1997 PLP 3116 (MLD)

US$. 13,391.00 Ex‑rate as on 2‑2‑1983 US $1350 Rs.1,82,722.00

5. Medical & expenses Rs.1,055.00 Total Amount Rs. 1,83,777.00

5. Defendant Corporation who are represented by Pakistan National Shipping Corporation filed a written statement through them stating that the German Doctor recommended sick leave in favour .of the plaintiff for 6 to 8 weeks. The plaintiff who was suffering from a serious disease i.e., cancer failed to mention this fact and was no longer fit for duty. He was, therefore, signed‑off from the Articles of Agreement of the vessel upon his being hospitalised on 12‑8‑1983 and being left ashore due to his unfitness to a proceed on the voyage. Defendants denied their liability to pay medical expenses of the plaintiff after his successful operation at Bremen (West Germany) and being signed‑off from the Articles of Agreement. According to the defendants since the plaintiff did not rejoin duty on expiry of maximum sick leave granted by the German Doctor, his services stood terminated vide their telex dated 21‑12‑1983. They disputed all other allegations including the certificates issued by Dr.S.H. Manzoor Zaidi who was not an authorised medical attendant on behalf of the defendant Corporation. While denying the claim of the plaintiff, defendants asserted that he had over‑drawn US $ 1005‑63 in as much as his wages including leave pay from 3‑4‑1983 to 12‑8‑1983 worked out at US $ 5914‑51, whereas he had received US $ 6921‑14.

6. Initially apart from the defendants, Pakistan National Shipping Corporation were joined as defendant No.2 but on their application being Civil Miscellaneous Application No.3831 of 1986 seeking rejection of the plaint against them for the reasons that the plaint did not disclose any cause of action, their prayer was granted and vide order dated 9‑3‑1986 their name was struck off from the array of parties. In the written statement, defendants raised an issue with regard to jurisdiction of this Court for entertaining the suit. After recording evidence on the said preliminary issue It was decided in favour of the plaintiff by Mamoon Kazi, J., (as his Lordship then was) vide order dated 6‑12‑1990.

7. On the pleadings of the parties following issues were settled: (1) Whether the plaintiff was fit to rejoin service on expiry/sick leave, if so, did he fail to rejoin, and, therefore, the plaintiff's services stood terminated? (2) Whether the service of plaintiff was terminated in violation of the terms and conditions of the letter of appointment? (3) Whether the Court has jurisdiction to try the suit? (4) Whether the plaintiff is entitled to relief claimed in the suit?

8. In support of his case, the plaintiff examined himself and produced letter of appointment, certificate from German Doctor and copies of the certificates and telex referred to above, whereas, the defendant Corporation examined Naeem Ahmed, D.W.1 and Zainul Abedin, D.W.2, both serving as officers in Pakistan National Shipping Corporation under' the authority of the defendant Corporation.

9. I have heard learned counsel for the parties and gone through the record. My findings are as under for the following reasons. Reasons. Issue No. 1.

10. There is no controversy with regard to the surgery conducted on the plaintiff at Bremen (West Germany) and certificate of discharge issued by the German Doctor advising 6 to 8 weeks sick leave for convalesce at home from the date of discharge. Allowing the maximum benefit of 8 weeks to the plaintiff, this period expired on 18‑11-1983 but the plaintiff neither rejoined his duty nor reported for duty to the defendant Corporation in terms of the letter of his appointment. As he was permitted to take rest at home i.e., Karachi, the plaintiff on his own approached Professor S.H. Manzoor Zaidi, who vide certificate Exh.5/4 certified that the plaintiff being a case of testiculor tumor and further interrogation was advised rest on medical grounds from 23‑11‑1983 to 22‑12‑1983 Before the expiry of this period, plaintiff approached the defendants through telex dated 20‑12‑1983 Exh.5/6 for extension of leave for one month which was declined by the defendants vide their telex dated 21‑12‑1983 Exh.5/7 warning the plaintiff to report for duty failing which his services may be terminated. The plaintiff, however, did not bother to report for duty and reiterated his request vide his application dated 24‑12‑1983 Exh.5/8 enclosing therewith an other certificate purportedly issued by Professor S.H. Manzoor Zaidi advising further leave for one month upto 21‑1‑1984.

