' The respondent No, 3 was employed as Ammonia Compressor Attendant in the petitioner- Company. He applied for leave without pay for the period from 11th of March, 1977. To 10th of April, 1977. It was however, granted only up to 26th of March, 1977. On 27th of March, 1977, a telegram for further extension of leave for a period of 10 days was received on his behalf but it was not allowed.
2. The respondent No, 3 reached Saudi Arabia and got employment in M/s. Saudi Arabia Fertilizers Company Limited, Al-Damam, Saudi Arabia. As the respondent had not reported back for duty, on due date, the petitioner sent a notice dated 14th of April, 1977 asking him to show cause as to why he should not be dismissed from service for being absent from duty without any information and permission w,e,f, 5th of April, 1977. The brother-in-law of respondent No, 3 who was also working in the petitioner-Company, wrote a letter dated 14th of April, 1977, requesting on behalf of the respondent, for further leave for the period from 7th April, 1977 to 6th of May, 1977 in order to facilitate the respondent to submit his resignation. It was made clear in that letter that respondent had already secured an employment abroad and would be submitting his resignation which would ordinarily take long time to reach in view of defective postal system in Saudi Arabia. The petitioner sanctioned leave on this representation up to 30th of April, 1977.
3. The respondent No, 3 neither tendered his resignation nor did he report for work up to 13th of May, 1977. Consequently the petitioner sent to him another notice dated 13th of May, 1977 saying that he was guilty of misconduct under section 15(3)(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. No reply was received from respondent No, 3 uptil 19th of May, 1977. The petitioner, therefore, issued another notice dated 19th of May, 1977 which was received by him on 20th of May, 1977. On that day, the respondent No, 3 applied for leave from 1st May to 20th May, 1977. He also joined inquiry proceedings.
4. The Inquiry Officer recorded the evidence and submitted his report for further action. It came up before the petitioner who vide his order dated 15th of June, 1977 dismissed the respondent from service with immediate effect, under Standing Order 15(3)(e) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
5. The respondent No, 3 served a grievance notice under section 25-A against the order of dismissal on the Managing Director of the petitioner-Company. Later he filed a petition under section 25-A of the. Industrial Relations Ordinance, 1969 for re-instatement in service and consequential benefits before Labour Court (the respondent No, 1). This application succeeded with the result that respondent No, 3 was re-instated with back benefits, vide order dated 2nd of February, 1978.
6. The petitioner challenged that order in appeal before the Appellate Tribunal. The appeal was admitted and 'stay' also granted. However, as the appeal could not be decided within 20 days, the stay order stood automatically vacated, in view of section 37(3) of the I. R.
0., 1969. The petitioner, filed the present writ petition for the reason that the adequate remedy already availed of had become inadequate for failure, on the part of respondent No, 2, in deciding the appeal within the time provided by law.
7. The Labour Court allowed the application of respondent No, 3 on the grounds :-
(a) That the respondent No, 3 had not been informed of the alleged misconduct in writing at his new place of employment in Saudi Arabia of which the petitioner was aware ;
(b) the inquiry had not been initiated under the orders of the Managing Director.
' It is contended by the learned counsel that the petitioner did not know respondent's address and was left to correspond with him on the address given by him. He further submitted that in any case no prejudice has been caused to the respondent who had not only accepted the facts of his absence and of seeking another employment but had fully participated in the inquiry and defended himself. The learned counsel further stated that the respondent No, 3 shall be deemed to have absented from duty since 5th of April, 1977 as the extension in leave for absence could be granted only on a written application from the workman himself under Standing Order 8. In the alternative, it was argued that the extension in leave had been granted not for the purpose of employment but to facilitate respondent No, 3 to submit his resignation after he had found another job.
8. In order to appreciate the point being raised it will be of advantage to narrate the admitted facts. The respondent in his statement before the Inquiry Officer admitted that-
(i) he applied on 9th of March 1977, for leave from 11th March 1977 to 10th of April, 1977, while leave was granted up to 26th March ;
(ii) he left Lahore for Saudi Arabia on 9th March ;
(iii) he left Karachi for Saudi Arabia in the second week of March ;
(iv) the telegram dated 26th March for extension of leave was not sent by him but by his brother- in-law ;
(v) he is not aware of the application dated 14-4-77 for leave ; and
(vi) he arrived in Lahore on 19th May and applied on 20th May, 1977 for extension of leave from 1-5- 77 to 20-5-77.
