1. ' This appeal under section 47(3) of the Industrial Relations Ordinance, 2002 is directed against the order dated 2-4-2003 passed by the learned Presiding Officer, Labour Court No,VI, Hyderabad.
2. ' The relevant facts giving rise to this appeal are, that the respondent was employed as Office Assistant in the appellant's factory. The respondent remained absent from duty since 1-6-1998. He was issued a charge-sheet on 9-11-1998. The charge-sheet was sent to the respondent through registered post A/D, which was returned undelivered. Thereafter inquiry notice was issued, which was also returned undelivered. Inquiry notice was then published in daily 'IBRAT' Hyderabad on 12- 12-1998. The respondent did not join the inquiry, which was concluded ex parte. The Inquiry Officer found the respondent guilty of the act of misconduct. The respondent was, therefore, dismissed from service vide order dated 30-12-1998 The dismissal order was sent through registered post A/D.
3. Which was also received back undelivered. The dismissal order was then published in daily 'IBRAT'
4. Hyderabad dated 29-1-1999. After publication of the order of dismissal in the newspaper the respondent sent a grievance notice and finally filed petitioner with the learned Labour Court contending that he was involved in the Union activities, therefore, the Management has dismissed him with ma/a fide intentions. He prayed that his dismissed order be declared illegal and he may he reinstated in service with full back-benefits. The appellant was served with the notice and they filed their written statement contending that the respondent was dismissed on account of misconduct after completion of all the legal requirements.
5. ' On the pleadings of the parties the learned Labour Court framed the following issues:--
1. Whether the applicant is a workman.
2. Whether the applicant has cause of action to file the above application.
3. What shall the order be.
6. ' The respondent filed his affidavit-in-evidence and was cross-examined. On behalf of appellant Piyar Ali, Deputy Manager of the appellants factory, filed his affidavit-in-evidence and was cross- examined.. The learned Labour Court decided the issues Nos.1 and 2 in affirmative and framed the additional issue as follows:-- "Whether dismissal of the petitioner was illegal and in violation of law."
7. ' After examination of the evidence on record the learned Labour Court held that:-- "the management had tried its level best to give the full opportunity to the petitioner to defend his case, but it is the petitioner who deliberately avoided to participate in the enquiry proceedings.
8. Under law no any particular mode of service is prescribed, but only it is stated that person affected to be informed regarding proceedings by any mode. For that it is also to be ensured that the person affected should he told by any mode which is a precondition of the validity of any proceedings affecting him. The procedure in the Standing Order 15(4) of the Standing Orders 1968 is prescribed which says that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. This provision imposes the rights and obligations inter se and, therefore, for their enforcement the registered addresses of the workers are to be obtained. If the worker is available in the mills premises, there would be no difficulty in complying with the duty.
9. However if he is not available then it must be understood that the parties had contemplated to communicate according to the ordinary usage of mankind that is by post and if that procedure is followed then the employer is absolved from his responsibility. In a case Dawood Cotton Mills Ltd. v.
10. Guftar Shah and another reported as PLD 1981 SC 225, it was held that under law the worker is only to be informed regarding enquiry by any mode of service and if the service in ordinary mode is not possible due to fraud by anyone of the parties then the service by publication is to be resorted. It was further added that person against whom action is proposed if is impeding actual service of notice by his own negligence then he cannot be heard to complain of not having been actually served and the workman is also under obligation to keep the Management informed of his whereabouts and if he fails to do so, it amounts to impeding obligations of Management to afford him opportunity of being heard and the worker cannot complain of decision having been taken in his absence. Similar is the situation in the present case. It is the case of the respondent that on available address of the petitioner they had posted the letters which were not served but returned with endorsement that the petitioner was living at Mirpurkhas. It is not the case of the petitioner that he had given the address of Mirpurkhas to the Respondent, therefore, he cannot be heard to say that the letter was not addressed on his proper address Not only this, but even the respondent served the petitioner by making publication in Sindhi Newspaper which is the language of the petitioner. When the petitioner learnt regarding his dismissal from publication certainly he had not been unaware regarding date of publication of the enquiry proceedings in the same newspaper.
