1993 PLP 884 (PLC)

‑‑‑‑Misconduct‑‑‑Absence if wilful amounts to misconduct‑‑‑Workman submitting application for leave duly supported by medical certificate‑‑‑No intimation of rejection sent to him by employer‑‑‑Workman, in circumstances, held, would not be guilty of wilful absence amounting to misconduct. Lt.‑Col. Ch. Ismatullah for Appellant. Tahir Qureshi for Respondent. Date of hearing: 10th December 1985. The decision dated 28‑3‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad has been challenged, whereby the respondent was directed to be reinstated in service with back benefits.

2. The allegations against the respondent were that he disobeyed the orders of his boss to supervise the standardization of fertilizer stores at Toba Tek Singh and became absent for more than ten days. He was issued two charge‑sheets and two separate inquiries were held but by single order punishment of dismissal was awarded on two counts. There are two periods of absences according to the charge‑sheet. One period is from 12‑5‑1982 to 26‑5‑1982 and the other is from 27‑5‑1982 to 10‑6‑1982. Standardization of fertilizers stores was to be done during the period the respondent became absent. Admittedly the respondent had been sending applications for leave supported by medical certificates. It is alleged that vide Exh. P‑17 the respondent was informed about the rejection of leave but there is no proof that in reality letter copy of which is Ex.P‑17 was served upon the respondent. No postal, A.D. or personal receipt is on the record. Since the respondent was not informed about the rejection of leave, he cannot be said to be guilty of wilful absence. Needless to say that wilful absence amounts to misconduct and not when the employee has applied for leave and no intimation of rejection has been sent. Since the respondent applied for leave, it cannot be taken that willfully he disobeyed the order of supervising the standardization of fertilizer stores. So, no misconduct was committed by the respondent and he has been rightly directed to be reinstated in service.

3. However, the respondent has been wrongly allowed back benefits. He did not assert that after his dismissal he remained jobless. Back benefits are allowed to compensate the employee for remaining jobless on account of illegal order of dismissal etc. and not by way of punishment to the employer for illegally dismissing his employee. It is, therefore, necessary for the worker, who claims back benefits, to assert that he after his dismissal from service, remained jobless.

4. As a result, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, the respondent is disallowed back benefits. A.E./1522/Lb.P Appeal partly accepted.