1991 PLP 676 (PLC(CS))

‑‑‑‑S. 25‑A‑‑‑Back benefits‑‑‑Worker absented himself from duty for over a decade and nothing existed on record to show that he was prevented from attending by any illness‑‑‑Worker produced a fitness certificate from a Homoeopathic doctor who was not examined‑‑‑Mere production of such certificate without examining Doctor, held, was not sufficient evidence of worker's illness‑‑‑Only 30% back benefits were awarded to worker. Ch. Rasheed Ahmed for Appellant. Muhammad Ahmed for Respondent. Date of hearing: 9th September, 1990. This is an appeal against the order, dated 13th December, 1988 passed by the learned Presiding Officer, Third Sindh Labour Court at Karachi, whereby the respondent was ordered to be reinstated in service with full back benefits.

2. The brief facts of the case appear to be that the respondent was admittedly a workman employed by the appellants as Wireman since 23‑5‑1958. He proceeded on sick leave on 17‑11‑1975 and obtained G 92 for appearance and treatment before the Railway Doctor. Admittedly he did not appear before the doctor but allegedly got his treatment from Homeopathic Dr. Sattar who certified him as fit for duty. He reported for duty on 14‑6‑1986, but he was not allowed to resume duty. After serving grievance notice upon the appellants, the respondent filed grievance petition before the Labour Court which was resisted by the appellants on the ground that the respondent stood removed from service under the Railway Rules.

3. I have heard Ch. Rasheed Ahmed, learned Advocate for the appellants and Mr. Muhammad Ahmad, learned counsel for the respondent and have also gone through the record and proceedings of the case.

4. It is not disputed that the respondent remained absent from service from 17‑11‑1975 till 14‑6‑1986 when he reported for duty. The contention of the respondent is that he was seriously ill. The contention of the appellants is that though the respondent was given G‑92 but he did not appear before the Railway Doctor, nor did he apply for leave during all these years. Dr. Sattar, who had allegedly treated respondent has not been examined before the learned Labour Court. Medical certificate issued by the Dr. Sattar also does not show that he was not fit to resume his duties for all these years. Anyhow without examining the doctor, no opinion could be formed about the nature of illness, the respondent was suffering from and whether he was unable to attend the office for a decade.

5. However, no order for removal of respondent from service appears to have been passed by the appellants nor was it communicated to the respondent. Ch. Rasheed Ahmed has relied upon the Rule 2014 of the Establishment Code of Pakistan Railways, under which if the railway servant remains absent from duty for five years he ceases to be in railway employ. Ch. Rasheed Ahmed contends, that removal was automatic and no order was necessary. I am afraid, I cannot agree with him. Even if the removal from service is automatic still the appellant has to pass such an order in writing. Furthermore, it is established principle of natural justice that before removal, the employee has to be given an opportunity to show cause against his removal. Apparently neither any order has been passed nor the rules of natural justice have been complied with. As such, the order of the learned Labour Court for reinstatement of the respondent is perfectly legal and does not require any interference.

6. However, the question of back benefits requires sane consideration. The respondent has admittedly absented himself for such a long period. There is nothing on record to show that he was prevented from attending by any illness. Mere production of certificate without examining the doctor would not be sufficient evidence. Even under the rules he could not get sick leave, on full pay for ten years. In the circumstances of the case, in my opinion only 30% back benefit be awarded to the respondent. With this modification the appeal is dismissed. M.Y.H./1748/Lb. S Appeal dismissed