11. However, it appears that it is the petitioner who himself neglected or even chosen to remain absent from the participation of the proceedings before the Enquiry Officer, therefore his complaint cannot be heard that he was not given proper opportunity of being heard. Thus so far as the conduct of enquiry proceedings are concerned there is no violation of legal procedure which was fully complied with,"
12. ' After coming to the 'above conclusion the learned Labour Court took a view that, notwithstanding, the avoidance of respondent to face the enquiry, proceedings, the charge-sheet issued to him was time-barred. He held as follows:-- "Under Standing Order 15 of West Pakistan Industrial and Commercial Employment Standing Orders Ordinance 1968, the charge-sheet is to be issued to the employee within a period of one month of the alleged misconduct. In the present case it is stated that the petitioner was absent from duty since 1st June, 1998, therefore, under law he should have been given the charge sheet on or before Ist. July, 1988. It appears that the charge-sheet was issued to the petitioner on 19th November, 1989 which is hopelessly time-barred and no any explanation is given by the respondent that why such delay was committed in the matter. In a case Director-General Lahore Development ' Authority and others v. Abdul Rehman Shaikh and others reported as 1993 PLC 104, the Hon'ble Lahore High, Court held that if the charge-sheet was not served upon the employee within stipulated period of 30 days, It, is clear-cut violation of Standing Order 15 of Ordinance 1968. The similar view was also expressed in a case of Pakistan Engineering Company v. Mushtaq Ali and others reported as 1991 PLC 995. In the present case the charge-sheet was issued admittedly after more than 6 months of the alleged misconduct, hence it was hopelessly time-barred and was in violation of Standing Order 15 of. Ordinance 1968 and is illegal. All subsequent proceedings based on such charge-sheet will also fall on ground as it is well-settled law that when die basic order or action taken was illegal then all subsequent actions based on that action would fall on ground. Thus on that ground the proceedings are declared to be illegal, . However, in lieu of having reinstatement order of petitioner in service, I resort to the provision of subsection (5) of the section 46 of Industrial Relations Ordinance 2002 and hereby award compensation equivalent to 25 months basic pay last drawn and house rent if admissible as the petitioner had himself chosen to remain absent from his duty and it is not his case that he had actually performed the duty and was wrongfully charge-sheeted."
13. ' The appellant 'feeling aggrieved with the second part of the findings given by the learned Labour Court has preferred this appeal.
14. ' I have heard Mr. Asad Abbas Zaidi, learned Counsel for the appellant 4nd Mr. Mansoorul Haq Ansari, learned Counsel for the respondent.
15. ' Mr. Zaidi has submitted that thy, purpose of provision contained in Standing Order 15(4) of the West Pakistan (Standing Orders) Ordinance 1968 is to provide protection to workman and to afford him sufficient opportunity to explain the circumstances alleged against him. The provision which is in consonance with the principles of natural justice and is meant to provide sufficient opportunity to workman to defend himself, cannot be interpreted and stretched in a manner that it gives leverage to the workman whereby he is paid premium for his fault and misconduct. He has submitted that the single Bench judgments of the Lahore High Court, on which the learned Labour Court has placed reliance do not contain the correct interpretation of law and are against the manifest intention of the legislature. In support of his contention he placed reliance on a judgment delivered by Labour Appellate Tribunal Sindh in the case of Mrs. Sabiha Yousuf v. Pakistan International Airlines, 1982 PLC 584, wherein the provision contained in Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders)-Ordinance, 1968 came for consideration. Reliance was placed in this judgment on an earlier judgment of the Tribunal in the case of M/s. Khawaja Autocars Ltd. v. Syed Abdul Rehman, 1980 PLC 1236, wherein it was held as follows:-- "As to the second ground, namely, the delay in the service of the charge-sheet, it appears to me that the learned Labour Court has misconstrued the provisions of clause (4) of Standing Order 15.
16. The said clause renders invalid the service of a show-cause notice after the expiry of the one month from the date of the commission of misconduct for which the workman is charged or its coming to the notice of the employer. In the instant case the allegation against the workman was that he had remained unauthorizedly absent with effect from 11th October, 1979 upto 16th January, 1980 when the charge-sheet was prepared. There was thus continuity of the alleged misconduct upto the date on which the charge-sheet was prepared. Consequently, the charge-sheet was prepared and was served upon the workman well within the period of one month from the date of the alleged misconduct of the worker, as provided in clause (4) of Standing Order 15."
