1991 PLP 528 (PLC(CS))

Ch. Rasheed Ahmad for Respondent. Date of hearing: 2nd October, 1989 This is an appeal against the order, dated 11-12-1985, passed by the Sindh Labour Court No. V at Karachi, whereby the grievance petition of the appellant was dismissed.

2. The appellant admittedly was appointed by the respondents as Kababi, but, remained absent from his duties from 11-11-1980 to 30-11-1981. He was served with a show-cause notice on 30-11-1981 and after domestic enquiry, he was dismissed from service on 14-3-1982. Being aggrieved by this order, the appellant filed grievance petition before the learned Labour Court, which was dismissed vide impugned order.

3. I have heard Mr. S.P. Lodhi for the appellant and Ch. Rasheed Ahmad, the learned Advocate for the respondents.

4. The appellant contends that he met with an accident on 10-11-1980 at about 1.00 a.m., when he' was returning home from his duties alongwith one Sultan on the Scooter driven by Sultan. In the accident he sustained serious fracture of right thigh. He was admitted in Abbasi Shaheed Hospital on the same date where on the next day, Mr. Fahmeed, Manager of the respondents came to visit him and took away the Hospital Medical Report and all the papers etc. After 2 or 3 days, he left the hospital as he could not bear the expenses demanded by the Doctor and the Staff. However, again he got himself admitted in Civil Hospital on 14-4-1981, where he was operated upon and was discharged on 13-5 1981, but, he was still kept under the treatment. On 7-12-1981, he sent a notice to the respondents requesting for an advance of Rs.1,000 but, instead he received a charge-sheet on 20-12-1981 which bore the date as 30-11-1981.

5. The fact that the appellant had met with an accident is not disputed. Mr. Fahmeed who is alleged to have visited the appellant on the next day had not been examined to deny the averments of the appellant. However, the fact remains that no application for leave was moved by the appellant as required under Standing Order

8. There is nothing on record to show that any leave was granted to him. Therefore, he would be deemed to have remained absent without leave during this period, which is a misconduct under Standing Order 15.

6. However, it is not denied that in accident, appellant's right thigh was fractured. He has produced Medical Certificate of Dr. Colonel Saeed, dated 17-12-1981 which shows that the appellant had met with fracture of femur and he could resume duties after the leg fracture improved. The Doctor was of the opinion that there was 60% disability. Admittedly on the basis of this Medical Certificate, the respondents moved case of the appellant and he was awarded compensation under the Group Insurance Scheme from the State Life Insurance Corporation.

7. The respondent had examined no witness in support of the allegation but it is contended by Ch. Rasheed Ahmad that the fact that the appellant remained absent without leave is admitted by him in his cross-examination. As pointed above, the evidence on record does not disclose that any leave application was moved by him or was granted by the respondents. It is also not disputed that the appellant had met with an accident. The Medical Certificate, dated 17-12-1981 which appears to have been accepted by the respondents for the purpose of getting awarded compensation from State Life Insurance Corporation, shows that even upto that date, he was suffering from 60% disability. Under the circumstances though the appellant apparently appears to be guilty of misconduct for remaining absent without leave for more than 10 days, as he did not move any application for leave though he was discharged from hospital on 13-5-1981, but, looking to the circumstances of the case, this misconduct does not deserve the dismissal. His order of dismissal is converted into the order of retirement. The appellant is to be paid all the salaries and other dues admissible to him upto the date of dismissal 14-3-1982, and he is also to be paid all the retirement benefits and other dues admissible to him under the Rules. With this modification, this appeal is disposed of in the above terms. The order to be implemented within one month. M.Y.H./1553/Lb.S Appeal partly allowed.