1993 PLP 395 (PLC)

3. Before he could resume, there was a relapse, and he remained under the treatment of the Medical Officer of the KTC, who advised him complete rest from 1‑3‑1990 to 2‑4‑1990.

4. Again before he could resume, as he states he proposed to, he received the news of his brother being mortally wounded by the dacoits in the Mufassil, who succumbed to his injuries on 6‑4‑1990. It is further alleged that on return from his village, he tried to report on duty but was not allowed to do so, and was told that his leave application happened to be still under consideration. It was as late as 10‑6‑1990 that he received the letter of dismissal dated 10‑5‑1990.

5. Appraised of the situation, the respondent had sent the grievance notice on 7‑8‑1990 and not receiving a Reply for the same, filed the petition before the Labour Court.

6. The appellants in their Written Reply maintained that the respondent was not heard of since 22‑2‑1990. He was served with a show‑cause notice and a charge‑sheet, but failed to pay any heed to the same; with the result that the domestic enquiry against him was held ex parte. It was admitted, however, that the grievance notice was received and was not replied to.

7. The petitioner (respondent herein) was his own witness and also examined Ghulam Rabbani, Assistant Yard Master. Sardar Asad Qadir appeared as a witness on behalf of the respondents (Appellants herein).

8. The petitioner had affirmed during' the proceedings that he had sent the Medical Certificates from the Doctors who had treated him, including the Medical Officer, KTC through his immediate boss namely Ghulam Rabbani who lived 500 paces away from him. He has also produced a photostat copy of the Death Certificate in regard to his cousin by the name of, Muhammad. Ghulam Rabbani fully supported him and had gone on to add that on receiving the Medical Certificates from the respondent he had made requisite entries in the Register and later passed on to Mumtaz, the Yard Master. He also lent support to the murder of the cousin of the respondent (herein).

9. Sardar Asad Qadir, who was the District Manager in the Karachi Road Transport, states that the application and the Certificates had not been received by the appellants. But he cannot be relied upon, because Ghulam Rabbani had stated in clear terms that he had made the entries of these papers in the Register, and it was certainly open to the appellants to produce the same and falsify the version of Ghulam Rabbani. That has not been done. Ghulam Rabbani is the immediate boss of the respondent. There seems to be no apparent reason to dis‑trust his testimony. .

10. It has also been stated by Ghulam Rabbani that the respondent had 15 'days as casual leave, 15 days Medical Leave and one month's Earned Leave outstanding to his credit.

11. I agree that merely sending an application for leave will not raise any presumption that the same will be sanctioned. But in the instant case the respondent was ill which was duly backed up by the despatch of Medical Certificate, and the grant of leave will be the normal course. The leave sought was for circumstances altogether beyond his control. Soon after the convalescence period there was the news of the murder of his cousin with fire arms and knowing the customs of our society specially in the mofussil, it cannot be said that he should have waited for the sanction.

12. It was also contended that the respondent had been precluded from defending himself at the domestic enquiry. It is true that the appellant had sent the charge‑sheet and the information about the holding of the enquiry with the address available with the Department, but one was received by some body by the name of `Seema'. The respondent had stated that there was nobody in his family bearing that name. Admittedly there was no publication of the notice for a domestic enquiry in the Press. Surprisingly, the dismissal order, dated 10‑5‑1990 was to take effect from 22‑2‑1990, the day when his absence started.

13. Ch. Latif Saghar, learned counsel for the respondent urged that there could be no order of dismissal with retrospective effect, as these powers were confined only to the legislature or the law‑making bodies. In that context he had also referred to the case of Shaikh Nazeer Ahmed v. District Education Officer 1983 PLC 116.

14. He had also submitted that the non‑production of the Enquiry Officer, would lead to the drawing of an adverse inference against the appellants. Reference was made to the case, Souvenier Tobacco Co. Ltd. v. Sindh Labour Appellate Tribunal and others and some other case also. However, as no allegation had been preferred against the Enquiry Officer, and consequently there was no question of any allegation being rebutted by him personally, nothing will turn on the same. However, looking to the testimony of Ghulam Rabbani, I do not find any occasion to differ from the finding of the Labour Court. No purpose will be served in the circumstances of the case to order any fresh enquiry.

15. In the result I will uphold the impugned order and dismiss the appeal. H.B.T./2121/Lb.S Appeal dismissed.