17. ' Following the view taken in the case of Khawaja Autocars Ltd. (supra) the learned Labour Appellate Tribunal held in the case of Mrs. Sabiha Yousuf as follows:- "In view of the fact that the absence from her duties of the . Appellant continued without interruption from 17th April, 1978 upto 8-2-1981 it was open to the respondent Corporation to treat the whole of this absence as misconduct as has been done by it. Since the misconduct constituted by the unauthorized absence of the appellant continued upto 8-2-1981 the requirement of clause
(4) of the Standing Order 15 was fulfilled upon the respondent Corporation intimating the appellant her misconduct within one month of her reporting back for duties. In fact the intimation of the misconduct was given to her within two days of her resuming duties. I am, accordingly, of opinion that there has been no violation of clause (4) of Standing Order 15 in this behalf."
18. ' On the other hand, Mr. Mansoorul Haq Ansari, learned Counsel for the respondent supported the view taken by the learned Labour Court that the respondent was absent from duty since 1st, June, 1998, therefore, under the law he should have been served with the charge-sheet on or before 1st.
19. July, 1998 and the issuance of charge-sheet on 19th November, 1998 was hopelessly barred by time. He has reiterated that the learned Labour Court has rightly followed the two single Bench judgments of Lahore High Court.
20. ' In the case of Pakistan Engineering Co. Ltd. v. Mushtaq Ahmed Bhatti, 1991 PLC 559 a learned single Judge of the Lahore High Court upheld the judgment of Labour Appellate Tribunal Punjab, whereby the worker was directed to be reinstated with back-benefits on the ground that the charge-sheet was time-barred in terms of Standing Order 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In this case the relevant facts were that the workman was involved in stealing the Hob Cutter belonging to the employer. The incident took place on 23-7-1976 and the F.I.R. Was registered on 24-7-1976. The recovery was made on the same day and the charge-sheet was issued on 27-8-1976 on the basis of information revealed by the police authorities on M-1976 regarding the involvement of employee. During the course of proceedings before the High Court the employee gave undertaking that he would not claim back- benefits. The learned single Judge of the Lahore High Court observed that ,a question of fact was involved as to when the employer came to know about the involvement of the workman in the theft and such exercise was not warranted in exercise of writ jurisdiction. The writ petition filed by the employer was partly accepted to the extent that the workman shall not claim back-benefits. In fact in this judgment no principle of law has been considered and decided, having the force of precedent. The learned Judge of the Lahore High Court decided the petition more on human consideration and compassionate grounds and adopted a compromise formula. This judgment cannot be followed as precedent deciding a principle of law. Moreover, the facts of this case were entirely different from the facts of the present case and consequently the facts being distinct the ratio of judgment is not attracted. In cited case the misconduct was committed on a particular date. It was not a continuing misconduct as in this case, which is similar to the case of which the learned Counsel for the appellant has placed reliance.
21. ' In the case of Director-General, Lahore Development Authority v. Abdul Rehman Shaikh, 1973 PLC 104, a learned single Judge of the Lahore High Court considered the provisions contained in Standing Order 15(4). It was held that the employer came to know about the misconduct of the workmen on 29-7-1987 and suspended them on 3rd of August, 1987, while the charge-sheet was served on 15th September, 1987. Labour Appel'ate Tribunal concluded that it was violation of the Standing Order 15(4). The petition preferred against the order of Labour Appellate Tribunal was dismissed. In this case also there was no continuing misconduct as in the present case and in the case of Mrs. Sabiha Yousuf (supra) decided by the Labour Appellate Tribunal, Sindh.
