Pakistan Case LawYAR MUHAMMAD KHAN Versus PRESIDING OFFICER, IVTH SINDH LABOUR COURT, KARACHI
This appeal challenges the dismissal of a grievance petition by the Fourth Sindh Labour Court, which upheld the appellant's termination from service. The appellant, a bank employee, was dismissed following a domestic enquiry for unauthorized absence from duty for over two months. The core legal questions were whether the appellant's telephonic intimation of illness constituted a valid leave application and whether the failure to provide a second show-cause notice or the enquiry report vitiated the dismissal. The Tribunal held that under Order 8 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a workman must formally apply for leave, and telephonic communication does not satisfy this requirement. Furthermore, the Tribunal ruled that a second show-cause notice is not mandatory in every case, and the burden lies on the employee to demonstrate that its absence caused prejudice, which the appellant failed to do. The appeal was dismissed, and the Labour Court's order maintaining the dismissal was affirmed.
- Does telephonic intimation of illness satisfy the requirement for a formal leave application under the Standing Orders?
- Is a second show-cause notice mandatory before the dismissal of an employee following a domestic enquiry?
- On whom does the burden of proof lie to establish prejudice caused by the non-issuance of a second show-cause notice?
DECISION
This appeal arises from the decision of Fourth Sindh Labour Court, Karachi whereby, the grievance petition of the appellant for reinstatement in service, was dismissed.
2.The appellant was appointed as a messenger or peon in the respondent‑ 'NDFC Bank, in the year 1986. On 6‑5‑1988 the appellant was transferred to Audit Division but he failed to join or resume his duties in that Division. He remained absent for 10 days and then attended the Audit Branch on 16‑5‑1988. Thereafter, the Bank was closed for Eid holidays but the appellant continuously remained absent from 22‑5‑1988 until he was served with the show‑cause notice after more than two months on 2‑8‑1988. After a domestic enquiry during which the appellant remained absent, he was dismissed from service.
3.It is the case of the appellant that he had fallen ill on account of pain in the spinal cord. That he sent telephonic message to Mr. Khattak, Vice‑ President Personnel, that he was ill and Mr. Khattak told him not to worry. The Advocate for the appellant has admitted that during the absence of the appellant from duty for more than 2 months no leave application was submitted to the Bank though it was mandatory under Order 8 of the Standing Orders Ordinance. It has also been admitted that till this day no Medical Certificate for the alleged illness has been produced. The appellant was therefore found guilty of misconduct during the domestic enquiry on a charge of remaining absent without leave for more than 10 days. The learned Advocate for the appellant has only emphasised the fact that the appellant did inform Mr. Khattak of his illness but under Order 8(2) workman desiring to obtain leave "shall apply to the employer who shall issue orders on the application within a week of its submission If the leave asked for is granted a pass shall be issued to the workman'. This fact of communicating information on the phone to Mr. Khattak cannot help the appellant and this fact has been denied by Mr. Khattak himself.
4.Mr. Gohar Iqbal has then raised the point that the copy of enquiry report was not given to the appellant nor was he served with a second show cause notice before dismissal, but in 1988 SCMR 1352 it has been held that it is not necessary in every case that a second show‑cause notice to be served. The burden is on the accused to establish that non‑issue of such notice had caused prejudice to him and adversely affected his case. There appears no mention of this contention in the decision of the Labour Court and this point appears to have been raised before the Appellate Tribunal for the first time. No prejudice is shown to have been caused to the appellant:
5.I, therefore, find no substance in this appeal which is accordingly dismissed and the order of the learned, Labour Court is maintained.
H.B.T./2430/L Appeal dismissed.
Judges on this bench
- Mushtak Ali Kazi240 judgments