1994 PLP 653 (PLC)

The petitioner had been working as dispenser with the respondent Company's Hospital at Khoski from 1976. He was sanctioned leave from 28th up to 30th of May, 1991. On the expiry of the leave he had not reported for duty. The respondent had sent telegram calling him back to work. It was thereafter that the petitioner had sent a telegram asking for extension of leave for an unspecified period. He was informed again telegraphically that the leave had been refused and he had to join immediately, otherwise, disciplinary action will be taken up against him.

2. There being no compliance, and a show‑cause notice was issued on 6‑7‑1991. He had replied to the same and mentioned his illness enclosing a medical certificate from a local doctor. Again he was informed that the domestic enquiry was proposed to be taken up, and if he did not turn up it will be ex parte. It was so conducted on the 18th of July 1991, ex parte. Capt. (Retired) Arshad Mehmood had examined Dr. Ziaul Haque the R.M.O. of the Hospital, Malik Akhtar Hayat, the Time‑Keeper, and Muhammad Naseer the Leave Clerk, and submitted the report. As in the opinion of the Enquiry Officer the charge of absence beyond 10 days stood proved the respondent dismissed him form service by order dated 17‑9‑1991.

3. The petitioner had sent a grievance notice on 12‑12‑1991 and thereafter filed the petitions.

4. In the written reply the respondent denied the allegations made against them. It was further urged that the petitioner had turned up for the personal hearing after the issuance of the second show‑cause notice and the dismissal was in accordance with law.

5. The petitioner was his own witness while Lt.‑Col. (Retired) Ata Muhammad the General Manager, and Lt.‑Col. (Retd.) S. Bahadur Ali, the Personnel Manager appeared on behalf of the respondent.

6. The Labour Court agreeing with the contentions of the respondent dismissed the petition resulting in this appeal.

7. In the petition though there was clear mention of the fact that the petitioner was working as a dispenser, no plea of non‑maintainability of the petition on the grounds of exclusion under section 1(3)(1), I.R.O. was raised in the written reply. Mr. Talpur, however, has urged this contention, before me. As a point of law can be raised at any stage, and as no element of prejudice is involved, looking to the tenor of the pleadings and the evidence, there appears to be no reason to stop the challenge.

8. Mr. NA. Talpur learned counsel for the respondent has referred me to the case of Mrs. Naseem Sadique v. Sindh Labour Appellate Tribunal and others 1984 PLC 1679 which is a decision from a Division Bench of our High Court, and Gola Khel Collieries. District Mianwali v. Punjab Labour Appellate Tribunal, Lahore and 2 others 1986 PLC

521. These citations are sufficient to dispose of the appeal. I will however, advert to the merits in brief 9 The appellant had been granted the leave only for 3' days and his destination was Gujrat which is the home town. According to him 18 hours are required for journey to Gujrat from Khoski. Be that as it may, on the expiry of leave he never sent any application for extension of leave in spite of a telegram from the respondent. He was threatened with disciplinary proceedings on 9‑6‑1991. that is after a delay of 10 days, that he had requested telegraphically for an extension of leave. But even then he did not specify the period. That is indicative of his non‑chalant attitude. It was thereafter that he was informed that enquiry was to commence against him and if he did not return would be held ex parte. He never cared to attend.

10. The Medical Certificate mentioned only renal colic. That could not be so debitilating as to keep him glued up to the 6th of November, when he chose to turn up for the first time for the personal hearing. There are no prescriptions and no cash memos. Even the doctors have not been produced in support of the nature of illness as has been insisted upon, in a number of decisions. I would not consider what the appellant had to say before the General Manger at the time of personal hearing but his indifferent behaviour essentially is because he has got something else to attend to. There is evidence that he has the license of a Drug Shop. Be that as it may the very fact that for 10 days after the expiry of leave, he had not bothered to ask for its extension shows his indifference to his obligations as an employee. He had sent the telegram because of the repeated calls from the respondent. Such a behaviour constitutes misconduct.

11. I will therefore affirm the impugned order and dismiss the appeal. H.B.T./2323/Lb.S Appeal dismissed.