SYED QAISER ALI HASHMI Versus M/S. ALLWIN ENGINEERING INDUSTRIES LTD.

ORDER

Syed Qaiser Ali Hashmi , has come for re‑instatement, with consequential benefits against the wrongful dismissal.

2. Applicant is a permanent workman, charged with misconduct of being absent for 77 days, in the period starting from 1st week of January, 1984, to 1st week of December, 1984 and charged first time on 20th January, 1985 after two months of the misconduct which came to the knowledge of respondent.

3. Mr. Qaiser Hashmi has accused the management of holding enquiry which was vague, perverse and time barred.

4. Mr. Qaiser Hashmi has taken this defence that there is no practice in the Allwin Engineering Industry to acknowledge the leave application, when applicant submitted application on the ground of illness, for the period from 1st week of January 1984 to December, 1984.

5. Respondent Industry has challenged the legality of the application being without jurisdiction and on the factual plane, contended that habitual absence of 77 days without permission of his Officer, was the breach of the sense of duty and rather unproductive to be source of financial hardship.

6. Respondent has also contended that Mr. Qaiser Hashmi was warned of his conduct by habitual absence and without permission to remain absent. He fully defended his proceedings and given the opportunity of defence with all the legal requirements of the enquiry in the domestic forum. Above all the respondent has contended that he made no application of leave. It is based on misrepresentation of facts. His dismissal was perfectly justified to enforce the rules of discipline which was expected of him in the Industrial working of which he had to share the harmony.

Following are the points for determination:

(1) Was Mr. Hashmi absent from duty without permission?

(2) Was his absence unintentional?

(3) Was the charge‑sheet barred by limitation?

(4) What is the effect of habitual absence?

REASONS:

1. There are two contentions, raised of legal interest whether the absence was habitual absence without the permission of the superior officer. Whether applicant was suffering from sickness which disabled him to move. Secondly, whether the charge‑sheet was served, within one month of the incident of misconduct, whether during absence he was intimated of the rejection or acceptance order.

2. In Para 3 of the petition, he has frankly admitted that he was absent from 1st week of January, 1984 to December, 1984, but he had made application for leave. There was no practice to receive the application by acknowledging the receipt.

3. Firstly, the Court has examined the notice of grievance which is part of the evidence, what Mr. Qaiser Hashmi has relied in his Affidavit to be part of the proceedings. His contention raised is that he was forced to resign and was the active member of the CBA. This Court has found no evidence of compulsion or evidence of victimization, or enquiry report nowhere indicates, that he examined the CBA President or even the least it can be said that he examined President of CBA in the Labour Court to suggest victimization.

4. The case, therefore, is very simple of absence.

5. The second question will follow, whether he was a sick man. The Court has no doubt about his previous sickness, when Court has examined the slips of the Social Security Institution which is the strong evidence of 129 days absence admitted by the respondent and suggestive of the proof that Mr. Hashmi was sick man during the relevant period, otherwise, what the normal man should be on short illness.

6. Third question, which is of legal interest and more emphasized is that charge‑sheet is time barred.

7. The Court certainly would have taken the view that if the absence from January 1984 to December, 1984, whether the management proceeded to charge‑sheet him within one month from January 1984, which is not the case here. But the case of Mr. Hashmi has distinctive features, from the case of Mr. Shahid Aslam of the same industry, also being decided by this Court. Generally for habitual absence, management has to inform the applicant, either his leave is accepted or rejected and also pointedly, putting him on warnings that previous absences are habitual absences, to be considered if he did not improve. By this alone, the Court could draw this conclusion that when the cause of action for charge‑sheeting the employee of misconduct arose, within limitation. If the management also does not inform the employee of rejection or acceptance of leave, it is also assumed that they accepted leave. But in this case, new fact has come on the record which was not in the case of Shahid Aslam. Here Mr. Qaiser Hashmi was given warning dated 13th September, 1984. This question has been specifically confronted to the witness of respondent, in the evidence where witness confidently stated that warnings were given. Record was produced. When the Court has seen the enquiry file, the Court finds nowhere the register. That is exactly, the applicant's counsel has offered the suggestion which witness has not accepted. Where is the record of the register. Court find nowhere or any such warning letter, the Court has found in the enquiry file. Whether Mr. Hashmi were shown such warnings to meet with this challenge, the Court certainly would have been assisted with the attendance register and the warning letter, to show the consistency of the finding of the Enquiry Officer, whether such record was looked into at that stage. What the Enquiry Officer has given its observation, in the report, the Court has confirmed, now its belief that warnings were brought on the record and not produced before the Court along with the file. The Court has found further assistance from the letter of 13th June 1986 where management has again repeated informing Mr. Hashmi about the enquiry report provided to him which otherwise he was making protest that no enquiry report was being supplied to him. Therefore, all the doubts of the warnings, if found in the enquiry report are excluded that there was no manipulation and what the warning letters were produced before the enquiry of which he had participated he had looked into and challenged it before the Enquiry Officer.

