Notice was issued. The enquiry was conducted by Muhammad Kamil, Tax Service Manager. During the enquiry, a number of witnesses were examined on behalf of the management including SA. Bari, Muhammad daffar Sadiq, Hamidullah and Ziauddin. The petitioner had also produced defence witnesses, namely Rasheed Ahmed, lnam All Khan, Noorul Qamar, Usman Abdullah, Janat Gul, Muhammad Yousaf and Waheed Khan. The Enquiry Officer found him guilty of misconduct in respect of Charge No. 1 but exonerated him from the other two charges. The services of the petitioner came to be terminated on 20-8-1986.
3. The petitioner had sent the grievance notice on 1-9-1986 which was replied to but in view of the judgment of the Supreme Court in Karachi Electric Supply Corporation Limited v. N.I.R.C. And another PLD 19132 SC 125, instead of filing the grievance petition before the Labour Court, he filed a complaint under section 7 of the Pakistan Essential Services (Maintenance) Act, 1952 before an A.C.M., Karachi on 3-11-1986. The same was returned for want of territorial jurisdiction on 18-11-1986.
The petitioner then filed the complaint before the A.C.M. VI, South Karachi, which came to be dismissed on 24-11-1986. A Revision Application was preferred before the Sessions Court on 8-7- 1987 which was allowed and the A.M.C. IX examined the complainant under section 200, Cr.P.C. On 20-1-1991.
4. The view taken in the aforesaid judgment of the Supreme Court was departed from later, in the case of Pakistan Television Corporation Limited v. Babur Zaman and others 1989 SCM R 1549, wherein it was held that employees who fall in the category of workman and are not exempted from the application of Industrial Relations Ordinance can have recourse to the Labour Court. .
5. It is stated by the petitioner that on 3-9-1990 he had visited the respondent establishment, where he learnt that the employees of the respondent Organization could now seek the redress of their grievances from the Labour Court. He had, there uopn, immediately contacted his counsel and filed tire petition before the Labour Court on 12-9-1990.
6. The petition was resisted inter alia on the ground that the petitioner was not a workman, the petition was time-barred and he was no more an aggrieved person as after the dismissal order he had collected his dues. Otherwise too the order of dismissal was eminently proper.
7. The. Petitioner, apart from himself, examined Abdul Matin and Muhammad Hamidullah, Assistant Aviation Superintendent, appeared on behalf of the respondents.
8. The Labour Court, for the reasons given by it, dismissed the petition resulting in this appeal.
9. The dismissal being in the year 1986 and the petition having been filed on 12-9-1990 the question which stares in the face is whether the same will be within time?
10. It is to be seen that the appellant in spite of serving the grievance notice had filed a complaint before the specified Authority, that is the Magistrate, in accordance with the judgment of the Supreme Court referred to earlier. Indisputably it was the proper forum then. He had pursued the matter with diligence Prom one Court to another on the criminal side for well-nigh four years before he ultimately presented the petition before the Labour Court. Mr. Muhammad Humayun, learned counsel for the respondents, stated at the bar that this judgment came to be reported in September, 1989 while the petition was filed on 12-9-1990. The delay was considerable and sufficient cause has not been shown to condone the delay.
11. The appellant, after his dismissal from service, had admittedly served the respondents with a grievance notice. It is nobody's case that it was beyond time. But instead of filing the petition before the Labour Court he had sought the redress of his grievances from the Magisterial Court. It has not been urged, nor could be so urged, that he had chosen a wrong forum. He had thereafter shown diligence and considerable tenacity in prosecuting the proceedings in the face of repealed upsets.
The Sessions Court had ultimately found, that the complaint under section 7 of the Essential Services (Maintenance) Act was unexceptionable. The matter was still pending, when he learnt in September, 1990 that in view of the recent judgment of the Supreme Court his remedy new lay with the Labour Court. Without losing any time he had gone to his lawyer and soon filed the petition.
