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Appeal No. Kar.‑244 of 1980, decided on 8th December, 1980.

‑‑Art. 8‑Ouster of jurisdiction of Courts including Labour Court- Applicable in cases of orders of Managing Director of taken over establishment passed at time of taking over that a particular emp loyee should not be retained in service‑Action taken for Misconduct long after take over, held, governed by labour laws applicable to establishment and such matters not ousted from jurisdiction of Labour Courts‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A and West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance (VI of 1968), S. O. 15.

PECO Ltd. v. Muhammad Nazir P L D 1983 Lah.. 82 and Nazar Muhammad v. Multan Electric Supply Company 1979 P L C 250 ref.

Ali Amjad for Appellant.

Kamal Mansur Alam for Respondent.

Date of hearing : 8th December 1980.

The appellant, who was employed as Junior Plant Operator in the Sind Alkalis Limited the respondent, herein proceeded on sanctioned leave for 40 days to his home place in Azad Kashmir on or about 25th November, 1977. As he failed to report for duty on 22nd April, 1978 up to which date his leave had been extended, he was dismissed from service with effect from 10th August 1978, vide respondent's letter of even date. The dismis sal orders were made on the report of the Enquiry Officer, Asghar Ali Shah, who found the charge of absence without leave for More than ten days established against the appellant. A grievance petition was filed by the appellant before the learned Labour Court challenging the orders of his dismissal from service. The learned Labour Court has dismissed the appellant's grievance petition on the grounds, firstly, that in view of the provisions of Article 8 of the Economic Reforms Order, 1972 the Courts, including the Labour Courts, were barred from calling is question the order of dismissal of the appellant which was passed by the Managing Director of the respondent, and secondly, that on merits the charge of misconduct had been fully established against the appellant. The ap pellant has now come up in appeal to this Tribunal against the said decision.

2. I have heard Mr. Ali Amjad, the learned counsel for the appel lant and Mr. Kamal Mansur Alam, who appeared for the respondent Company.

3. In support of its first ground upon which the learned Labour Court has dismissed the grievance petition of the appellant, namely, the ouster of the jurisdiction of a Labour Court by reason of the provisions of Article 8 of the Economic Reforms Order, 1972, it relied upon the decision of the Karachi High Court in Constitutional Petition No. 1301 of 1975 (Pakistan Engineering Company v. The Presiding Officer, Fifth Labour Court), decided on 21st March, 1979 and a Division Bench de cision of the Punjab High Court reported in P L D 1980 Lah. 82. This ques tion, however, was examined in some detail by this Tribunal in the case of M/s. Karachi Pipe V ills Ltd. v. Karachi Pipe Mills Employees' Union, decided on 4th March 1980, and it was observed as follows :‑

"In my humble opinion, the scope of Article 6 is strictly limited, and it applies only to cases where upon the taking over by the Govern ment of the management of an establishment, the Managing Direc tor appointed by Government decides that a particular employee should not be retained in service or that the remuneration and conditions of service of any employee, who is to continue in emp loyment, should be varied. The Article, as I read it, is clearly in applicable to cases where disciplinary action, resulting in dismissal is taken against any employer, upon charges of misconduct. It is also inapplicable to employees appointed after the take over. A somewhat similar view has been taken by the learned Chairman of the N. I. R C. in the case of Nazar Mohammad v. Multan Electric Supply Company 1979 P L C 250, where the extent of hire and fire power' of the Managing Director of a taken over industry has been elaborately discussed."

4. As admittedly the action taken against the appellant was long after the establishment was taken over by the Government, the appellant's case could not be governed by the Economic Reforms Order but by the pro visions of the Labour laws applicable to the establishment.

5. On merits the case of the appellant, as disclosed‑in the grievance petition was that he had returned to Karachi from his native place on 1st May, 1978, but as he was ill, he was under medical treatment till 8th May, 198, when he reported for duty and produced a medical certificate in support of his illness. The medical certificate relied upon by the appellant purports to have been issued by Dr. Raffat Shamim of Karachi. No doubt, the name of the person in respect of whom the medical certificate had been issued corresponds with the name of the appellant but there is no evidence to show that the medical certificate in fact has been issued in respect of the appellant as the certificate does not bear the signature or thumb‑impression of the appellant or his address. It is, therefore, quite possible that the certificate may be in respect of another person bearing the same name as that of the appellant. Apart from this, there is clear indication from the evidence on record that the certificate in question does not pertain to the appellant. According to the certificate the person in respect of whom it was issued was under treatment of Dr. Raffat Shamim at Karachi from 1st May, 1978 till the date of the issuance of the certificate. However, the appellant himself in his evidence before the learned Labour Court, admitted that from 22nd April, 1978 till 9tb May, 1978 he was in Azad Kashmir and during that period he sent neither an application nor a telegram for leave. If the appellant was in Azad Kashmir till 9th May 1978 obviously he could not have been under medical treatment of Dr. Shamim at Karachi with effect from 1st May, 1978. It may also be pointed out that the appellant, in his statement before the Enquiry Officer, did not claim that he was under treatment at Karachi from 1st May, 1978 and on the contrary conceded that he was absent without leave with effect from 22nd April, 1978. The plea of the appellant, therefore, that he was under treatment at Karachi with effect from 1st May, 1978, would appear to be an afterthought and incorrect and no reliance can be placed on it. In my view, both the learned Labour Court and the Enquiry Officer rightly held that misconduct on the part of the appellant in remaining absent without leave for a period exceeding ten days had been fully established.

6. For the above reasons, I find no merit in this appeal and accordingly, uphold the order of the learned Labour Court and dismiss the appeal.

Appeal dismissed.

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