1989 PLP 702 (PLC)

Khadim Hussain for Respondent. Date of hearing: 26th March, 1989. This is an appeal against the order of the learned Presiding Officer, Sind Labour Court No.IV at Karachi, dated 20‑5‑1987.

2. The brief facts of the case appear to be that after training the respondent was employed by the appellants. After putting a little more than one month's service he proceeded on leave from 12‑9‑1985 to 15‑9‑1985. However, he did not resume duty. He was served with show‑cause notice dated 5‑11‑1985. In reply to this notice he sent Medical Certificate showing his illness. He was directed to get the medical certificate countersigned by the Medical Superintendent or Chief Medical Officer of the appellant and to resume duty. He did not comply with these orders but he was granted various types of leave up to 14‑5‑1986. On 29‑6‑1986 he was served with another show‑cause notice showing him absent without leave from 15‑5‑1986. He did not reply to the show‑cause notice nor did he participated in the domestic enquiry in which he was found guilty. However before the order of dismissal could be sent to him he reported for duty on 2‑10‑1986, when he was served with the dismissal order dated 2‑10‑1986. After serving the grievance notice the respondent filed grievance petition. The learned Labour Court also found him guilty of absence without leave but taking lenient view directed his reinstatement, without any back benefits, and imposed penalty of withholding of one increment.

3. I have heard Mr.S.M.Yaqoob, learned counsel for the appellants and Mr.Khadim Hussain, learned Advocate for the respondent.

4. The question that requires consideration is whether the respondent remained absent without leave from 15‑5‑1986 to 29‑6‑1986. Admittedly he remained absent during this period. He does not specifically state or aver anywhere that during this period he had sent an application for leave. However, he has stated that on 20‑9‑1986 he sent application for leave along with the medical certificate. The receipt of this application is not admitted by the appellants. Be that as it may the fact remains that for the period in question he did not apply for prior permission to remain absent. Even the learned Labour Court has observed in para. 9 of the judgment as under:‑ "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 as to have completely paralysed him from being unconscious of his duties and obligations towards the employer." The Labour Court has also held that the Enquiry Officer rightly found the Appellant guilty of having remained un‑authorisedly absent without leave for this period but took lenient view on the ground that the respondent was ailing as per Medical certificate and that the absence of the appellant had been treated in the dismissal order as leave without pay. I have gone through the dismissal order. The period in question has been treated as unauthorised absence without leave and without pay. It has not been treated as leave without pay. With respect to the question of illness the learned Labour Court has himself pointed out that nature of disease was not such as to have completely paralysed him from being conscious of his duties and obligations towards the employer. Furthermore, this medical certificate has not been properly proved by examining the Medical Officer.

5. Mr. S. M. Yaqoob, learned counsel for the appellants relied upon 1986 P L C 42, wherein a Division Bench of Sind High Court Karachi held that `unproved medical certificate produced by workman was not sufficient to excuse his absence'. The fact remains that after putting in a service of little more than one month the respondent admittedly remained absent for more than one year. Even if he had been sick, which fact is also not properly proved, his sickness was not such which could have incapacitated him from resuming duty or submitting himself for medical examination before the authorised Medical Officer of the appellants. Mr.Khadim Hussain, learned counsel for the respondent, submitted that the medical certificate of the doctor had already been accepted by the appellants for certain period, who granted him leave upto 14‑5‑1986, therefore, appellant was precluded from disputing the authenticity of the certificate for the period in question. There is no such estoppel against the appellant under law. When the appellant did not accept the certificate which is said to have been produced much after the period in question viz. on 8‑9‑1988, though the appellant has disputed the receipt of certificate, it was incumbent upon the respondent to have examined the doctor before the learned Labour Court to prove the medical certificate and to show that he was sick during the period in question and was, therefore, unable to resume duties. It is settled law that the party which can produce evidence but fails to produce presumption would be drawn against such a party. .

6. Next we come to the quantum of punishment. Mr.Khadim Hussain has relied upon 1987 P L C 668 wherein learned Single Judge of Lahore High Court observed as under:‑ "An examination of statutory provision of Standing Order 15(2) of Ordinance VI of 1968 demonstrates that the legislature has prescribed a whole spectrum of punishment starting with a milder version of fine and gradually escalating to the maximum penalty of dismissal which is a pregnant evidence of the intention of the framers of this piece of legislation that the employer has been vested with a discretion to choose the kind of punishment which would justify to meet the ends of justice in a given case. It needs no reminding that this discretion has to be exercised like all other discretionary powers in a reasonable and judicious manner. As a necessary corollary thereof it implies that visitation of quantum of punishment should have the inbuilt corelationship with the degree of blameworthiness of the wrongdoer."

7. Mr.S.M.Yaqoob, learned counsel for the appellants, on the other hand, relied upon 1980 P L C 981, wherein their lordships have observed:‑ "If the termination of service was not a punishment for misconduct it could not be substituted for dismissal which is so prescribed merely on the ground that subsection (5) of section 25‑A of the Industrial Relations Ordinance empowered it to pass `such orders as may be just and proper in the circumstances of the case.' This expression refers to an order passed in accordance with law as the words `just' and `proper' reflect this meaning. This being so the First Junior Labour Court could substitute a punishment which is not prescribed under the garb of the exercise of that power. Further it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of the statute; and if the employer chooses to award dismissal, the First Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment." Mr.Khadim Hussain further submitted that in the reported case misconduct alleged was of theft, therefore, the present case was distinguishable. Be that as it may, while assessing quantum of punishment, the Court or Tribunal has to sec the gravity of misconduct. As pointed out, after putting service of only a little more than one month the respondent has remained absent without prior leave for more than one year even when his disease was not such that could have prevented him from coming to Karachi and submitting himself for examination before the authorised Medical Officer of the appellants. Under the circumstances, the punishment awarded by the appellants, in my opinion, is not unfair to call for any interference by the learned Labour Court.