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Appeal No. HYD.115 of 1979, heard on 24th July, 1979.

----S.25‑A‑Dismissal for misconduct‑Workman making leave application on illness ground without mentioning period of leave and any medical certificate‑Refusal of leave communicated by registered letter on known address and also through notice in Press‑Workman, held, was not absolved of his duty to ascertain fate of request simply by making leave application‑Charge‑sheet and enquiry notice also published in Press and thereafter ex parte domestic enquiry held‑‑Grievance notice sent by workman after expiry of 3 months of dismissal order published in Press petition to Labour Court, held, not maintainable and rightly dismissed even on merits.

Choudhry Muhammad Sarwar for Appellant.

Mahmood A. Ghani, Farooq A. Ghani and Mehboob Rizvi for Respondents.

Date of hearing : 24th July, 1979.

This appeal is directed against the order delivered on 27th February, 1979, by the learned Labour Court No. VI, Hyderabad, dismissing the appellant's application under section 25‑A of the Industrial Relations Ordinance, 1969, for his re‑instatement in the service of the respondent with back benefits.

2. The case of the appellant is that he was a Timekeeper in the establishment of the first respondent, that he remained sick and conse quently absent from his duties from 7th February, 1978 to 8th May, 1978, that on 12th February, 1978, he had sent an application for leave to the first respondent, enclosing therewith a Medical Certificate, that on 8th May, 1978, when he reported for duty to the first respondent, alongwith Medical Certificate showing that he had been ill with effect from 17th February, 1978, the first respondent refused to allow him to resume his duties and informed him that he had been dismissed from service. The appellant thereupon, after service of a grievance notice upon the first respondent, filed an application under section 25‑A of the Industrial Relations Ordinance, 1969, before the learned Labour Court, seeking his re‑instatement in service with back benefits.

3. The application for re‑instatement was resisted by the respondent on the ground that the appellant had remained absent without obtaining prior leave, for a period of more than 10 days, and that in consequence, he was charge‑sheeted and due to his absence an ex parte domestic enquiry, was held and in consequence of that domestic enquiry, he was found guilty of misconduct and dismissed from service. The respondent admitted the receipt of the letter, dated 12th February, 1978, from the appellant, requesting for leave, but denied that it was accompanied by any Medical Certificate. It is also claimed by the respondent that in4s much as the appellant had failed to apply for leave in time or to give satisfactory proof of his alleged illness, be was rightly adjudged guilty of misconduct and dismissed from service.

4. The learned Labour Court on consideration of the evidence before it, was not satisfied that the appellant was unfit to attend to his duties from 17th February, 1978 upto 8th May, 1978. It may be mentioned that in his first application, dated 12th February, 1978 to the first respondent, the appellant has neither stated the period for which he desired leave nor has he mentioned therein that he was attaching a Medical Certificate therewith. The assertion made in his affidavit to the effect that be had submitted a Medical Certificate alongwith the said leave application is thus open to serious doubt. The respondent, while admitting the receipt of the application, has strongly denied that it was accompanied by a Medical Certificate. The denial appears to have substance. The inference that the leave application was not accompanied by a Medical Certificate and that the appellant has made a false assertion in this behalf in his affidavit, gains support from the fact that in his letter, dated 18th May, 1978 to the' first respondent, the appellant has stated that he had posted a registered letter on 12th February, 1978 informing him that I am ill and need medical leave for complete treatment and had promised to produce Medical Certificate after recovery'. Since the Medical Certificate was to be produced after recovery, there could be no question of a Medical Certificate being submitted alongwith the leave application.

5. The appellant has admitted in his statement before this Tribunal that the Dispensary of Dr. Abdul Shakoor, where he was treated as an Indoor patient, was 4 to 5 miles away from his residence. If the appellant could undertake frequent journeys to the Doctor, as claimed by him and traverse such long distances, it is obvious that he was not so ill as not to be able to contact the first respondent in order to now the fate of his leave application. Simply by making a leave application, the responsibility of the appellant was not over. It was also his duty to ascertain, what if any, had been the fate of his leave application, if no intimation from the Mills had been received by him. Admittedly the appellant took no steps to contact the Mills to ascertain as to what had happened in regard to his leave application. He did not even ask his neighbour, who according to him had been taking him to the Dispensary, to make such enquiry. This shows that the appellant was not at all concerned about the fate of his leave application.

6. On the other hand, there is evidence to show that the first respondent had not only duly communicated to the appellant the fact that his leave application had been refused but also the Notices of the holding of the enquiry, the charge‑sheet and the Second Show Cause notice. These notices were sent to the appellant in covers containing the appellant's correct address. These were returned unserved. It appears that the appellant had ceased residing at the address given by him to the first respondent. The said respondent thus cannot be blamed for the non‑service of the notices upon the appellant. However, as a further precaution, the first respondent had the enquiry notice and second show cause notice published in the Daily AMAN' Karachi of 15th March, 1978 and 1st April, 1978 respectively. Even if the registered notices did not reach the appellant, he cannot be considered to have been unaware of the notices published in the Daily 'AMAN'. Finally the grievance notice was served upon the first respondent after the prescribed period of 3 months. The dismissal order of the appellant was published in the Daily 'AMAN' of 8th April, 1978, while the grievance notice was served on the first respondent on 10th July, 1978, beyond the prescribed period] of 3 months. The application under section 25‑A of the Industrial Relations Ordinance, 1969, was thus not maintainable.

7. For the reasons stated above, I find no merit in this appeal which is accordingly dismissed.

Appeal dismissed.

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