1982 PLP 676 (PLC(CS))

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

S. O. 15 (3)‑Absence without leave‑Workman proceeding on sanctioned leave‑Extension in leave sanctioned on basis of medical certificate‑Not attending on expiry of extended leave‑Charged for absence‑Producing certificate for entire period involved frock same Doctor from whom previous certificates produced‑Work man found guilty of charge without giving reasons for discarding or disbelieving subsequent certificate‑Dismissal order, in cir cumstances, held, rightly set aside by Labour Couch. Makhdoom Ali for Appellants. Saleem Raza for Respondent. Date of hearing: 21st March, 1982. This appeal is directed against the decision of the learned Vth Labour Court, given on 4th January, 1982, allowing the grievance petition filed by the respondent workman against his dismissal from service and direc ting the appellant‑Company to re‑instate him in. service with full back benefits. The decision of the learned Labour Court is based on its finding that the alleged misconduct of the respondent‑workman was not brought to his, notice within 1 month of the commission thereof, as required by clause (4) of Standing Order 15. 2. The admitted facts of the case are that the respondent applied for and was sanctioned 60 days leave with effect from 7th April, 1979, .for going to his native village, Tang Chapri, District Kohat. The respon dent from his native village applied for extension of leave from time to time and‑as his applications were supported by medical certificates, he was granted extension of leave uptil 21st July, 1979. It is the claim of the appellant‑Company that thereafter no communication from the respon dent was received and accordingly the charge‑sheet, dated 2nd August, 1979, was sent to him at his home address as given by him. The charge sheet was sent by registered post, A/D. The acknowledgement receipt was duly returned to the appellant‑Company but the admitted position is that the signature of the said receipt is not of the respondent. Acting on the assumption that the charge sheet must have been received by the res pondent, a letter, dated 19th August, 1979, was despatched by the appellant‑Company to the respondent at the very same address to which the charge‑sheet was sent to him. The cover containing this letter was, however, returned undelivered to the appellant‑Company with the endorse ment, dated 15th September, 1979, of the postal authorities that the addressee had left for Karachi. In the meanwhile, an ex parte enquiry was held against the respondent on 28th August, 1919, and on the basis of the report of the Enquiry Officer, a second show‑cause notice was issued to him. The respondent challenged the proceedings being taken against him through a grievance notice and in consequence of the said notice, the ex parte enquiry against him was set aside by the Management and a fresh enquiry was ordered. This fresh enquiry was held on 24th December, 1979, by Sharafatullah Khan. Manager Administration, Karachi Shipyard Engineering Works Ltd. This Enquiry Officer also found the miscon duct of the respondent as stated in the charge‑sheet, dated 2nd August, 1979, as established, and on the basis of his report, the respondent was served with the dismissal orders, dated 12th February, 1980. The res pondent challenged the said dismissal orders through a grievance petition filed before the learned Labour Court, which has allowed his grievance petition and directed his re‑instatement in service, as already indicated. 3. The sole ground on which Mr. Makhdoom Ali the learned counsel for the appellant‑Company, has sought to assail the ‑impugned decision of the learned Labour Court is that its finding that the charge‑sheet, dated 2nd August, 1979, was not served on the respondent is erroneous. The learned counsel submitted that the charge‑sheet was sent to the respondent by registered post, A/D, at his home address, which he had himself given. He further contended that the cover containing the charge sheet was actually delivered. at the said address as established from the return of the A/D receipt to the appellant‑Company. He argued that merely because the A/D slip was not signed by the respondent himself does not mean that the respondent had' not received the charge‑sheet nor does it negate the proposition that he is deemed to have received the same. Section 27 of the General Clauses Act provides that if a letter is placed in a cover, arid the said cover is properly stamped and addressed to the person for whom it is meant, and there is evidence of the posting of such cover, it is to be presumed that the cover must have reached the addressee in the normal course of postal business. The Supreme Court, in the case of Dawood Cotton Mills Ltd. v. Guftar Shah and others (P L D 1981 S C 225), while holding service of notice on the workman, which was sent to him at his home address by post, as good and complying with the, duty cast upon the employer under clause (4) of Standing Older ‑ 15, observed as follows:‑ "This Ordinance imposes rights and obligations Inter so and, therefore for their enforcement the registered addresses were taken. If the workman is available in the mill's premises, there would be no difficulty in complying with the duty cast by Standing Order No. 15 (4); but if he is not available then it must be understood that the parties had contemplated to communicate according to the ordinary usage of mankind, that is by post. In the present case, as is obvious from the narration of facts, registered notices were sent to respondent No. 1 at the addresses given by him and those posted at his village address were accepted. Further, the notices were affixed on the notice board, outside the mill's premises, on each occasion. The further fact is that respondent No. 1 did not intimate about his present whereabouts so as to render the service of notice effective, if he was not available at his given address. There was thus a compliance with the statutory duty to inform respondent No. 1 in writing of the impending proceedings: but as .to whether this duty also implied that the notices should actually be served and received, there is no such invariable rule. An instance of this kind would be where the workman himself impedes the actual service of notice either by failing to inform his changed address or by deliberately obstructing service." 4. I am, therefore, satisfied that the appellant. Company had com plied with the requirements of clause (4) of Standing Order 15 and the respondent is to be deemed to have been served with the charge‑sheet,) dated 2nd August, 1979. This, however, is not the end of the matter, for still it remains to be examined whether the misconduct alleged against) the respondent had been duly established. The charge against the respondent was that he had unauthorisedly absented himself from his duties with effect from 22nd July, 1979, upto 2nd August, 1979, the date on which the charge‑sheet was issued. However, it appears that the respondent had submitted to the appellant‑Company a certificate from Dr. Abdur Rehman, Incharge, Civil Hospital, Hangu, advising the res pondent rest for 15 days with effect from 22nd July, 1979, as he was found suffering from backache. This certificate, which is dated 22nd July, 1979, was received by the appellant‑Company on 24th July, 1979, as appears from the date stamped by the appellant‑Company thereon. This is not the only certificate which was issued to the respondent by Dr. Abdur Rehman of Hangu Hospital. It was on the basis of 2 pre vious certificates issued by him, one dated 6th June, 1979, and the other dated 6th July, 1979, that the respondent bad been granted leave by the appellant‑Company upto 21st July, 1979. There was thus no reason to disbelieve this certificate of Dr. Abdur Rehman. It appears that this certificate was neither considered by the Enquiry Officer nor by the management. The learned Labour Court also appears to have ignored this certificate. This certificate, if it is relied upon, completely demoli shes the appellant‑Company's charges against the respondent. As already indicated, no reason has been shown for discarding or disbelieving thi1e certificate. I am, therefore, of the view that the charge against the respondent has not been established. 5. For the reasons stated by me above, I would uphold the decision of the learned Labour Court and would dismiss the appeal, but with the direction that for the period from 7th May, 1979 upto 9th September, 1979, when the respondent reported back for duty and submitted his reply to the second show‑cause notice, dated 1st September, 1979, he would not be entitled to any wages, as no leave for this period was due to him.