1988 PLP 206 (PLC)

Mr. Sajjad Rasool has put up a very brief prayer, that his absence from duty from 12‑9‑1985 to 15‑9‑1985 was due to illness, which developed during the period of Casual Leave. He was removed to Multan, his native town and remained under medical treatment for further period from 15‑9‑1985 to 30‑9‑1986.

2. Applicant sent the medical certificates supporting by leave application duly endorsed by the Civil Surgeon. Despite that illness respondent issued show‑cause notice dated 5‑11‑1985. Respondent again issued another show‑cause notice dated 29‑6‑1986 that applicant has remained absent for more than ten days. Respondent issued enquiry letter dated 17‑7‑1986 for his appearance before the Enquiry Officer on 31‑7‑1986 when he was confined to bed and was not in position to travel and come to Karachi. On 30‑9‑1986 applicant was given the medical fitness certificate to go and resume duty. He resumed duty on 3‑10‑1986 and worked upto 6‑10‑1986. On 6‑10‑1986 applicant was disallowed to continue his duties and given the dismissal order in the hand in respect of the notice of show cause which was of 29‑6‑1986.

3. In other words applicant has the grievance that the medical certificate certified by the surgeon was the evidence of illness. Two notices of show cause were not in conformity with the provisions of Standing Orders, applicable to the respondent. His third grievance is that his absence was not deliberate.

4. The reply of the respondent is very simple that applicant was allowed four days leave from 12‑9‑1985 to 15‑9‑1985. They have taken this firm stand that applicant did not join duty when he was dismissed on 2‑10‑1986. REASONS:

1. This is a peculiar case, where applicant was on casual leave from 12‑9‑1985 to 15‑9‑1985, he first time came on duty on 2‑10‑1986. The date of joining report is also matter of dispute. The explanation tendered by the applicant was that he was under serious illness from 15‑9‑1985 to 30‑9‑1986 and sent the medical certificate.

2. The Court has gone through the certificates which are of the Medical Superintendent, Civil Hospital, Multan. In one certificate Annexure‑A/1 he shows that applicant was suffering from fever and from Polyartheritis and needed rest and treatment for 2 months from 15‑9‑1985 to 14‑11‑1985. He was again granted extension of two months. Following these 2 months, again he was granted two months and succeeded by one month more, with the endorsement that he should fully recover.

3. What the Court has gathered from the notice of show cause dated 29th June, 1986 which followed after 5‑11‑1985, that the Steel Mill condoned the disciplinary action being satisfied with the medical disability but contended that they did not hear anything from him from 15th May, 1986 and, therefore, he was absent for more than ten days. This is the crucial aspect.

4. In the first place the burden of proof is on the employee who seeks the finding of unintentional absence, that is he should have examined Medical Superintendent of the Civil Hospital, particularly in a case where other party does not reconcile with his disability of such sort that he could not move or was so disabled of doing duty after 15th May, 1985. Naturally every employer will do when he will see the absence of one year, reacting on the benefits and the privileges which employee is entitled in the job. No certificate is produced after 15th May, 1986. But the Medical Certificate A‑2 which has been issued shows that Civil Hospital, Multan has shown his illness of the same fever and polyarthitis asking him to rest and get the treatment from 14‑6‑1986 to 30‑9‑1986. This certificate has been issued by private clinic but countersigned by Medical Officer Civil Hospital, Multan which according to the medical rules should have been followed by the signatures of the Medical Superintendent, who was in better position to look into the progress in context of his earlier endorsement.

5. If the absence of the applicant are examined in context of the medical certificates, the earlier period granted expired on 14th April, 1986. But the second certificate is issued dated 14‑6‑1986 with no explanation, what happened during that period. If the argument is advanced that the disease was of such nature that he was unable to move, the disease of fever or polyarthitis was not of such character that he was practically paralised and was unaware of the procedure even to send few words of telegram to keep the administration informed of such developments. Much has been said of Annexure‑H which is the application sent to the Operational Head where the applicant concerned firstly has given the photo copy whose dispatch date is not clear or when the author has written with such ingenuity. There is a vacant space for the Court to take idea of the exact date. But this much is certain that month is September 1986. The contents of the application show that applicant has informed the Administration officials that he has sent the medical certificate, before 15th June. Where is that medical certificate from that period of 15th stay, to 14‑6‑1986, there is no satisfactory explanation. No copy is produced of that certificate or Medical Officer of any clinic is examined to support such disability.

