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‑‑ S. O. 15 (3) (e)‑Misconduct‑absence from duty ,for period exceeding 10 days‑Mere absence if for reason beyond control of workman‑Does not attract harsh penalty of dismissal‑Work man not resuming duty after expiry of sanctioned leave and sending application for extension of leave on grounds of sickness -Medical certificate furnished subsequently covering whole period -Non‑submission of medics: certificate with first application, held not sufficient to hold same as unreliable‑Doctor treating workman summoned by Appellate Tribunal testifying his certificates indicating disease from which workman was suffering ‑ Dismissal or order passed on alleged misconduct of absence for more than 10 days, in circumstances set aside by Labour Appellate Tribunal Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38.

Rao Khan v. Messrs Globe Textile Mills Ltd. Karachi 1982 P L'C 654 ; Ghulam Mohammad v. General Tyre & Rubber Co. of Pakistan Ltd. 1979 P L C 473 ; Juma Khan v. Messrs Gul 4hned Textile Mills Ltd. 1980 P L C 704 : Muhammad Zarat v. Capital Wood Seasoning industries 1982 P L C 121 and ,Aooz‑u‑ber Rehman v. U. M. Iqbal Coal Mines, Khanote 1980 P L C 741 distinguished.

Messrs Khawaja Autocars Ltd. v. Syed Abdul Rehman 1982 P L C 128 rel.

Mirza Mohammad Kazim for Appellant.

Abdul Hadi Fareed for Respondent.

Date of bearing : 18th August, 1982.

DECISION

This appeal is directed against the decision of the learned Fourth Labour Court given on 5th January, 1982, dismissing the grievance peti tion filed by the appellant workman challenging his dismissal from service by the respondent company.

2 The facts, which form the background of this appeal, shortly stated, are that the appellant, who was a workman employed in the respon dent company and who is said to have tar his credit 22 years service in the respondent company, applied for and was granted sixty days leave with effect from 7th February, 1981 to 7th April, 1981 for the purpose of going to his native village in Mardan District. The appellant failed to return and resume his duties on the expiry of his leave but submitted an undated application for extension of leave to the management. There is a difference of opinion between the parties as to whether this application is the one at page 75 of the record of the learned Labour Court, which according to the respondent corporation was received by them on 12th April, 1981, or the application at page 15 of the record of the learned Labour Court, which was appended by the appellant to his grie vance petition. This difference of opinion is of no consequence as the undisputed fact remains that an application for extension of leave was made by the appellant from his native place in Mardan District before 12th April, 1981. As admittedly this application was not accompanied by a medical certificate and further the period from which the exten sion of leave was required was not mentioned, the management, by their letter, dated 25th April, 1981, rejected the request of the appellant and advised him to resume his duties within three days, failing which action to accordance with law would be taken against him. The appellant sent a second application, dated 29th April, 1981, again requesting for further extension of leave on the ground that he had fallen ill and was under treatment of a doctor who had advised him rest. With this appli cation the appellant sent certificate from Dr. Mohammad Saleem, a registered medical practitioner of Swabi certifying that the appellant was suffering from lumbage and that he had advised him rest for one month with effect from 9th April, 1981. It may be mentioned here that even in his earlier application which was sent to the management and received by them on 12th April, 1981 the appellant had requested for extension of leave on the ground that he was ill. The management was apparently not satisfied with the certificate of the medical practitioner appended to the appellant's application, dated 29th April, 1981 for extension of leave, and by their letter, dated 10th May, 1981, informed him that sick leave would not be granted to him unless he submitted a medical certificate issued by the Civil Surgeon and duly attested by the Social Security Institution. The appellant neither resumed the duties nor submitted certificate of the Civil Surgeon with the counter‑signature of the Social Security Doctor but instead, on 8th May, 1981, submitted to the management yet another application for extension of leave by twenty days on the ground of his sickness. This application was also supported by a certificate, . dated 7th May, 1981; from Dr. Muhammad Saleem advising the appellant to have complete rest for further period of twenty days. In the mean while, on 25th April, 1981, the management sent a charge‑sheet to the appellant at his native place alleging unauthorised absence on his part for a period exceeding ten days. This was followed by notice of enquiry, dated 3rd May, 1981. The enquiry was. to be held on 12th May, 1981 but was actually held on 31st May, 1981 by which time the appellant had returned from his native place and resumed his duty. The appellant participated in the enquiry and contended that his absence from his duties with effect from 8th April, 1981 was due to his having fallen ill at his native place and in support of his contention he relied upon the medical certificates issued by Dr. Mohammad Saleem. The defence of the appellant did not find favour with the Enquiry Officer who seems to have rejected the medical certificates of Mr. Mohammad Saleem mainly on the ground that whereas the first certificate of the doctor was dated 8th. April, 1981, it was not sent by the appellant with his first application for extension of leave but with his second applica tion for extension of leave. The Enquiry Officer, therefore, recommended the dismissal of the services of the appellant. On the basis of the Enquiry Officer's report the appellant was dismissed from service by order, dated 10th June. 1981.

