1996 PLP 62 (PLC)

GHULAM HAIDER LAKHO, J: ‑‑Respondent No. 3. was employee of petitioner M/s. Pakistan Dairy Products (Pvt.) Ltd. working as a Production Helper. He did not report to the office for his duties from 30th of June up to 12th July, 1990. During his absence letter was issued to him calling for his explanation. When he went to attend his office on 14th July, 1990, he submitted an application for the grant of leave from 30th June up to 12th July for which period he remained absent. He was suspended and charge‑sheet was given to him, and enquiry was conducted. On receipt of enquiry report, respondent No.3 was dismissed from service on 16‑8‑1990.

2. Respondent No. 3 sent grievance notice and followed it up by the presentation of a petition before Labour Court which was dismissed vide order dated 12‑1‑1992. Respondent No. 3 filed an appeal before Labour Appellate Tribunal where order passed by 1st Sindh Labour Court was reversed and the appeal of respondent was allowed by order dated 25‑11‑1992 which is impugned here.

3. Mr. Khurshid Anwar Shaikh, learned counsel for the petitioner, contended that respondent No. 3 remained absent from his duty from 30th June to 12th July, 1990 (13 days) without any intimation and was in the habit of remaining absent without leave. Respondent No.3 appeared for duty on 14th July with an application for leave alongwith medical certificate of fitness which was issued by a private practitioner which was of a dubious nature. Respondent was advised/directed to submit medical certificate from Social Security Doctor which he failed to produce. Respondent was charge‑sheeted and after considering his explanation and holding proper enquiry he was dismissed from service. Action taken against the respondent No. 3 is in accordance with law. The learned counsel further contended that an employee who remains absent for more than 10 days and fails to obtain leave during his absence onus of proof lies on such employee to show special circumstances which prevented him from obtaining leave. No such circumstances were shown or proved by respondent No.

3. He was given an opportunity to explain and of being heard.

4. Respondent No. 3, as per medical certificate issued by Dr. Fayaz Aijazul Haque, was suffering from an infection in his throat for which he was not hospitalised but he was visiting doctor to take medicine. He could have obtained medical certificate and post it alongwith application for leave, which he did not care to do.

5. Learned counsel for the petitioner has referred to Standing Order No. 15‑E (iii) (e) of Industrial Relations Ordinance and has cited the cases of Tasu Khan v. Messrs Welcome Pakistan Ltd. and 2 others (1986 PLC 352), Muhammad Shafi v. Messers Hidayatullah Textile Mills Ltd. (1987 PLC 108), Siddik Muhammad Shah v. Mt. Saran and others (AIR 1930 Privy Council 57 (1), Factory Manager General Manager, Okara Textile (Pvt.) Ltd., Okara v. Muhammad Yasin (1988 PLC 794), Government of West Pakistan (Now Punjab v. Haji Muhammad (PLD 1976 SC 469) and Dawood Cotton Mills Ltd. v. Guftar Shah and another (PLD 1981 SC 225). The version of respondent No. 3 that he had informed about his illness to Labour Officer on telephone on 7th June, 1990, was not proved in any way.

6. Mr. Nazar Akbar, learned counsel for respondent No. 3 has contended that respondent No. 3 did not attend his duty with effect from 30th June to 12th July, 1990, because of his illness and he remained under treatment of doctor Fayaz Aijazul Haque who issued such Certificate and was also examined in the Court of respondent No.

2. He supported the version of the respondent about his illness. Information was given to Labour Officer on telephone regarding his illness on 7‑6‑1990 who advised him to bring medical certificate at the time of his joining duty, as such on 14th July, 1990, he went to join his duty and submitted application for leave alongwith medical certificate, but the same was not accepted and the respondent was required to produce medical certificate from a doctor of Social Security Hospital and the respondent was not allowed to resume duty and was ordered to get out from office. 7‑ Learned counsel has contended that it is faith and confidence of a person to have himself examined and have treatment from a doctor of his confidence. One cannot be forced to get treatment from a particular doctor. The learned counsel contended that no proper enquiry was conducted and no opportunity was given to the respondent and the Enquiry Officer acted partially in favour of the petitioner.

8. Mr. Suleman Habibullah, learned counsel for respondent No. 1 has contended that Standing Order No.12 (4) has not been complied with. Specific period of absence was not given in show‑cause notice. It is just a letter, not a show‑cause notice. The enquiry report is incomplete and without proceedings. The learned counsel has supported the order of Appellate Tribunal.

9. We have heard the learned counsel for the parties and have gone through the record and the case law cited by them. Admittedly, respondent No‑3 remained absent from his duty for more than 10 days for which he submitted medical certificate from a private practitioner which was found dubious and was not relied upon. Even in the Certificate produced by respondent No. 3 he was shown as suffering from infection in throat, and he was treated as an out‑door patient. The respondent was not suffering from such a disease that he was unable to move and could not inform/intimate or go personally to obtain leave. He did not even send an application for leave through some one or through post but remained absent from his duty without any leave, tatting it to be granted and appeared after 13 days alongwith medical certificate. The contention of respondent No. 3 that one cannot be forced to get the treatment from a particular doctor or produce certificate from him is very much correct, but there are dispensaries/hospitals of Industrial concern and the institution to which they are attached, from where one can have better treatment and Certificate to the satisfaction of employer. Any how the respondent was .not suffering from such disease that he was unable to move which shows that his absence was wilful and deliberate. An employee who remains absent for more than 10 days and fails to obtain leave during his absence onus of proof lies on such employee to show special circumstances which prevented him from obtaining leave. Respondent No. 3 remained absent without any leave and there were no such special circumstances, he had (as per medical certificate) infection in throat and was treated as out‑ door patient and admittedly getting medicines daily by attending clinic of doctor who issued medical certificate, then who prevented him to appear at the place of his job to apply for and obtain leave. All these facts go against respondent No. 3.

10. In view of the above circumstances, we are of the view that respondent No. 3 remained absent from his duty without any leave/intimation for more than 10 days, his services were liable to be terminated and same was done after observing all formalities and giving opportunity to respondent No. 3 to explain and of being heard. Order of 1st Sindh Labour Court was proper and there was no justification for reversing the same.

11. For the foregoing reasons, we set aside the order of Labour Appellate Tribunal (Sindh) and allow this petition with the result that the petition filed by respondent No. 3 before 1st Sindh Labour Court stands dismissed. A.A./P‑322/K Petition accepted.