6. Much has also been said that show‑cause notice of 29th June, 1986, the notice of show‑cause is not within one month. Subsection (4) provides that no order of dismissal shall be made unless the workman concern is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date of which the alleged misconduct to the notice of employer. If 15th May 1986 is supposed to be the starting point of limitation, the second point arises, when the employer came to know of the misconduct. The word misconduct and the conduct, are in different connotation. In other words the conduct and misconduct are two different things. If the employer did not hear from 15th May, 1986, the employer had not made up his mind about the misconduct. In the ordinary course of official business Court can take notice of that after 15th stay the matter must have been placed before the Administration Officer and finally on 29th June, 1986 after the second certificate was received when they found no explanation, the show‑cause notice was issued. So one month's time as a limitation that time accrued from 15th May to 15th June cannot be considered as the exact date of the misconduct. There are three stages, firstly it should be within one month of misconduct. Secondly on which date the misconduct came to his notice and thirdly when he is given opportunity to explain the circumstances.

7. This is a peculiar matter also where first notice of show‑cause dated 5‑i1‑1985 was given. Notice was given on 25th May, 1986. Notice of enquiry was given on June 5, 1986. Finally the second notice was given on 29th June, 1986. So naturally the charge whit shall be understood will be of second notice of 29th June, 198 because by 15th April medical certificates were received and another cause of action developed from 15th May, 1986, and the show‑cause notice was given in respect of misconduct finding no explanation o intervening period. The notice of show‑cause is within time limitation. Besides the judgment of the misconduct by the employer is a question of fact when he made up mind. Merely to contend for argument sakes that every day be counted for the purpose of such limitation can only lead to technicality. It is only the fact, when the employer, came to form his judgment that misconduct, has accrued and notice of show cause be given.

8. Mr. Sajjad Hussain has not said that he did not receive the show‑cause notice or the notice of enquiry. He simply has justified the illness by referring to the certificate to seek Court's indulgence. Whether the absence was willful or unintentional. The last certificate shows that he has shown his illness from 14‑6‑1986 to 30‑9‑1986.

9. Precisely, therefore, the absence was there from 15th May and there was no intimation from Mr. Sajjad Rasool, but produced medical certificate late from 14‑6‑1986 to 30‑9‑1986. The nature of his disease was not of such nature to have completely paralyzed him from being unconscious of his duties and obligation towards the employer.

10. Regarding previous absence if the Court has taken the view that it was based on the medical certificates, though it was for him to have examined the medical superintendent yet, the absence of a period in question from 15th May was unexplained and was intentional absence for that particular period more than ten days. Subsection (3) of section 15 of the Standing Orders Ordinance speaks of acts and omission to be treated as misconduct and the punishment is provided in subsection (2) of various types looking to the gravity of the charge. In the peculiar circumstances the minor punishment can meet the requirement of justice. Mr Mansoor Alam has gone deeper, into the legal aspect, of the arguments that if an employee remains absent for one year, the biggest organisation like Steel Mill will not be in position to maintain the discipline, if lenient view of punishment is taken. Mr. Mansoor may be right, that discipline is the highest attribute in every activity of life. Its loss gives rise to many] complications. But if an employee is suffering from illness which is the factor beyond control the conduct of the employee is examined in light of the circumstances whether the absence was intentional or an unintentional or beyond the control. They have also certain privileges of medical leave, other leaves etc: At the same time the absence from duty affects the working of the huge organisation where the absence of one man can also cause the economic loss to the disadvantage of both the sides. His absence period was treated as leave without pay end, therefore, the minor punishment of withholding of increment for one year will meet the requirements of justice, with an advise to the employee of future punctualities. The impugned order of dismissal is modified. He is re‑instated with back benefits, which have accrued prior to dismissal and misconduct and not those benefits accrued during litigation when he has not physically worked to earn the prosperity of production. However, his entry of withholding increment shall be in his personal file to appreciate in future litigation if there is. Application is allowed to the extent of such directions. A.E./986/Lb.S Application allowed.