1992 PLP 794 (PLC(CS))

This is an appeal against the order dated 18-7-19911, passed by the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad whereby the grievance petition of the respondent was allowed and he was reinstated in service with full back benefits.

2. I have heard Mr. NA. Talpur, learned Advocate for the appellant and Mr. Bashir Ahmed, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

3. The brief facts of the case arc that the respondent proceeded on leave from 1-4-1989 to 30-4-1989. However, he did not resume duty on 1-5-1989 but sent a telegram and telex for extension of leave. On 10-6-1989 he reported for duty and produced a Medical Certificate to explain his absence. He was charge-sheeted on 13-6-1989 and after domestic enquiry he was dismissed from service by order, dated 17-9-1989.

4. Mr. Bashir Awan, learned Advocate for the respondent has contended that charge-sheet was vague and that evidence in enquiry did not prove the charges. The charge-sheet shows that the respondent was in the habit of overstaying after he proceeded on leave as was evident from the record of 1987, 1988 and 1989 and he habitually remained absent after leave for more than ten days. This charge-sheet obviously does not show for which period he remained absent for more than ten days and when and on what occasion he overstayed after he proceeded on leave though years are shown in the charge sheets. Before the Enquiry Officer during the course of enquiry it has come on record that he overstayed when he proceeded on leave on certain dates in 1987, 1988 and 1989. However it is admitted by all the witnesses that the period of overstay was subsequently regularised. The immediate superior of the respondent Dr. Zia-ul-Haq has stated that the respondent was treated by him for Renalcolic and Jaundice. He also admitted that he verified the Medical Certificate produced by the respondent, on 1(1-6-1989 and that the appellant was performing duties efficiently and that whenever he remain-d absent he had fulfilled necessary requirements and sent information about sickness, etc.

5. It may be pointed out that the respondent had produced medical certificate, dated 1-6-1989 which shows that he remained under treatment of Municipal Medical Officer of Gujrat as a case of Renalcolic and Jaundice and was advised rest from 1-5-1989 to 10-6-1989. The verification of this certificate is admitted by Dr. Ziaul-Haq. It is contended by Mr. NA. Talpur, learned Advocate for the appellants, that the summons sent to the Doctor were received back with endorsement that there was no such doctor by that name in the dispensary. However it is admitted that the application for summoning of the doctor was subsequently withdrawn by applicant. In view of the fact that the respondent had previous history of Renalcolic and Jaundice as stated by Dr. Ziaul-Haq, this certificate does not appear to be unbelievable and satisfactorily explains the absence of the respondent. Even witness of the appellant before the learned Labour Court. Col. Azhar Hasan admitted in the cross-examination, that the management had not disputed the medical certificate produced by the appellant.

6. As already pointed above the charge-sheet is vague in the sense that the dates on which the respondent is alleged to have remained absent without leave are not specifically mentioned in the charge-sheet and therefore in fact when in the enquiry those dates were specifically mentioned by witnesses, he was taken by surprise. He therefore could not be said to have been given proper opportunity to defend himself.

7. The charge-sheet shows his acts of alleged misconduct in the years. 1987, 1988 and 1989 but report of the Enquiry Officer shows that he had taken into consideration the alleged absence of the respondent in 1986 also regarding which there was no mention in the charge-sheet. Thus the Enquiry Officer while formulating the report was influenced by extraneous evidence.

8. Mr. N.A. Talpur has relied upon the decision of learned Division Bench of Sindh High Court in the case of Ahmed Nabi v. Sindh Labour Appellate Tribunal and others 1986 PLC

42. In that case unproved medical certificate produced by workman was not considered sufficient to prove his absence. However, facts of the instant case appear to be distinguishable from the reported case. As pointed above, in the instant case, the medical certificate was not disputed by the management and it was verified by the Medical Officer. Furthermore, according to Medical Officer of the appellants the respondent did have past history of the disease mentioned in the Medical Certificate.

9. In the case of Umer Rahim v. Al-Azam Ltd. reported in 1986 PLC 192, this Tribunal had held that mere submission of application for extension of the leave would not be presumed to have been granted and absence, in such case would be unauthorised, falling within mischief of Standing Order

15. The facts of this case are also distinguishable from the facts of instant case where absence is duly explained by the Medical Certificate.

10. Reliance is also placed on the case of Mehboob Hassan Khan v. Pakistan Steel 1980 PLC 185, wherein this Tribunal upheld dismissal of workman who remained absent. for more than ten days and whose performance was not satisfactory. I have already mentioned that the charge does not specify for which ten days the respondent had allegedly remained absent therefore subsequent proof of remaining absent for more than ten days for particular period would not entitle the management to dismiss workman on that charge.

11. Keeping in view all the facts and law discussed above it would be seen that the charge is vague as it does not specify the period for which the respondent overstayed after expiry of leave or remained absent without intimation for more than ten days. The learned Enquiry Officer has taken extraneous evidence into consideration which was not subject-matter of charge and he has based his findings on instances of absence of the respondent, which had been duly regularised and condoned by the management. For his absence from 1-5-1989 not only the respondent had not been specifically charge-sheeted but he also satisfactorily explained it by the medical certificate which has been discussed above.

12. For the aforesaid reasons uphold the order of the learned Labour Court and dismiss the appeal. M.Y.H./1840/Lb.S Appeal dismissed.