8. The Court has also further taken assistance, from the record, whether the application was given by Qaiser Hashmi to the management from time to time for leave. Generally it should always be the conventional practice, that person, who sends application, also maintains the record and the burden of proof of the fact, is initially on him to discharge. There is no application, found in enquiry file or intimation by telegram or proved by verbal message or by documentary record or to raise the protest that no such application was entertained and acknowledge. But what has impressed the Court is that letter of 6 th May, 1984 is brought in the Court's record where Mr. Qaiser Hashmi is shown to have applied for leave, on the ground of illness. It was thrown on the ground that doctor's certificate do not vouche ‑safe, the accuracy of truth, and further qualified with the words "for obvious reasons".

9. This aspect the Court has minutely examined, what efforts were taken by the management to seek the clearance from the Medical Officer of any clinic which they could do so in the form of querry from that doctor whether certificate was false or illness was pretension. No Medical Officer also was examined to impeach his evidence on the question of illness that he justified leave on that ground. This letter is of 6th May, 1984, and thereafter there have been absence upto December 1984.

10. At the same time this letter of 6th May, 1984 also Chas shown that management informed Mr. Qaiser Hashmi that if he had any grievance regarding issuance of fitness certificate, he was at liberty to approach the Social Security Authority. This was to give the confidence to the employee that the management bad no intention to reject his leave application outright. But Mr Qaiser Hashmi did not respond till December as per record and went in chronic absence of the duty, without permission, which otherwise was not being granted by the employer.

11. With this background, if Mr. Hashmi was certainly on the warnings, then in view of section 15 of Standing Orders Ordinance, if there is absence without leave of habitual nature or for more than 10 days, the Court is to examine this legal asner?t _ Thic qualification of one month, being the time limitation on the charge sheet also emphasized in subsection (4), firstly, is to start from November, 1984 and his previous absence shall be read as habitual absence for the reason. If the applicant was being warned, then from the month of November, 1984 to December, 1984 he was absent for 12 days within limitation. Thereafter the habitual absence is supported by warnings not otherwise by means of acquiesce or waiver. Through the employer had liberty to charge sheet him or to show his habitual absence. The position certainly would have changed, if no warnings would have been extended, the question of limitation arose whether to take habitual absences into consideration by means of waiver or acquiesce. In other words the warnings were in the nature of advice of improvement and there was no improvement, despite the fact that the management had given chance to the employee to get the clearance from Social Security.

12. In the result the finding of the Enquiry Officer, fully supports his absence that he never obtained leave permission and remained major portion of the year in absence without work. The last months of November and December default show his absence of more than 10 days supported by the instance of habitual absence, with the warnings of which he had clear notice, even during the enquiry where he had opportunity to face this document.

13. Regarding the nature of punishment, the Court is of the opinion that punishment of dismissal, in the peculiar circumstances of this case is not warranted. There are absences which may be willful or unintentional or in disregard of the rules. Subsection (2) of section 15 provides the different categories of punishment looking to the gravity of the charge, such as major penalties are often awarded in serious cases like fraud, theft, damage to property, violence. So each case is to be distinguished for the absence is also an act and omission such as misconduct but in the nature of punishment as subsection (2) the punishment varies what the Court will find proper and just.

14. The applicant though has pleaded that he was a sick man but has failed to establish by evidence. His statement of sickness can still be considered at the time of punishment whether he followed the rule of conduct, in the circumstances placed in each case.

15. The impugned order of dismissal is modified to the extent of the withholding of increment of one year, as the first warning. Nevertheless his absence for all these days if can be adjusted from the leave due and earned, can be considered; if no leave is due, it can be adjusted without pay.

16. Regarding back benefits the Court is to point out that back benefit is a question of fact, and to be examined in the circumstances. Back benefits means the benefits which he claims during the period of litigation. He cannot be entitled to the benefits of which he has not worked for, the benefits depend on the earnings what work he did legitimately to earn the prosperity of the company. If he has not worked and he has been held guilty of absence the Court will decline to grant him back benefits if he pleaded that dismissal is being modified by minor penalty, with re‑instatement and, therefore, back benefits be granted. The Court is to point out to the employee that he has been guilty of absence but in the nature of punishment, the Court has found proper exercise of discretion. So, if he has earned the benefits prior to his litigation shall not be affected, There is line of distinction that if employer treats his leave with pay then his working of those periods can be considered at the time of the entitlement of bonus or other privileges. If leave is not due and the employer gives him without pay the employer will use his judgment at the time of such entitlements whether he is entitled to bonus etc.

17. Application is allowed to the extent as observed by the Court. He will be re‑instated when the dismissal is modified. His increment of one year will be withheld. He will not be entitled to back benefits during the period of litigation. Reference is also made to case of Shahid Aslam which is also decided by this Court today to be part of the record. The intimation be sent within 7 days.

A.E./996/Lb.S ?

Application partly allowed.