This is an application under section 6 of the Essential Services (Mainte--nance) Act, filed by one Fazal Dad Khan (the petitioner) an employee of the Attock Electric Supply Company Limited (the respondent) which has been declared under section 3 of the said Act to be an employment to which the said Act applies.
2. The admitted facts are that the petitioner was employed as a Cashier with the respondent company. On 23-5-1973, he was involved in a murder case and was sent to judicial lock-up as an under trial prisoner. Shortly thereafter, the petitioner applied for six months leave from jail but was refused by the respondent's Resident Engineer and the petitioner was directed to resu--me duty within ten days, failing which he was warned that his services would be terminated. As the petitioner could not resume his duties as directed, his services were finally terminated with effect from 21-6-1973 by a letter (Annexure 'H' to the respondent's reply). The petitioner was released on bail on 21-10-1974, whereafter he filed the instant petition on 24-11-1975.
3. The contention of the petitioner is that the action taken against him is not warranted by law as absence for more than ten days without leave constitutes misconduct under Standing Orders Ordinance for which there should be a proper enquiry after a show-cause notice. The petitioner has therefore prayed for reinstatement in service with all the consequential benefits. The respondent on the other hand has taken up a plea that the action taken against the petitioner was not for misconduct committed by him but it was a case of termination simpliciter. It has been further contended on behalf of the respondent that since the petitioner was in jail for an indefinite period the respondent was not bound to wait for him and hence the action taken against the petitioner was neither unreasonable nor illegal.
4. The letter dated 25-6-1973, (Annexure 'H' to the respondent's reply) whereby the services of the petitioner were terminated by the respondent shows that his services were terminated for the reason that he did not resume his duties within the given time which clearly shows that-his services were not terminated on account of any misconduct. I therefore accept the respondent's plea that it was a case of simple termination of services as provided for in Standing Order 12. As far as the question of its reasonableness or unreason--ableness is concerned, I agree with the contention raised by the respondent that he was not bound to wait for the petitioner's release from jail particularly when it could not definitely be said as to when the petitioner would be released from custody. The next question which now arise is that whether the respondent was bound to reinstate the petitioner after his return from jail. According to me the respondent was not bound to reinstate him after his release from custody as he had neither given such undertaking to the petitioner nor he was bound under any law to follow such a course.
5. Under these circumstances, the petition is dismissed. The petitioner may however be paid one month's wages in lieu of the notice as contemplated by Standing Order 12 (1) of the Standing Orders Ordinance.
6. Since the case has been dismissed on merits, it will be futile to go into the preliminary objections raised by the respondent.