The appellant challenged the order of his dismissal before the learned Fourth Labour Court through a grievance petition. This grie vance petition was resisted by the respondent company on the grounds that the appellant had been dismissed after it had been established in a domestic enquiry that he was unauthorisedly absent for a period exceed ing ten days. It was also contended on behalf, of the respondent corpo ration that the medical certificates issued by Dr. Muhammad Saleem were considered unreliable and hence they could not be accepted. The learned Labour Court has rejected the appellant's grievance petition on three grounds, firstly, that the application for extension of leave were made by the appellant after the expiry of his leave, secondly, that the medical certificates issued by Dr. Mohammad Saleem do not bear the signature of the appellant and hence it is not established that the certificates relate to the appellant, and thirdly, that the doctor who had issued the certificates was not examined. The learned Labour Court also relied upon certain observations made by this Tribunal in the case reported in 1981 P L C 651 about the unreliability of medical certificates issued from Hazara District. The learned Labour Court failed to notice that this was a case of Mardan District and not of Hazara District and in the instant case the certificates were issued by a registered medical practitioner while the certificates from Hazara District were from non registered medical practitioners.

4. As the main issue in this case centred on the genuineness of the medical certificates issued by Dr. Mohammad Saleem and also the fact whether they 'related to the appellant, on the request of both the parties, Dr. Mohammad Saleem was summoned and examined in this Tribunal. He has testified that he had issued the medical certificates, dated 8th April, 1981, 7th May, 1981 and 23rd May, 1981, and also the prescription, dated 23rd May, 1981. He further testified that these certificates related to the appellant who was treated by him for lumbago.

5. I have heard Mr. Mirza Mohammad Kazim, the learned counsel for the appellant, and Mr. Abdul Hadi Fareed, who appeared for the respondents. It was contended by Mr. Mirza Mohammad Kazim that the appellant unfortunately fell ill at his native place, where he had gone on sanctioned leave, and hence was unable to resume his duties on the expiry of the leave initially granted to him and, accordingly, submitted applications for extension of leave supported by medical certificates. The learned counsel further submitted that in the domestic enquiry also it was the stand of the appellant that his failure to resume his duties on the expiry of his leave was due to his illness and has supported his conten tion by production of medical certificates issued by Dr. Mohammad Saleem.

6. On the other hand it was strongly contended by Mr. Abdul Hadi Fareed that the appellant was granted combined annual leave and leave without pay for sixty days in accordance with the settlement arrived at between the management and the C. B. A. and it was specifically provided in the settlement that if the workman fails to resume duties on the expiry of such leave action tinder the law would be taken against him. He contended that the action against the appellant is not only in accordance with the law but in complete accord with the terms of the settlement arrived at between the C. B. A. and the management. The learned counsel also urged two other grounds in support of his contention that the orders of dismissal in respect of the appellant are valid and justified. His first contention, which also found favoar with the learned Labour Court, was that no application for extension of leave was received by the management from the appellant before the expiry of leave of the appellant and hence the management was fully competent to reject the application of the appellant for extension of leave, which was subsequently received and which was not accompanied by a medical certificate though it was claimed by the appellant that he was sick. It was further contended by Mr. Abdul Hadi Fareed that the medical certificates issued by Dr. Muhammad are unreliable, particularly the certificate, dated 8th April, 1981. He submitted that if this certificate, in fact, had been issued on that date it would have been sent by the appellant to the management either alongwith his application for exten sion of leave, which was received by the management on 12th April, 1981, or at least much before 29th April, 1981 when he actually sent it. The learned representative also pointed out that the prescription, dated 23rd May, 1981, was not produced by the appellant before the Enquiry Officer and hence the Enquiry Officer's finding was limited to the material placed before him.