11. There is nothing on record to substantiate that this application with Doctor's certificate was actually received by the defendants Corporation but the evidence of D.W., Naeem Ahmed reveals that Dr. S.H. Manzoor Zaidi was not the authorised medical officer of the defendant Corporation and in fact Dr. Major Nassrullah Khan was working as Chief Medical Officer for Bangladesh Shipping Corporation. It is evident that the defendants Corporation had serious reservations about the certificates issued by Professor S.H. Manzoor Zaidi. Be that as it may, plaintiff stated that after his arrival at Karachi, he consulted Dr. Zaidi for his follow‑up and treatment, who after check‑up advised him rest from 23‑11‑1983 to 22‑12‑1983 which was extended again by one month when he visited Professor S.H. Manzoor Zaidi on 19‑12‑1983. While admitting that in response to his telex dated 20‑12‑1983 defendants sent telex dated 21‑12‑1983 directing him to report for duty failing which his services might be terminated, he asserted that he had written to the defendants on 24‑12‑1983 that Doctor had advised him to remain at Karachi till 21‑1‑1984 for further medical check‑up and expressed his inability to join his duty. The defendants did not respond to this request for extension of sick leave whereas the plaintiff did not report for duty and for the first time on his own showing he sent a telex to the defendants on 8‑1‑1984 that lit had been advised to join his duty after 21‑1‑1984 when he will be fit for duty. Surprising enough, the plaintiff did not produce the telex of its copy allegedly sent by him to the defendant on 8‑1‑1984. Copies of the telex produced by him are dated 1‑2‑1984 referring to his earlier telex dated 8‑1‑1984 which was followed by defendants' telex advising him to avail the opportunity to join any other suitable job, if offered.

12. In the absence of any expert medical evidence, it is hardly possible to say that the plaintiff was not fit to rejoin his employment on expiry of sick leave certified by the German Doctor. However, since the period of sick leave certified by German Doctor is not in controversy the question for consideration arises whether after the expiry of sick leave advised by German Doctor, plaintiff was not in a position to rejoin his duty. While the plaintiff all along claimed that he could not rejoin his duties , it was on behalf of the defendants that in fact he was interested in staying on at Karachi and seeking extension of his leave far beyond than it was absolutely necessary. Since the onus of proof of his inability to rejoin duties after the expiry of sick leave rests on the plaintiff and he failed to discharge the same by satisfactory and reliable evidence, the issue is answered as not proved. Issue No.2.

13. In view of the finding on issue No‑I, it is difficult to hold that the service of the plaintiff was terminated in violation of the terms, and conditions of the letter of his appointment. The case of the defendants is that on being hospitalised in Germany w.e.f. 12‑8‑1983 they had signed‑off the plaintiff from the Articles of Agreement and it was no longer their liability to continue with the employment of the plaintiff, who remained away from the duties without any sufficient cause. To my mind, consistent with the terms and conditions of letter of appointment in the event of termination of his employment, the plaintiff was entitled to three months leave but by reason of his unauthorised absence from duty on the pretext of medical advice by Dr. Zaidi he lost the said privilege. Had he approached the Chief Medical Officer of the defendants' Corporation the position would have been otherwise. As after expiry of the sick leave recommended by German Doctor he did not join his duties and went on asking for extension of leave termination of his service cannot be declared as in violation of the terms of his appointment. In all fairness after the receipt of telex Exh.5/6 dated 21‑12‑1983 he ought to have reported for duty but he remained adamant to avail of the leave without sanction from the employer. Issue No.3.

14. This issue was already decided in favour of the plaintiff as stated in earlier part of the judgment and is accordingly dropped. Issue No.4.

15. As a result of my findings on the foregoing issues the plaintiff is however entitled to claim salary for the period from 13‑8‑1983 to 18‑11‑1983 during which period he remained on leave on account of hospitalization in Germany and sick leave as recommended by German Doctor at his home which t is not disputed by the defendants. His claim for three months notice pay is declined for the reason that his services were terminated for his unauthorised absence from duty. Plaintiff's suit is decreed with costs in the sum of US $ 3524.12 minus 1005.63 US $ i.e US $ 2518.49 equivalent in Pak. currency as on the date of realisation. M.S./M‑144/K Suit decreed partly.