1989 PLP 889 (PLC(CS))

M.S. Bokhari for Appellant. M.A. Rashid Awan for Respondent. Date of hearing: 19th January, 1988. The two appeals captioned above emerge from the decision dated 19‑10‑1987 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby Muhammad Bashir (hereinafter called as the respondent) has been directed to be reinstated in service without back benefits. Bata Pakistan Limited (hereinafter described as the appellant) has challenged the direction of reinstatement, whereas the respondent has in his appeal, claimed back benefits. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. The allegation for which the respondent was dismissed from service was of absence from 25‑3‑1984 to 9‑10‑1984. After holding ex parte inquiry the dismissal order was passed. There were two addresses of the respondent with the appellant. The charge‑sheet and inquiry notices sent at the home address of the respondent had come back with the report that they could not be delivered, inasmuch as the respondent was not there and probably had joined duty. It is clear that the said letters were not served upon the respondent as he could not be contacted by the postman. In these circumstances, the appellant should have made another attempt to serve the charge‑sheet and, thereafter, the inquiry notice. The inquiry notice, no doubt, was published in the newspaper but since the charge‑sheet was not served, there was no occasion to appoint the Inquiry Officer and to direct him to hold inquiry. If the report had been that the appellant A had refused to accept the letters, of course, it would have amounted to legal service and further issuance of charge‑sheet and inquiry notice would not have been necessary. In these circumstances, the appellant was not justified in holding the enquiry ex parte.

3. It has been argued by the learned counsel for the appellant that although medical certificate Exh. P.1 was produced, yet since the doctor had recommended rest of eight weeks from 5‑4‑1984 to 4‑G‑1984, only whereas the absence was from 25‑3‑1984, therefore, the respondent was guilty of misconduct. The respondent had stated in his statement that before remaining under the treatment of the doctor who had issued Exh. P. 1 after going to his native place, he had remained under the treatment of the Social Security Doctor from whom he had obtained certificate and had produced it to the department. This part of the statement of the respondent was not rebutted by examining any witness on the point. R.W. 1 was the Inquiry Officer and he was not the authority to be delivered any medical certificate nor he says that no medical certificate issued by the Social Security Doctor was produced to him by the respondent. The respondent had in cross examination deposed that he had not obtained any receipt of the leave sanctioned by the Social Security, therefore, the absence of any receipt of the delivery of the said certificate is not material. Moreover, if charge‑sheet and inquiry notice had been served upon the respondent, he may have participated in the inquiry and may have produced the copy of the Social Security certificate. Learned counsel for the respondent during arguments had in his possession photo copies of the Social Security certificates. The result is that the appellant failed to prove that the absence of the respondent was wilful and that he had not remained ill.

4. Learned counsel for the respondent has in arguments said that if the appellant withdraws his appeal, he would not press the appeal for back benefits. Since the appeal of the appellant is failing in view of the statement of the respondent's counsel made at the bar, the appeal for back benefits cannot be accepted.

5. As a result, both the appeals fail and are dismissed. A.E./499/Lb.P Appeals dismissed.