22. ' After a very careful consideration, I am of the opinion that the ratio of the two single Bench judgments of the Lahore High Court on which the learned Labour Court has placed reliance are not attracted to the facts and circumstances of the present case. Both the judgments of the Lahore High Court have been delivered in different circumstances wherein there was no continuing misconduct. In both the cases the misconduct took place on a particular date, while in the present case there is continued misconduct. In both the above cited judgments of Lahore High Court the provisions contained in Standing Order 15(4) have not been discussed in depth. On the other hand I have been able to lay hand on an earlier judgment of Lahore High Court in the case of Punjab Vegetable Ghee and General Mills v. Chairman, Punjab Labour Court No,1, PLD 1978 Lahore 1065.
23. While considering the purpose of provisions contained in Standing Order 15(4) to the effect that 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 employer and is given an opportunity to explain the circumstances alleged against him, it was held as follows:-- "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 of serving the desired purpose of law are abused to the unwarranted detriment of the employer and the economic conditions."
24. ' In the present case the admitted facts are that the respondent continuously remained absent from 1st June, 1998 till his dismissal from I service by order dated 30-12-1998. The employer did his best to serve the notices on him but the.
25. Respondent always avoided to receive the same. In spite of publication in the newspaper he avoided to join the inquiry. In these circumstances the direction that the respondent should be paid compensation equivalent to 25 per cent basic pay last drawn and house rent, if admissible, for the reason that he has himself chosen to remain absent from duty is negation of justice and the Courts are not supposed to interpret the law in a manner which perpetuates the perpetration of injustice. I am in respectful agreement with the view held by Justice (Rtd.) Z.A. Channa as Chairman, Labour Appellate Tribunal, Sindh in the case of Sabiha Yousuf, 1982 PLC 584, that in the case of continuing misconduct on account of unauthorized absence of a workman it was open to the employer to treat the whole period of absence as a misconduct and to serve charge-sheet within one month of the -misconduct continuing. Nobody can be allowed premium for his own wrong and consequently the respondent cannot be allowed compensation for the reason that he has chosen to remain absent from his duty as observed by the learned Presiding Officer, Labour Court No,VI, Hyderabad. A careful consideration of Standing Order 15(4) reveals that purpose of this provision is twofold. First, that the workman should be given sufficient opportunity to know the nature of allegations/charge against him and fair chance to submit explanation and defend himself. Secondly, the employee/workinan should not remain in state of suspense and uncertainly for indefinite period. If misconduct is committed and it comes to the notice of employer, then he should take a decision within a period of one month, whether the employee is to be proceeded with for the misconduct or not. If action is to be taken the charge-sheet is to be served on the employee within one month of misconduct or the date on which the alleged misconduct comes to the notice of employer. ,However, if the employer chooses to condone the misconduct for any reason and elects not to initiate action againstemployee by informing him in writing of the alleged misconduct, within one month, it would amount to waiver on his part. Once the employee is allowed to continue with the work for a period of one month as aforesaid, the employer shall be debarred from taking action against the employee for the particular misconduct. The Sword of Damocles cannot 'be allowed to be hanging on the head of empoyee for commission of a misconduct, for all the times to come. If action on the part of employer is not circumscribed with the limitation it will give exploitative leverage to him and shall make the life of employee miserable.
26. ' However while interpreting such provisions the Courts are supposed to strike a balance, which is sine qua non for administering even handed justice. There should be no extra ordinary tilt in favor of one or the other party. Keeping this principle in view the rule laid by Justice (R) Z.A. Channa in the case of Sahiha Yousuf appears to be based on sound footing. The period of limitation provided in Standing Order 15(4) shall commence from the date, the misconduct is concluded. However, if misconduct does not comprise of a single act and is a continuing misconduct, the period of one month shall commence from the date of conclusion of misconduct. If the misconduct continues and is not concluded, as in this case, the period of limitation shall not start running and the employer shall be within his right to serve the charge at anytime during the continuation of misconduct.
27. ' For the foregoing reasons it is held that the charge-sheet served by the appellant on the respondent for continuing misconduct was within time. The purpose of law was fully served and consequently the dismissal of the respondent from service is not open to any exception. The direction of the learned Labour Court for payment of compensation to the respondent is hereby set aside. The appeal is allowed accordingly.
28. ' After hearing the learned advocates for the parties on 19-4-2004 the appeal was allowed by a short order and these are the detailed reasons in support thereof.