2005 PLP 366 (PLC)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This appeal by leave of the Court is directed against judgment, dated 19-9-1995, passed by a Division Bench of the High Court of Sindh, Karachi whereby Constitution Petition No.D-3126 of 1992, has been allowed. As a result whereof the order of Sindh Labour Appellate Tribunal (hereinafter referred to as the Tribunal), dated 25-11-1992 was set aside and order dated 12-1-1992 of the Presiding Officer, 1st Sindh Labour Court, Karachi, has been maintained.

2. Precisely stating the facts of the case are that the appellant absented himself from his duty with effect from 30-6-1990 to 12-7-1990. However, when he resumed the duty he was served with a charge-sheet calling upon him to explain his absence from duty. The appellant contested the proceedings and stated that on account of his illness he did not perform his duty. In support of his plea he placed on record a medical certificate of a private practitioner. The plea raised by him was disbelieved by the employer, as such, he was dismissed from service on 16-8-1990. After observing codal formalities, appellant approached the Sindh Labour Court under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) for redressal of his grievance, but failed to succeed. Accordingly, he preferred an appeal from the Tribunal, which was allowed vide judgment dated 25-11-1992. Relevant paragraph therefrom for convenience is reproduced hereinbelow: "(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 where it would also be free. (12) All, that need, he said about it is that it is a matter of a patience, 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.

3. Against the above judgment, the respondents, preferred Constitution petition before the Sindh High Court, which has been allowed vide impugned judgment. Leave to appeal was granted on 18-11-1996 to consider as to whether the High Court was justified in setting aside the finding of fact recorded by the Tribunal on the question of dismissal of the appellant from service, while exercising Constitutional jurisdiction keeping in view the evidence on record.

4. Mr. Muhammad Aslam Butt, learned counsel for the appellant contended that the Tribunal had taken into consideration medical evidence produced by the appellant and accepted the same to be valid for the purpose of justifying his absence from duty for a period of about 10 days. He further stated that as the matter involved factual controversy, therefore, according to him, learned Division Bench of the High Court in such a situation should not have interfered in exercise of its Constitutional jurisdiction. The Tribunal having jurisdiction decided the appeal on consideration of factual controversy.

5. On the other hand, learned counsel for the respondent stated that there were conflicting judgments of the Tribunal as well as Presiding Officer, Sindh Labour Court, therefore, the High Court took upon itself examination of the validity of the medical certificate produced by the appellant and on the basis of the same did not agree with the contention of learned counsel for the appellant that his absence was wilful. Thus, according to him, the impugned judgment being just and proper warrants no interference.

6. We have heard parties counsel and have gone through the findings recorded by the Tribunal. We are persuaded to observe that there was serious controversy between the parties in respect of admissibility or otherwise of medical certificate produced by the appellant to explain his absence from duty. Learned Tribunal, after scanning the evidence and the medical certificate itself along with the other material on record concluded that the plea raised by the appellant was valid. It is also observed that the Tribunal found that the plea of a worker/appellant cannot be disbelieved, mainly, for the reason that he was not treated in a Social Security Hospital. It is to be noted that when there is a factual controversy between the parties, the learned High Court normally abstains to exercise its jurisdiction under Article 199 of the Constitutional of the Islamic Republic of. Pakistan; and remains slow in interfering in such controversy and reluctantly exercises its Constitutional jurisdiction only in exceptional cases. In the instant case, the respondent-employer had thrown challenge to the validity of the medical certificate and later Appellate Tribunal while exercising jurisdiction according to law accepted the stand of the respondent. Thus, when an order has been passed with jurisdiction and apparently there was no misreading and non-reading of the evidence, the High Court, may have not issued the writ in favour of the respondents.

7. Thus, for the foregoing reasons, the appeal is accepted, impugned judgment, dated 19-9-1995 passed by the High Court is set aside and the judgment of the Tribunal is restored. Parties are left to bear their own costs. S.A.K./P-29/S Appeal accepted.