' Malik Pervez Ahmad, Presiding Officer, Punjab Labour Court No,2, Lahore on 17-5-1999, rendered a decision accepting Muhammad Babar's grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969. The respondent here has come up in appeal to this forum.
2. Muhammad Babar was an employee of the Treet Corporation. A criminal case under section 380/411/457, P.P.C. Was registered against him and others at Police Station, Green Town, Lahore, on 31-12-1996. He stopped coming to his place of duty, with effect from 1-1-1997. A show-cause notice was issued on 12-1-1997, calling upon him to explain his absence from duty, without leave, over a period exceeding ten days, tantamounting to misconduct. For the first time, on 20-1-1997, he addressed an application to the Factory Manager, taking up the plea that as he had remained associated with the investigation of the criminal case being conducted by the C.I.A. Qila Gujjar Singh (Lahore), he had not been able to attend to his duty and would be able to do so when the investigation exercise was over. His reply to the show-cause notice was considered as unsatisfactory and an enquiry was initiated against him. Enquiry notice was issued and Mr. Yousaf Hussain Dilawri, Advocate was requested to act as the Enquiry Officer, He submitted his report on 25-2-1997. A perusal of the same reveals that he had visited the premises on 17-2-1997, when the Personnel Officer, Mr. Muhammad Azam was present as a representative of the management, while Muhammad Babar was absent, despite intimation made to him in that behalf by registered post, as was the stand-point of the factory's representative. Enquiry was adjourned to 23-2-1997, and the representative was directed to make sure that the employee was made aware of the next date. On 23-2-1997, Muhammad Babar did appear. He however, gave a lie to the allegation of his absence, maintaining that he was under investigation in a theft case, which incidence had prevented him from coming to the factory and attending to his duty. In the proceedings of the enquiry, the Time Keeper, Mr. Imtiaz Ahmad placed before the Enquiry Officer the attendance register, which showed that Muhammad Babar had been absent without permission or leave from 1-1-1997 onwards. Babar made his own statement in the enquiry proceedings and did not examine any other witness in defence. He maintained that so long as he was not 'cleared' from the allegation of theft of blades, he could not attend to his duty, nor was the management actually allowing him to do so. Final report of the enquiry was submitted against him on 25-2-1997.
3. A perusal of the grievance petition dated 13-5-1997 as also the reply submitted by Muhammad Babar, with regard to the grounds embodied in the memo. Of appeal, lodged in this Court, the plea taken up by Muhammad Babar was that he had been involved in a false case of theft and had been arrested by the local police and that after his release on bail, he had reported for duty, but he had not been allowed to enter the premises, According to him, the allegation of his absence from duty had no basis and he had been ousted from service in a mala fide manner, without holding a regular enquiry. The Investigating Agency had found the charge to be baseless and his absence from duty was not wilful or intentional, but was owing to his unlawful arrest. He had been condemned unheard and without personal hearing, by the Enquiry Officer, whose report had unjustifiably been trusted and acted upon by the management, in removing him from service, on 12-3-1997.
4. In his reply submitted in this Court, it has been averred that he had addressed an application for leave to the management, but copy thereof was not available with him. In the reply dated 9-7- 1999, tendered before this forum, as also in his statement made on 23-2-1997 before the Enquiry Officer, he had clearly conceded that his arrest in the theft case had never been effected. The 'progress report' dated 16-2-1997, drawn up by an A.S.I. (Annexure 'B'), as available on the file of the appeal) reveals that for the purpose of interrogation, all the accused persons, including Muhammad Babar, had remained associated with the investigation for a few hours only, and they had then been 'discharged', on having been found innocent. As such, there was no genuine cause for the employee to have remained absent from duty over that long period. It will not be denied that absence from duty, without valid justification or lawful excuse, without permission of the superior, and without leave applied for had been granted, amounts to an act of misconduct, and it is open to the employer to remove the delinquent from service. There is nothing on record to suggest that Muhammad Babar had whimsically or maliciously been proceeded against and victimized for his trade union activities. He was not a member of any trade union, operating in the set-up. The Enquiry Officer does not appear to have in any way conducted himself partially, and obvious of well-known principles of equity, justice and fairplay. Actually he did not proceed against the accused in the undue or indecent haste even. Although the establishment's representative made the E.O. Aware of the fact that notices had been despatched to the worker for 12-2-1997 and 18-2-1997 (Exhs.P.3 and 4 of the enquiry file), and Muhammad Babar had still not made appearance, the Enquiry Officer asked the representative to make another effort to effect service upon the employee, who appeared in person on 23-2-1997, and offered his explanation. On the same day, he also made a statement before the Enquiry Officer. Being an Advocate, it appears that, Mr. Yousaf Hussain Dilawari was conscious of his obligations and had proceeded with the matter in a regular and lawful =men The only excuse put forth by the employee for not attending to his duty was his involvement in the theft case, a fabricated or false case, according to him. Having not practically been arrested in the said case, there was no bar in his way to continue coming to the factory and perform his duty. The assertion was examined or probed into by the Enquiry Officer with a modest and realistic approach.
