1993 PLP 378 (PLC)

This appeal from the order of the Labour Court dismissing the grievance application of the petitioner under section 25‑A of the IRO arises in the following circumstances:‑ The petitioner was working as a Production Helper with the respondent from 1‑2‑1989. He did not report to the office from the 30th of June upto the 12th of July, 1990. During his absence a letter was issued to the petitioner calling for his explanation. When he Went to attend his office on the 14th of July he submitted an application for the grant of leave from the 30th of June upto the 12th of July; ‑‑‑‑the ‑13th of July being Friday was a holiday‑‑‑‑. He was suspended and a charge‑sheet was given to him. On the receipt of the enquiry report, the petitioner was dismissed from service on 16‑8‑1990.

2. The petitioner had sent a grievance notice and followed in by the presentation of a petition before the Labour Court.

3. In the Written Reply, it was alleged that the petitioner was not only absent without leave, but later on, when the application was submitted alongwith the Medical Certificate, it was found to be dubious. It was also said that he was in the habit of staying back at home without proper application. Further the doctor who had issued the two certificates, was running his clinic under two different registration numbers which by itself was a very unusual phenomenon. It went on to say that he had been asked to bring a certificate from the Social Security Institution regarding his ailment, but he had failed to do the same. The other allegations came to be denied.

4. The petitioner apart from himself, examined Maqsood Khan and Dr. Fayyaz Aijazul Haq, while Jawaid Hassan, Factory Manager, Haroon Bhasania Marketing Manager, Salam and Ahmed Ali appeared on behalf of the respondent.

5. The learned Presiding Officer found that an employee could not grant leave to himself and stay back at his home. As in the instant case absence had lasted beyond ten days, this amounted to misconduct and the dismissal that followed was absolutely in order. He therefore dismissed the petition, resulting in this appeal.

6. The first thing which needs mention is, that the Enquiry Officer never chose to record the statement of the petitioner or of any other witness examined, verbatim and therefore it can never be said with servitude, as to what had been said by whom. There is no indication either as to how many persons had been examined by him. He, however, says that he had been told by the petitioner that he had neither been given any injection nor his blood was tested, and also pointed out some discrepancies in the two medical certificates.

7. Then came some very pungent comments about the ailment of the petitioner, whom he charged him with malingering. However, he remained totally reticent about the misconduct having been made out against him or that any action to be taken by the respondent.

8. Jawaid Hassan mentions that when the appellant had appeared before him on the 14th of July he had asked him to produce a certificate from the Social Security Institution, and from that very day he had remained under suspension upto the 20th of August when he came to be dismissed.

9. It was contended by Mr. Khursheed Anwar learned counsel for the respondent that a workman could not be absent from his place of duty unless leave had been sanctioned to‑him. In principle there can be no quarrel with this contention. It cannot be canvassed that an employee can proceed on an excursion or an extended week‑end trip, or accompany a marriage party going out of station and things like that without due leave. He has to be amenable to discipline. But it will be a different story if he is unwell or some other member of the family is in distress and needs urgent attention. There is no notice of ailment nor can one anticipate, so that he is armed with the sanctioned leave when the occasion arises. There can also be cases where there is nobody in the employee's family who can go to the Management with an application for leave. The extended families are on the wane, but even if there is somebody in the house working or schooling, he will not be free to do this errand on behalf of the employee.

10. Mr. Khursheed Anwar has however cited 2 cases namely Taus Khan v. M/s. Welcome Pak. Limited and others iy86 PLC 352 and Muhammad Shafi v. M/s. Hidayatullah Textile Mills 1987 PLC

10. In the former case, leave had been granted but not extended. The Medical Certificate was accepted but had been referred to the Company's doctor. In the latter case no Medical Certificate was communicated during the absence and when it came, the Certificate did not bear out the plea of ailment.

11. In the instant case the Certificate had been sent but the insistence of the management was about a Medical Certificate from the Social Security Institution. It remained untold, as to what was the justification for the demand, surprise was expressed as to why he should not have got the treatment from the Social Security Institution where it would also be free.

12. All that need he said about it is that it is a matter of a patient's confidence, and there are no rules to the effect that the treatment should be from the Social Security Institution and not from any private doctor. That was the view taken in Factory Manager, General Manager, Okara Textile Mills v. Muhammad Yaseen 1988 PLC 794.

13. I am clearly of the opinion that it cannot be said that the absence was wilful. It is also clear that the approach of the management was revengeful and sadistic as borne out by the suspension of the appellant for over a month at a stretch, which had no justification in law.

14. I will therefore set aside the impugned order and allow the appeal. He will be reinstated within a month of this order and will be entitled to full back benefits from the day of his dismissal till the day he is reinstated in service. H.B.T./2130/Lb. S Appeal allowed.