DECISION ' This appeal arises from an order of the Fifth Sindh Labour Court, Karachi, whereby the petition of the respondent against his dismissal from service by Hotel Marriott was allowed and he was ordered to be re-instated in service but without any back benefits.
2. The facts of this case which are more or less admitted are that the respondent was working in the Hotel Marriott as a Utility worker. On 20-10-1992 the respondent applied for Earned leave for four months but the appellant Hotel granted leave from 1-11-1992 to 21-12-1992 as there was no further earned leave at his credit. On 17-12-1992, five days before the expiry of the leave a telegram was received by the Hotel Management that he was working with Tableeghi Jamat and his leave may be extended up to 25-3-1993. The Management replied by telegram dated 20-12-1992 that he had no entitlement to further leave and he should rejoin forthwith otherwise strict disciplinary action would be taken against him. Thereafter, another telegram was received on 20-12-1992 one day before the expiry of leave. The Hotel Management waited up to 2-1-1993 and then sent a charge- sheet to the respondent by registered post for commission of misconduct for remaining absent for more than ten days without leave. This charge-sheet was sent on the address available on the record of his file. Thereafter, a notice for holding of enquiry against him was despatched on the address supplied by the respondent and this notice was duly acknowledged but the respondent failed to appear before the Enquiry Officer the date was, therefore, extended to 13-2-1993 and 23-2- 1993 and ultimately since there was no response. The enquiry was held ex parte against the respondent and he was dismissed from service on 7-3-1993. This dismissal order was sent by registered post and the same was acknowledged by the respondent. The respondent then sent his grievance notice and filed his grievance petition under section 25-A of the I.R.O. Against Hotel Management before the Sindh Labour Court No, 5 at Karachi. The Court found that the respondent could not participate in the enquiry proceedings as he was away at Raiwind. Consequently his termination from service was not justified and he was accordingly ordered to be re-instated in service, but it was also said that the respondent was to be blamed for all that had happened and he was, therefore, not entitled to any back benefits.
3. Mr. Ashraf Hussain Rizvi for the respondent has argued that the respondent should have been duly served for holding of the enquiry and he should also have been allowed back benefits because he was out of job. The appeal of the respondent regarding back benefits has already been dismissed in limine and now the only question remains whether the appeal of Hotel Marriott against re-instatement has any force.
4. Under section 8 of the Standing Orders Ordinance the Workers Leave Rules are enumerated. The Rule relating to an extension of leave reads as under:-- "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 worknian if his address is available, and if such reply is likely to reach him before the expiry of leave originally granted to him."
5. In the present case the reply of the management to the application for extension was despatched within three days of the receipt of the application on 20-12-1992. In these days even the telegrams do not reach in time and it cannot be said that it could reach the worker by 21st December the day of expiry of the leave. Even if full address had been provided by the worker the- management is required to reply only on the available address and it is not a condition precedent for rejection of leave that the order should reach the worker before the expiry. It was for the worker to pursue the result of his leave extension application by telephone, teleprinter or any other means available in these times but this was not done. Even within ten days after expiry the worker did not choose to find out what became of his application. It is not for the Hotel Management to run after the worker to tell him that his leave could not be granted. Thereafter, although the charge-sheet sent on the available address is not said to have reached the addressee, the notice of domestic enquiry had admittedly come to the knowledge of the worker.
6. The learned Advocate for the respondent says that notice was sent on his address while he was at Riawind but it was not sent to his Karachi original village Langewa, Tehsil Alipur, District Muzaffarghar. The respondent in his cross-examination on his affidavit has admitted that he had nominated his cousin Fida Hussain as his nominee. That the notice of enquiry sent through registered post was received by his cousin Fida Hussain but his cousin Fida Hussain did not inform him. The respondent has admitted that the correspondence in this connection was received by his cousin on his behalf but he did not disclose it to him. If the respondent was not in Karachi and the notices were served on his cousin who was his nominee, it is presumed that it had come to the knowledge of the respondent that an enquiry was pending.
7. The main question for consideration is that the respondent had overstayed his leave knowingly. It was within his knowledge that no further leave could be granted to him as the same had been refused even before he proceeded to his native place at Punjab. Since these broad facts of the case are admitted, as further proof in respect of them is required. Enquiry was a mere formality. It is, therefore, clear that the respondent had deliberately overstayed his leave and since he was illiterate according to his own admission, it could not be for the purpose of Tableegh regarding Islam. He did not even know the Alif Bay and it is hard to believe that he would be interested in the study of philosophy of religion. Since the entire blame lay on the respondent and he absented himself for about three months from his duties in spite of the fact that leave had not been granted to him, there is no reason why he should be reinstated after his dismissal due to desertion. The appeal of the Hotel Management is, therefore, allowed and the judgment of the lower Court for reinstatement is set aside.