5. The Presiding Officer of the Labour Court, however, in keeping with his ustial style, superficially and indiscreetly, jumped to the contrary conclusion, remarking, in a way. "On hearing the learned counsel for the parties the fact that had emerged was that hindrance in the way of the worker's performance of duty was registration of the criminal case and his (continued) association with the investigation, and there was cogent justification for his absence from duty". On making this observation, without discussing the facts of the case, the evidence on record, and the legal contentions involved, the learned Judge hastened to arrive at the decision, in the next breath, by ordering rescission of the termination order and acceptance of the grievance petition, in the manner of reinstatement of the employee in service, with all the hack benefits. I do not think that the learned Presiding Officer had earnestly and assiduously, judicially and judiciously, applied his mind to the facts of the case. The impugned order is found to be lacunic and not well-reasoned, and as such not sustainable in law. It is hereby set aside. The appeal is allowed, with of course no order as to costs.
6. Keeping, however, in view the hard fact that the police agency had exonerated the employee of the charge of theft, and except for his absence from duty over a long time, he had not been arraigned for any other kind of misconduct or serious lapse on his part, justifying or warranting his removal from service, I would convert the order of the employee's dismissal from service into one of the termination of his services. A vital factor prompting me to endorse the event of Babar's ouster from service of the Treet Corporation is that in the course of arguments, and on different dates of hearing, to which the matter was adjourned for possible patch up between the parties, Babar had minced no words in making it known to the Court that he was verily fed up with the proprietorship and the management, who had failed to appreciate his devotion for the cause of the concern and value his honest and hard work, and instead of rewarding him for his dedication had landed him in acute and eternal agony. He has expressly been uttering in open Court that he would not relish remaining any more on the rolls of the establishment, for the simple reason that they would never compromise with him and would in all likelihood adopt a pronounced posture of hostility and vengeance against him, bringing in wake ever accentuating miseries and all the more serious episodes, by reason of even fabrication of false cases against him, as has been done in the past.
Probably, for the same reason, or against similar background and bent of mind, he had absented himself from duty over a long time. Keeping in mind the disdain he had developed for the job and his aversion against continuance with the concern, I have, unlike the learned Presiding Officer of the Labour Court, not indeed opted to endeavour for accommodation of the employee, out of the way and in an indulgent manner, with a view to mitigate gravity of the lapses on his part, justifying his retention in service. But he ought not, at the same time, be deprived of the monetary benefits, which under the law and prevalent practice he has the entitlement to receive.
7. The learned lower Court had rendered decision in favour of the employee on as back as 17-5- 1999, and the establishment had preferred the present appeal on 31-5-1999. While admitting the appeal to regular hearing, this Tribunal has suspended operation of the impugned decision, subject, of course, to all just and legal exceptions, which meant that on expiry of 20 days, following the Labour Court's favourable order (dated 17-5-1999), the employee had essentially to be put back in service. He had even submitted a contempt petition, for securing his reinstatement in service, and initiation of penal proceedings against the Officer concerned. The same has remained unreplied so far. With effect from 7-6-1999, the employee would be deemed to have been in service, in the same capacity, and with the same emoluments. The dues, as accruable till today, shall be parted with by the management, for payment to the employee, without any amount of delay.