1989 PLP 285 (PLC)

1981PLDSC225re

1. Bashir Awan for Appellant. Raes M.Mushtaq for Respondents. Date of hearing: 11th December, 1988. This appeal is directed against the order of learned Presiding Officer, Sind Labour Court No.VI at Hyderabad, dated 3-2‑1987, dismissing the grievance petition filed by the appellant. 2.The case of the appellant, in brief, is that he was employed as conductor with the respondents posted at Umerkot. On 7‑12‑1985, due to the illness of his wife, he proceeded to Karachi and sent a telegram to the respondents for leave for one month. He subsequently sent another telegram on 24‑12‑1985, but made no application for leave or extension of leave. On 16‑4‑1986, he reported for duty when he was informed that his services were terminated with effect from 19‑3‑1986. After serving grievance notice upon the respondents he filed the grievance petition before the Labour Court. The respondents resisted the petition on the ground that the appellant had remained absent without leave from 7‑12‑1985, and that in reply to his telegram, the leave was refused and such intimation was sent to him by registered post on his known address. It was further submitted that he was issued charge‑sheet on 13‑1‑1986, which was also sent to him by registered post A/D at his available address on record which was also received back un‑served. An Enquiry Officer was appointed and on receipt of his report, the services of the appellant were terminated, vide letter, dated 19‑3‑1986.

3. I have heard Mr.Bashir Awan, Advocate for the appellant and Mr.Raees M. Mushtaq, Advocate on behalf of the respondents.

4. It is an admitted position that the appellant had remained absent from duty from 7‑12‑1985 without obtaining prior permission and that he reported for duty on 16‑4‑1986. Admittedly, he had sent a 'telegram on 7‑12‑1985 for leave for one month on the ground of illness of his wife. Standing Order 8 provides for leave and also lays down procedure for applying and obtaining leave which is spelt out in sub‑clause (2) of this Order. Under this provision, the appellant had to apply for leave in advance and had to obtain a pass after the leave was granted; Admittedly, in the instant case, the appellant did not apply for leave prior to proceeding on leave and did not obtain a pass to leave the place of duty. It is contended that appellant was prevented for the reasons beyond his control from observing this procedure, as his wife was ill. The second submission of the learned Counsel for the appellant is that the charge‑sheet was not served upon him and the proper procedure of its service was not adopted by the respondents.

5. The appellant has given the address in his cross‑examination as resident of Chohre. The reply to his telegram refusing leave to him has been produced as Ext.R‑

1. It is also addressed to him on his Chohre address. The A/D receipt also shows that this letter was sent to him on Chohre address. Similarly the charge sheet, Ext.R‑10 was also sent through registered post on his Chohre address. Envelope received unserved has been produced as Ext.R‑10 and the A/D receipt as Ext.R‑

11. Both are on the Chohre address. The appellant also admitted in his cross‑examination that he did not give any address of Karachi to the respondents. Thus, the only address, available with the respondent was of Chohre on which the intimation of refusal of leave and the charge‑sheet etc., were sent, but, they returned unserved.

6. Mr.Bashir Awan, the learned Advocate for the appellant has relied upon a decision of 1st Sind Labour Court, reported in 1981 P L C 973, where it was observed that "it is held by various superior Courts that the proper course when the registered notice comes back unserved would be to publish notices in the B name of workman in a newspaper having large circulation." The learned Labour Court has not cited any case law. Mr.Races M.Mushtaq, the learned Advocate for the respondents, however, has relied upon P L D 1981 S C 225 wherein their Lordships have observed that "The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, prescribes no particular mode of service but only requires person effected to be informed by any mode." It was further observed that "Service by publication was usually resorted to where number of persons was indeterminate or their identity was not obvious or service in ordinary mode was not possible due to fraud of one of the parties. It was further observed that "person against whom action proposed to be taken impeded actual service of notice by his ovum negligence, cannot be heard to complain of not having been actually served. Workman also correspondingly being under obligation to keep management informed of his whereabouts, failure to do so amounts to impeding obligation of management to afford him opportunity of being heard and workman cannot complain of decision having been taken in his absence." In view of this observation of their Lordships of the Supreme Court, by sending charge‑sheet by registered post on the known address of the appellant, the respondents had discharged their duty cast upon them under Standing Orders Ordinance. Admittedly, the appellant was not at Chohre during the period in question and admittedly he did not supply the respondents, Karachi address. Under the circumstances, the appellant's contention that he was not properly served is not tenable.

7. The appellant has produced a Medical Certificate issued to him by some Doctor, ExbtA/7, which is dated 15‑4‑1986. This shows that the wife of appellant was under the treatment of Doctor from 8‑12‑1985 to 10‑1‑1986. This certificate does not bear the signature or thumb‑impression of the wife of the appellant who is certified to have been under the treatment of the Doctor, nor this Doctor was examined to prove this certificate. Nowhere this certificate shows that the appellant was in any way disable from attending his duty or from attending the office to know what had happened to the request of his leave or to move for further extension of his leave. It also does not show that wife was under treatment uptil 15‑4‑1986 to give the appellant any excuse for remaining absent after 10‑1‑1986. In 1986 P L C 777, it was held that "workman due to illness remained under treatment at native village and such illness though certified by medical officer not of such nature as to prevent him from undertaking journey for appearing before Medical Officer of employer, absence, in circumstances, not for reasons beyond control of workman and medical certificate would riot be of any help to claim that his absence was not wilful or intentional or that he was prevented by unforeseen circumstances".

8. It is submitted by Mr.Bashir Awan, the learned Advocate for the appellant that even if the continued absence of the appellant is considered to be misconduct, it was not of such serious nature as to call for major penalty of the removal from service. He has relied upon 1987 P L C

668. In that case the solitary ground for dismissal was remaining absent from duty for more than 10 days. The record showed that he was suffering from tuberculosis. It was, therefore, observed that "discretion of employer to choose kind of punishment which would justify to meet ends of justice in. a given case should be exercised in a reasonable and judicious manner like all other discretionery powers." In the circumstances of that case, the punishment of dismissal was considered as unreasonable. Reliance was also pleased on the case reported in 1982 P L C

128. In that case the petitioner proceeded on sanctioned leave to India, but fell ill and submitted applications for extension of leave supported by medical certificates. Under the circumstances, this Tribunal had held that he could not be considered guilty of misconduct.

9. The facts of the instant case are obviously distinguishable from the facts of the reported cases. In the instant case as pointed above, the appellant had left without obtaining prior leave. He did not care to find out whether the leave was granted to him or not. Admittedly, he did not apply for the extension of leave though admittedly in the telegram of 7‑12‑1985, he had requested only for one month's leave. He remained absent nearly for 4 months without further intimation, except telegram, dated 24‑12‑1985, wherein also admittedly he did not pray for extension of leave. The Medical Certificate produced by him does not prove any illness of the wife after 10‑1‑1986. Mere fact that his wife was ill cannot be considered as sufficient reason to prevent him from attending his D office. This conduct of the appellant was definitely a misconduct of grave nature and the punishment awarded to him cannot be considered, to be not in consonance with the gravity of the misconduct. The appeal is, therefore, dismissed. A.E./1357/Lb.S Appeal dismissed.