1989 PLP 727 (PLC)

Abdul Lateef Saghar for Appellant. S.M.Yaqoob for Respondent. Date of hearing: 19th March, 1989. This appeal is against the order of the learned Presiding Officer, Sind Labour Court No-IV, Karachi, dated 21-11-1988, whereby grievance petition of the appellant was rejected.

2. The brief facts of the case are that the appellant was admittedly a workman employed by the respondent. He obtained two days casual Leave for 9th and 10th of August, 1987 which he suffixed with Eid Holidays. It is alleged by him that due to illness of his mother, he had to go to Sargodan where he had fallen in the bathroom and suffered injuries, therefore, he could not resume duty in time. He sent application for leave which was admittedly received on 13-8-1987. The respondent sent him telegram on 17-8-1987 directing the appellant to resume duty within seven days and indefinite leave could not be granted. He, however, resumed duty on 30-8-1987 and produced Medical Certificate from Sargodan (Jhelum) dated 11-8-1987 and also fitness certificate of 29-8-1987. Both the certificate were countersigned by the Chief Medical Officer of the respondent. The appellant was charge-sheeted on 24-8-1987 for remaining absent without leave for more than ten days and for leaving station without leave. The Enquiry Officer found him guilty of both the charges and subsequently he was dismissed on 24-12-1987. The appellant filed an appeal which was dismissed vide order dated 14-2-1988. He, thereafter, served grievance notice dated 13-3-1988 and filed grievance application on 6-4-1988. The respondent resisted application on the ground that grievance application was time-barred and the charges against the appellant were duly proved in the domestic enquiry and he was legally dismissed.

3. I have heard MrAbdul Lateef Saghar, Advocate for the appellant and Mr.S.M.Yaqoob, counsel for the respondent.

4. The learned Presiding Officer has treated the appeal as grievance notice and has counted period of limitation from that day. He has shifted the burden of proof upon the appellant that there was provision of appeal and because he failed to prove that he had right of appeal, has drawn presumption against him. The Rules and regulations are always with the management. The very fact that they passed order on appeal would show that they had either provision with regard to appeal or at least they treated application of appellant as an appeal and rejected it as such. They have also not produced any rules or evidence to show that there was no provision of appeal with regard to dismissal order passed against the workman. The respondent is a very big Organization and it is unthinkable that they would not have any service rules, though such rules may not be Statutory Rules. The respondents have nowhere stated that there were no Service Rules governing their workmen nor have they produced the rules to show that there was no provision of appeal. The party who is in a position to produce evidence and fails to produce the same, inference would have to be drawn against such party. It is settled law, that the cause of action, when appeal is preferred and decided, arises from the date of decision of appeal. Under the circumstances, I hold that the grievance notice as well as application was within time and not barred by limitation.

5. With regard to charge of leaving station without permission it appears that no specific permission was obtained by the appellant to leave the station. It may be noted that the leave obtained by him was suffix to Eid Holidays. It is only natural that the workman would like to spend Eid with his relatives. No rules have been produced to show that obtaining the permission to leave station under such circumstances was obligatory. Even if he is held to have violated any such rule, at the most it would be an omission as described in Standing Order 15(ii)(a) and for that commission punishment that could be awarded is not dismissal.

6. The only point that requires consideration is whether he remained absent for more than ten days. Admittedly he remained absent for more than ten days. I have already narrated circumstances of the case. In the application for leave he had shown reason of his absence as injuries whereas the medical certificate produced by him shows that he was suffering from sciatica pain. He states to have received injury due to fall in the bathroom. It is not improbable that he might have developed this pain due to the said fall. However, this certificate is countersigned by the Chief Medical Officer of the respondent. The appellant was admittedly referred to the Medical Board and report of the Medical Board shows that he had some scar below the eyes which in a way corroborates his plea of injury. With regard to sciatica pain after the pain is relieved there could be no sign of such pain which could he verified by any doctor or Medical Board at the time when there was no pain. If the Medical Board did not find any sign of sciatica pain it would not necessarily render the certificate to be false. The Medical Board has merely relied upon history of the case to arrive at the conclusion that there was no sciatica pain.

7. The telegram dated 17-8-1987 shows that the respondent admittedly allowed seven days time to the appellant to resume duty. In other words leave would be impliedly granted up to 24th, and therefore he was charge-sheeted on 24th August, 1987. No order has been produced by the respondent to show that leave was refused except this telegram which did not in clear words indicate that extension of leave from 10th was refused. The telegram impliedly shows that he had been granted leave up to 24th but he could not be granted indefinite leave. I Under Standing Order 8(ii) it is obligatory for the employer when he refuses leave to give the reason of refusal in writing, and enter the same in register. It is submitted by Mr.S.M.Yaqoob that the provision is applicable only when leave is refused in the first instance but no reason for refusal was necessary if the extension of leave was asked for. He contends that last part of sub-clause (ii) does C not make it mandatory for recording reasons. I am unable to agree with this contention. The purpose of providing for recording of reasons while refusing leave to workman is that the workman should know reason why he has been refused the leave. This purpose and spirit of rule would be defeated if it is held that if the leave is refused initially reason has to be recorded but recording of reason would not be necessary if the workman after proceeding on leave applies for further leave. The relevant portion of this sub-rule reads as under:- "If the leave is refused or postponed, the fact of such postponement or refusal and the reasons therefore shall be recorded in writing in a register to be maintained for the purpose, and if the workman so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman if his address is available, and if such reply is likely to reach him before the expiry of the leave originally granted to him."

8. It would be seen that in the last sentence it is only provided that grant or refusal would be communicated to the workman if his address is available and it was likely to reach him before the expiry of leave originally granted to him. In the instant case intimation was sent to the appellant through the telegram. As pointed above the telegram did not specifically state that extension of leave from 10th was refused but it only informed the appellant that leave could not be granted indefinitely and he was asked to resume duty within seven days viz. on 24th. Even under this order of the respondent communicated to the appellant, through telegram he could remain absent up to 24th. Thus the leave would be impliedly deemed to have been granted to him up to 24th. He was charge-sheeted on 24th August, 1987. In the absence of any specific order refusing him leave from 10th to 24th he could not be said to have remained absent without leave. Consequently the charge against this that he remained absent for more than ten days on 24th August, 1987 would not stand proved.

9. I, therefore, allow this appeal, set aside the impugned order of the learned Labour Court as well as order of dismissal but under the circumstances of the case the appellant is not allowed back benefits. A.E./1426/Lb.S Appeal allowed.