12. The respondents themselves have filed the Diary Sheet of the case before the A.C.M., Karachi. It had come up for hearing even in the month of December, 1990 and January, 1991. There is nothing to show that he had the knowledge of the change of law earlier than what has been deposed by him. The judgment had come in 1989.
13. Mr. Humayun, learned counsel for the respondent, urged that the said decision had been reported in the September issue of the SCMR and the petition before the Labour Court took almost a year to be filed.
14. To my mind, the question to consider would be not the span of one year's time but whether the appellant had the knowledge of the change in law, earlier than what is stated by him. It was held in the case of Ghulam Ali v. Akbar alias Akoor PLD 1981 Se 957 that "only that delay is condonable which had occurred in spite of the fact that the plaintiff had prosecuted his case with due diligence---------------.So the question will arise whether in exercise of due diligence mistake was discoverable or not. In other words if mistake is such that it is expected to discover in exercise of due diligence then it would not be condoned but if it was do account of some such circumstances that in the exercise on due diligence the mistake could not be discovered only then it would be condonable".
15. In the circumstances I have no hesitation in holding that it is a fit case for the condonation of delay. '
16. It was next contended that after dismissal, the appellant had applied for the payment of dues payable to him, and those two applications and the receipts arc on the record. It is, however, noticeable that the appellant had taken care to mention in both the applications that the request for withdrawal was without prejudice to his rights. Even if he had not taken care to say that much, there is enough case-law on the subject that mere withdrawal of the dues, without there being anything more to it, will not debar an employee, whose services 'have been terminated, from seeking his remedies. Reference may be made to the case of General Manager, National Radio Telecommunication v. M. Aslam and others 1992 SCM R 2169.
17. All that remains to see now is whether the dismissal, under the circumstances of the case, can pass muster. There is no challenge to the fairness or the propriety of the enquiry proceedings. The appellant had participated therein and also examined witnesses. He was arraigned to face three charges. He was absolved of two of them as referred to earlier and found guilty of only Charge No. 1.
18. The stand of the appellant was that his duties had been over-stretched spreading to a number of days, and because of exhaustion and fatigue, he had started vomiting. And breaking the news to one Havaldar, whom he had named he had gone to the hospital for medicine. All this has been denied by the respondents. I agree that the appellant was overstating his duty hours. I also agree that normally an employee cannot desert his duties without proper leave, and the appellant was entrusted with a very responsible charge.
19. However, it is not the case of any one that any losses had come to the respondents or any unauthorised person had snaked inside the campus. Even the Drivers of the six Suzuki Pickups had left the gate-passes under stone pebbles. All the same it cannot be said that because of these redeeming circumstances the appellant was beyond blame.
20. The short question, however, to be considered will be whether his temporary absence during duty hours without proper permission would constitute misconduct within the meaning of Standing Order 15(3) of the Standing Orders Ordinance.-
21. "Misconduct" has been defined under Standing Order 15(3) and to my mind only the latter part of sub-clause (i) which deals with "habitual negligence and neglect of work" would be attracted. But the word "habitual" qualifies the neglect of work also. The two parts are not used in disjunctive sense. It was so observed in the case of Saifee Development Corporation Ltd. v. Workers' Union 1969 PLC 413. It is true that the list of misconduct as to be found in Standing Order 15 is not exhaustive but a case of an employee leaving his place of duty for a while which may extend to a few hours even, without any mens rea coupled with the fact that no harm had come to the employer could be dealt' with in some other suitable way. A `warning' or some minor punishment would have put the other employees on notice that such liberties could not be taken with impunity. Anyway it was open to them to deal with him, as they liked but in accordance with law.
22. The only question remains about the back benefits and he will be entitled to full back benefits as he had clearly stated before the Labour Court that he had been rendered jobless as a result of his dismissal from the service. That was not challenged. (See Muhammad Bashir v. Punjab Labour Appellate Tribunal and others (1991 SCM R 2087).''
23. I will, therefore, set aside the impugned order and allow the appeal. The respondent would reinstate the appellant in service within one month, with full back benefit