1989PLC118 (PLP)

(b) Industrial dispute‑‑ ‑‑‑ Dismissal for misconduct‑‑Charge of absence without leave‑‑Absence alleged due to illness‑‑Opportunity to produce medical certificate not afforded in domestic enquiry‑‑Dismissal from service, in circumstances, held, amounted to condemnation of a person unheard‑‑Reinstatement awarded by Labour Court upheld by Appellate Tribunal‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3). M. Shamshir Iqbal Chughtai for Appellant. Ch. Khalid Farooq for Respondent. Date of hearing: 2nd November, 1987. The appeal captioned above challenges the decision dated 28‑9‑1987 recorded by learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur whereby the grievance petition of the appellant for his reinstatement in service was accepted and he was directed to be reinstated in service with back benefits.

2. The allegation for which the respondent was dismissed from service was absence from 1‑7‑1985 to 26‑7‑1985. The reason given by the learned lower Court for holding that the respondent must have applied for leave is that he had 19 years service. This ground is not sufficient for presuming that application for leave was sent by the respondent. No medical certificate was produced during the enquiry although in his statement the respondent said before the Enquiry Officer that he had sent the certificate. No person was examined through whom the said medical certificate may have been sent nor any postal receipt was produced if the certificate had been sent by registered post. However, the enquiry proceedings are not satisfactory. It appears that no opportunity of production of defence was given. In the end of the statement of the respondent a line is added that he did not want to produce any evidence in his defence. This line appears to have been added afterwards. Space between the other lines is spacious but the space left between the last line and the next above is comparatively small and even to a naked eye, it is clear that this line was added afterwards. Learned counsel for the appellant has shown me the original statement and from there also the fact mentioned above is clear. Since the respondent had put his signatures first on the close of his statement, therefore, it was not possible to add a separate sheet for recording that he did not want to produce any defence evidence and the only alternative was to add the line on the same page. If opportunity of defence had been afforded, the respondent may have produced another certificate covering the period from 17‑7‑1985 to 26‑7‑1985. The respondent, therefore, was condemned unheard. The order of the learned lower Court, therefore, is to be upheld although on different grounds. Learned counsel for the respondent during his arguments has said that he does not press for maintaining the direction of the learned lower Court so far as back benefits are concerned.

3. As a result the appeal is partly accepted and maintaining the direction of reinstatement, back benefits are disallowed to the respondent. A.E./459/Lb. P ??????????????????????????????????????????????????????????????????????? Appeal partly accepted.