7. Mr. Abdul Hadi Fareed also sought to rely on the decisions reported as Rao Khan v. Messrs Globe Textile Mills Ltd., Karachi (1982 F L C 654), Ghulam Muhammad v. General Tyre & Rubber Co. of Pakistan Ltd. (1979 P L C 473), Juma Khan v. Messrs Gul Ahmed Textile Mills Ltd. (1980 P L C 704), Mohammad Zarat v. Capital Wood Seasoning Industries (1982 P L C 121) and Aooz‑u‑ber Rehman v. H. M. Iqbal Coal Mines, Khanote (1980 P L C 741). In the cases of Rao Khan, Muhammad Zarat and Aooz‑u‑ber Rehman, the medical certificates relied upon by the workmen were not accepted for the reasons stated in judgments, but the principal reason common in all the three cases was that the doctor who had issued the medical certificates was not examined while in the instant case the doctor has been examined. Further, in the case of 4ooz‑u‑ber‑Rehman, the medical certificates were written on plain pieces of paper and not on the usual letter‑heads of hospitals and medical practitioners, the registration number of the doctor was not stated and most important the medical certificates were not signed by the doctor himself but were signed by some one else on behalf of the doctor. In the case of Rao Khan the other circumstance which found favour with this Tribunal in rejecting medical certificate was that the certificate had not been signed by the doctor but merely bore initials. The certi ficate also did not indicate the ailment from which the person for whom the certificate was issued was claimed to be suffering from and further in his two applications for extension of leave the workman had given different and conflicting explanations for his absence.

8. In the two other cases of Ghulam Muhammad and. Juma Khan relied upon by Mr. Abdul Hadi Fareed, though extension of leave was sought on the ground of sickness no medical certificates were produced and hence there was no material in support of the contention of the workman that they were ill. In the instant case the appellant had produced three separate certificates indicating that he was suffering from lumbago and that he was under the treatment of Dr. Muhammad Saleem with effect from 8th April, 1981. As already indicated, Dr. Muhammad Saleem was examined before this Tribunal and he has testified that the appellant was under his treatment for lumbago with effect from the above date. He has further testified that even on 23rd May, 1981 when he finally examined the appellant he found that the appellant still required further treatment and hence he had prescribed certain medicines for him. The said prescription was produced by the appellant before the learned Labour Court. I am, therefore, satisfied that the appellant was unable to resume his duties, on the expiry of his leave on 8th April, 1981 with the respondent company. The mere fact that the appellant either due to his ignorance or foolishness, failed to submit the medical certificate, dated 8th April, 1981, to the management before 29th April,, 1981, in my opinion, is not sufficient ground for rejecting the said certi ficate or for holding that it is unreliable. In the case of Messrs Khawaja Autocars Ltd. v. Syed Abdul Rehman (1982 P L C 128) it has been held by this Tribunal that misconduct on the part of a workman in absenting him self from his duties for a period exceeding ten days contemplated of item (e) of clause 3 of Standing Order 15 involves an element of mens rea and mere absence, if it is for reasons beyond the control of the workman concerned, does not attract the harsh penalties, including dismissal prescribed in Standing Order 15.

9. The upshot of the above discussion is that I would set aside the decision of the learned Labour Court and would direct the reinstate ment in service of the appellant. There remains the question of back benefits. Although the appellant was certified fit by his own doctor on 23rd May, 1981, there is no evidence to indicate that the appellant reported for duty to the respondent corporation before 31st May, 1981 when the enquiry against him was commenced. Furthermore, there is no tangible evidence, one way or the other, whether the appellant, during the intervening period, was or was nor gainfully employed elsewhere. In the circumstances I would award him fifty per cent back benefits.

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