' The respondent thus admitted all that was to be proved by the petitioner against him to show that respondent remained absent from duty for more than 10 days without information and permission, as required under Standing Order 15(3)(e).
9. The only question arising for determination, therefore, is, can the respondent despite his own admission insist that the notice sent to him under Standing Order 15(4) was defective and that a notice ought to have been sent to him at his new address after finding out the same from respondent's brother-in-law, who was an employee of the petitioner? Standing Order 15(4) reads :- "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman : ' Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."
' It has three requirements-
(a) the workman must be informed in writing of the alleged misconduct within one month of the date of such misconduct ;
(b) the workman be given an opportunity to explain the circumstances alleged against him ; and
(c) the approval of the employer shall be required in every case of dismissal .
10. From the facts given above if we take the date of alleged absence as 27th March, the petitioner had sent a notice on 14th April. If the absence is from 1st May, a notice had been sent on 13th May.
Both the notices had been sent on the address available with the petitioner's office. In any case, respondent's brother-in-law who was helping him throughout and was m correspondence with him had informed him in a letter received on 26th April, asking him either to send resignation or to come back. The requirement of law is that the workman must be informed of the 'misconduct'. This was known to the respondent on 20th May, when he applied for fresh leave and before he joined inquiry proceedings. The view of the Labour Court that notice should have been sent to Saudi Arabia is, therefore, fallacious. The object of the law had been achieved. The safeguards provided therein are to ensure that the workman knows the allegations against him so that he can properly and adequately defend himself. These safeguards, however, cannot be stretched to the extent that they instead o serving the desired purpose of the law are abused to the unwarrant detriment of the employer and the economic conditions. The respondent knew full well the charges and in fact admitted their correctness. I am, therefore, quite clear in my mind that the Standing Order 15(4) had been complied with and no illegality calling for interference by the Labour Court was available.
11. It may further be mentioned here that according to Standing Order 15(4) the workman has to be informed of the alleged misconduct within one month of the occurrence or the knowledge of it by the employer. If the view of the Labour Court is to be accepted, then perhaps every workman who is so minded may turn round to challenge the service of notice on him on a plea that he had left his previous address to the knowledge of the employer, who should have located the new address, to serve a notice on him within time. Such a situation cannot be allowed or even encouraged by Courts which are required to interpret law so as to achieve its purpose and not to let it see defeated by contrivances and far-fetched construction.
12. The learned counsel for respondent No, 3 pleaded that the inquiry proceedings should have been initiated by the employer in accordance with the Standing Order 15(4). In the case in hand, it was alleged that the Personnel Manager was not the employer so as to be entitled to initiate the] proceedings. The 'employer' is defined in section 2(c) of the standing Order Ordinance to include a Manager so named therein. The learned counsel for the petitioner submitted that the Personnel Manager had been so named) and that it could have been proved before the Labour Court if the respondent had, at that time, taken any such objection. He also referred to the grievance notice of the respondent where he did not take that point. No such objection was raised before the Inquiry Officer or even the Labour Court. In this view of the matter, I am inclined to agree with the learned counsel for the petitioner that firstly the objection is purely a question o fact and secondly having not been raised before the Labour Court or the Inquiry Officer, it should not be allowed to be raised at this stage. The respondent shall be deemed to have known that the Personnel Manage was the Manager for the purpose of section 2(c) and hence he took an objection.
13. The learned counsel for the respondent then submitted that as the appeal is pending before the Appellate Tribunal, the constitutional jurisdiction may not be exercised at this stage. Firstly, this objection was taken after the arguments of the case had been concluded. Secondly, the appeal is fixed for 27th of July, 1978. As the petitioner has come to this Court for the reason that the remedy before the Appellate Tribunal has become inadequate in view of vacation of the stay order and as the full addressed arguments have already been heard, I do not think it will serve the purpose of justice if this case, at this stage, is adjourned. It was held in Abdur Rehman and 5 others v. The State and 3 others (1), that where the remedy available was not adequate and the objection as to the alternate remedy was raised at the argument stage the remedy under the constitutional jurisdiction should not be refused.
' For the reasons given above, the impugned order of the Labour Court is declared to be without lawful authority and of no legal effect, but the parties are left to bear their own costs.