1. ' Nom Khan filed an application for his re-instatement in service under section 25-A of the Industrial Relations Ordinance, 1969 against Khyber Tobacco Company Ltd., on 5th November, 1976.
2. ' The facts alleged in the petition are that the petitioner who is employee of the respondent- Company was involved in a murder case and was sent to judicial lock-up wherefrom ho was released on 28th July, 1976 and acquitted by the Additional District and Sessions Judge, Mardan.
3. Due to the petitioner's confinement in Jail he could not attend to his duties and his services were terminated without a show-cause notice, enquiry or even intimation of termination order. When the petitioner was acquitted of the charge of murder he went to the respondent establishment on 29th July, 1976, and he was informed that he should bring copy of the judgment in the murder case. The petitioner obtained a copy and submitted it to the respondent establishment on 13th July, 1976, when he was informed that his services were terminated. The petitioner served a grievance notice under section 25-A on the respondent to the effect that the impugned order is illegal and could not have been passed, as no show-cause notice was served or enquiry was held, that the petitioner could not attend to his duties for the reasons beyond his control and that the petitioner was entitled to indefinite leave per usage in the factory. The petitioner was also party to the pending industrial dispute during the pendency of which he could not be expelled from service. In the reply filed to the application the respondent has taken up the stand that the services of the petitioner were terminated on 18th August, 1976 and hence the grievance notice and the petition both are time-barred. Moreover the respondent had shown over indulgence to the petitioner by allowing him "Z" leave for a specified period for the reason that petitioner was in jail and when petitioner did not attend to his duties on the expiry of the leave his services were terminated and accordingly his services were terminated on 18th August, 1976 under Standing Order 12 of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance VI of 1968, vide letter No, PD-17. The letter was sent to the petitioner on his own address as the Jail address of the petitioner was not known to the respondent.
4. ' In this case the following facts are admitted which need not be discussed :-
(1) The petitioner was an employee of the respondent.
(ii) The petitioner was arrested under section 302, of P. P. C. On the charge of a murder and remained in judicial lock-up till 28th July, 1976, when he was acquitted by Additional District and Sessions Judge, Mardan.
(iii) The petitioner applied for indefinite leave till his release which application was not allowed.
(iv) The jail address of the petitioner was not known to the respondent therefore the entire correspondence and termination orders were communicated to the petitioner on his home address and hence as the petitioner was in jail there is no proof that he received this letter and termination orders in jail.
(v) There is a precedence in the respondent establishment whereby indefinite "Z" leave was allowed vide Exh. P. W. 1/5, to one Subedar Abdur Rehman an employee of the respondent establishment.
(vi) No enquiry, show-cause notice, charge sheet or termination orders were served on the petitioner.
(vii) The petitioner served a grievance notice under section 25-A of the Industrial Relations Ordinance which was rejected and hence the present petition.
5. ' In view of the above admitted facts it is clear that the absence of the petitioner from duty was not wilful and beyond his control and following the precedence in Exh. P. W. 1/5, the petitioner should have been allowed "Z" leave. The petitioner has admittedly not received any termination order because these were sent at his home address and not at his jail address. I do not agree with the learned Representative of the petitioner that his services could not be terminated under section 47 of the Industrial Relations Ordinance because of the fact that an Industrial dispute is pending adjudication.
6. ' Section 47 of I. R.
7. 0.-Section 47 (b) clearly lays down that 'service can be terminated for misconduct not connected with the dispute and in this case the alleged misconduct is not connected with industrial dispute but however this will not affect the case of the petitioner. The petitioner was in jail and could not attend his duty. He applied for "Z" leave respondent should have been allowed to me. As regards the limitation for grievance notice under section 25-A of the Industrial Relations Ordinance and petition under section 25-A of the Industrial Relations Ordinance the admission in the written statement to the effect that the termination orders were addressed at home address of the petitioner whereas the petitioner was in the jail it can be concluded that the petitioner did not receive these and when he was released from jail he came to know about the termination of his service, served the grievance notice and preferred the petition. Hence the petitions, when reckoning the time from the date of the knowledge, is within time and so is the grievance notice.
8. ' In this case the main contention of the learned counsel for the respondent has all along been that the services of the petitioner were terminated for the reasons of his long absence under Standing Order 12 of the Standing Orders Ordinance, 1968 as the petitioner does not have any secured and guaranteed Rights therefore the order is perfectly justified in the circumstances of the present case. There is no doubt that the services of an employee can be terminated under Standing Order 12 of Standing Orders Ordinance, 1968. In this case the reason apparently is absence from duty which comes into the purview of the misconduct and thus it is though called an order passed under Standing Order 12 of the Standing Orders Ordinance of 1968 yet in my opinion the termination is on the basis of misconduct for having remained absent from duty for a long time.
9. As regards the second point it has been already over emphasized earlier in this order that it was beyond the power of the petitioner to attend his duties because of his judicial lock-up and therefore natural justice demands that he can be re-instated. Hence I find no force in the contention of the learned counsel for the respondent.
10. ' In view of the above consideration I allow the petitioner and order his re-instatement with effect from 5th November, 1976. He would be entitled to back benefits only from 5th November, 1976.