1988 PLP 221 (PLC)

1981 P L C 973; 1969 P L C 449; P L D 1961 SC 410 and AIR 1964 (?) 83 rel. 1981 P L C 85; 1980 P L C 969 and 1977 P L C 101 held not applicable. Khalilur Rehman for Appellant. Sher Malik for Respondents. Date of hearing: 8th November, 1987. DECISION This is an appeal filed by the appellant against an impugned order, dated 13‑12‑1986, passed by the Sind Labour Court No. II, Karachi, who had dismissed the grievance petition of the appellant under section 25‑A, I.R.O. 1969.

2. Brief facts of the case are that the appellant was a permanent workman in the respondent establishment since 1‑12‑1977 and on 22‑8‑1985, when he fell down from the bus while coming home after performing his duty in the night‑shift of 21‑8‑1985 and was taken to Jinnah Hospital, Karachi and as per his claim, on the same date he had informed the respondent establishment. The appellant further claimed that despite these facts, on 8‑9‑1985, the appellant received a charge‑sheet, dated 7‑9‑1985 alleging therein his unauthorised absence. The appellant claimed that on 12‑9‑1985, he again informed the respondent establishment, through a telegram that on account of sustaining the injuries due to an accident, he was advised six weeks rest for his treatment and as soon as he would be in a position to join the duties after recovery, he will submit the required medical certificate. The appellant claimed that, however, on 7‑10‑1985, he resumed his duty and submitted the medical certificate issued by Jinnah Hospital, Karachi, but, on 9‑10‑1985, while he was performing his duty, he was served by the respondent establishment with a letter of dismissal of his services. The appellant claimed that as against the genuine and reasonable absence from duty, his dismissal from service was nothing but a revengeful action of the respondent establishment on account of his trade union activities as he was Financial Secretary of the C.B.A. Union. Thus, being aggrieved, he submitted his grievance petition before the learned Labour Court under section 25‑A, I.R.O. 1969.

3. The respondent establishment resisted the present petition of the appellant, mainly on the ground that as they never employed more than 48 employees, therefore, the provisions of Standing Orders Ordinance were not applicable to their establishment. As to the facts of the case, the respondent establishment had admitted the fact of employment of the appellant with them, but, they had denied the claim of the accident by submitting that it was a false and concocted story. The respondent establishment further admitted to have received an intimation of the appellant to the effect on 22‑8‑1985, but, as they were not sure of the genuineness of the accident, therefore, vide letter, dated 26‑8‑1985 he was directed to produce a medical certificate from Social Security Hospital/ Dispensary and this letter was sent at the two addresses of the appellant, available with them, and both these letters were received undelivered. The respondent's further claim was that the appellant was again issued a charge‑sheet dated 9‑9‑1985 for remaining absent unauthorisedly and they were also sent to the appellant, under Registered, A/D, on the same addresses of the appellant, but, both these letters were again received undelivered'. However, the respondent establishment had clearly admitted the receipt of a telegram, dated 12‑9‑1985 from the appellant. The respondent establishment claimed that as all the intimations to the appellant regarding holding of a domestic enquiry, were received back as 'undelivered' and/or 'refused to take delivery', therefore, there was no alternative with them, but to proceed ex parte against the appellant resulting in his dismissal from service on 9‑10‑1985. The claim of the respondent establishment was that all the documents regarding the illness submitted by the appellant were bogus and they did not bear the signatures of a Doctor of Social Security Institution. The establishment further claimed that there was no mala fide against the appellant, therefore, his grievance petition under section 25‑A, I.R.O. 1969 was not maintainable and liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Two witnesses, namely Maqsood Ali and Dr. Abdul Majid were also produced before the learned Labour Court and thereafter, it has passed the impugned order, hence, the present appeal.

5. I have also heard Mr. Khalilur Rehman, the learned representative for the appellant and Mr. Sher Malik, the representative on behalf of the respondent establishment and have carefully perused the record and proceedings of the case. There is an admitted position that the correct postal addresses were available with the respondent establishment and the correspondence were being exchanged between the parties at the address of "404, 406 International Autoparts Market, Marston Road Karachi." It is also an admitted position that the appellant was allowed to resume his duties alongwith the required Medical Certificate on 7‑10‑1985 and worked therein continuously for two days i.e. upto 9‑10‑1985, when he was stopped by the respondent establishment and served upon with the dismissal letter. It is also an admitted position on record that the contention of the appellant that the provisions of Standing Orders Ordinance, 1968, were applicable to the respondent establishment have not been rebutted on oath by any witness of the respondent establishment produced before the learned Labour Court for cross‑examination on their respective affidavits‑in‑evidence. There is a clear‑cut denial by the appellant to suggestion put to him by the respondents representative during cross‑examination that "Standing Orders Ordinance" was not applicable to the establishment." Now, it was the duty of the establishment to submit their original 'Attendance Registers' as well as 'Payments Registers' through their any witness enabling the appellant to cross‑examine them on this point. There is no authentic document on record to show that the Standing Orders were not applicable to the respondent establishment. Therefore, the version of, the respondent establishment cannot be upheld. From the evidence, brought on record by the parties, I am convinced that the appellant had sustained injuries due to an accident and he had sent proper intimation thereof to the respondent establishment and his postal address .was correctly available on the record. If any communication was not being served upon the appellant, then, it was for the respondent management to get all such proceedings published in the approved newspapers and also to paste such information s on the Notice Board of the establishment. Admittedly, this has not been done by the management and it had chosen to proceed ex parte against the appellant and I very much in doubt that this has been done mainly with an idea that the management was inclined to get rid of an office‑bearer as well as a signatory to a settlement arrived at between the C.B.A. Union and the management. In view of this position, I would hold that the ex parte proceedings against the appellant were not correct, hence, set aside. As regards the issue of an accident and the treatment of the appellant in the Hospital, namely, Jinnah Hospital, Karachi. There is a false and contradictory statement of Dr. Abdul Majeed. This Doctor himself states that there is no Doctor in the name of 'Abdul Majeed' in the hospital. This version of the Doctor makes his entire statement as 'doubtful' and so, the benefit of this doubt must also go in favour of the appellant. I, therefore, hold that the contention of the appellant that he met with an accident and was under the treatment at Jinah Hospital, Karachi was correct and he was also entitled to resume his duties with a Fitness Certificate and that has been correctly done by him. Moreover, there is an admitted position that the appellant was permitted to resume his duties also with the Medical Certificate without any objection. There is also an admitted position that even after resumption of the duties by the appellant he was not served with any letter of charge‑sheet or any letter of domestic enquiry. This fact proves that the respondent establishment has no allegation of misconduct against the appellant. The authorities relied upon by the appellant's representative, Mr. Khalilur Rehman in support of his pleadings are very well applicable to the facts and circumstances of the present case. They are, 1983 P L C 1154; 1981 P L C 973; 1974 P L C 106; 1969 P L C 449; 1961 P L D 410 and AIR 1964 (?)

83. On the other hand Mr. Sher Malik the learned representative .for the respondent establishment has nothing new to add in what he has submitted before the learned Labour Court. The authorities, reported in the case of 1985 P L C 963; 1981 P L C 85; 1980 P L C 969; 1977 P L C 101;w d 1975 P L C 1 are distinguishable and are not applicable to the facts circumstances and legal aspects of the present case and so, I would hold that the provisions of Standing Orders were applicable on the employments of the respondent establishment, the dismissal of the appellant was incorrect and the impugned order is to be set aside.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The appellant is directed to be immediately re‑instated in service with 50% (fifty per cent) back benefits. A.E. /1056/Lb. S Appeal allowed.