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Constitutional Petition No. D‑601 of 1983, decided on 24th August, 1983.

‑‑‑‑ S. 25‑A‑‑Sind Factory Rules, r. 108‑Employee‑Intimation about illness‑Rule 108 of Sind Factory Rules, held, does not warrant proposition that a person who is sick need not even intimate employer nor seek leave.

‑‑‑ S. 25‑A‑Employee absenting himself from duty without obtaining leave or applying for same nor even informing employer about his sickness‑Finding of Labour Tribunal that employee not entitled to back benefits on re‑instatement upheld.

S. Ashraf Hussain Rizvi for Petitioner.

Date of hearing : 24th August, 1983.

-----The petitioner was an employee of respondent No. 1. Admittedly, the petitioner did not attend his duties from1984 AHMED ALIM V. GENERAL TYRE AND RUBBER CO. OP PA . LTD. 123 (Haider Ali, J)

20th July, 1981 to 30th July, 1981. Admittedly, he did act even inform the respondent No. 1 about the reason for his absence. In fact, he did not even make an application for leave: In these circumstances, a charge- sheet was served on the petitioner on 30th July, 1981, calling for his explanation in regard to absence for a continuous period of more than ten days, which constituted misconduct within the meaning of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance of 1963. An enquiry was held, and, by an order, dated 25th September, 1981, the petitioner was dismissed from service on the ground of his absence. The petitioner, after complying with the formalities, made an application under section 25‑A of the Industrial Relations Ordinance before the 4th Sind Labour Court at Karachi. This application was dismissed, so that the petitioner filed an appeal before the Sind Labour Appellate Tribunal. The learned Chairman of the Tribunal allowed that appeal, and held the order of dismissal to be bad. In regard to the grant of back benefits, the learned Chairman took cognizance of the fact, during the entire period of absence, the petitioner had neither submitted a leave application nor a Medical Certificate, and the further fact that the sickness of the petitioner was not of a nature as created a disability in him to send even an application for leave. On such process of reasoning, the Appellate Tribunal declined to grant any back benefits to the petitioner.

The learned Advocate has challenged such portion of the order of the Appellate Tribunal as has denied to the petitioner back benefits, viz. his wages for the period starting with his dismissal and ending with his reinstatement.

A view has prevailed in this Court that the grant of back benefits was a discretionary relief, and the mere refusal to grant such relief would not entitle a person to maintain a Constitutional Petition. This was a view taken by a Division Bench of this Court in C. P. No. 860/1981. The matter had been taken to the Supreme Court by a petition for special leave to appeal, bearing C.P.S.L.A. No. K‑289/1981, The Honourable Judges of the Supreme Court dismissed the petition, but, among the reasons, had stated as follows:‑,,

In order to fully deserve the relief claimed, the party had to place all the material before the tribunal and satisfy it. If it has failed to discharge that burden fully or to the satisfaction of the tribunal it cannot object to the power of the tribunal as such. We find that the High Court justifiably and on good grounds refused to interfere in the matter."

The above passage would seem to indicate that the Honourable Judges of the Supreme Court also went into the matters of fact, despite the Division Bench holding that the order, being discretionary, could not be challenged in a Constitutional Petition. The rule laid down by the High Court appears to have been softened to some extent.

Coming now to the merits of the case, the learned Advocate has initially invited our attention to Rule 108 of the Sind Factory Rules. This rule reads as follows :-

108. (1) A workman who is absent from work for reasons of health shall if so required by his employer in writing submit medical certificate signed by a registered medical practitioner stating the cause of the absence and the period for which he worker will, in the opinion of the medical practitioner be unable to attend to his work.

(2) When an employer provides medical facilities for his employees, workers living in a colony attached to the factory shall obtain such certificate from the factory doctor.

(3) The charges for a certificate required to be produced by a workman under this rule shall be borne by the employer".

We have not been able to understand as to how this rule can advance the case of the petitioner. On the contrary, sub‑rule (I) would seem to indicate that a workman, who is absent from work for reasons of his health, shall, if so required by the employer, submit a Medical Certificate. This rule would seem to cover and contemplate such cases, where a workman intimate that his absence is for reason of health, because it is only when the employer knows that the workman is absent on account or reasons of health that sub‑rule (1) will come into play at all. Such knowledge can be derived by the employer only if the workman intimates that he is sick, and therefore unable to work, in which case the employer has a right to demand that the workman should produce a certificate, showing ill health. Certainly this rule does not warrant the proposition that a person, who is sick, need not even intimate the employer, nor seek leave.

The learned Advocate also placed before us the Supreme Court judgment in the case of Divisional Superintendent, P. W. R. Karachi v. Bashir Ahmad (1). Our attention has been specifically drawn to placitum A', appearing at page 592 of the Report. Such passage reads as under :‑

"It was held by this Court in that case that "wages" as defined in section 2 (vi) of the Act,'‑does not necessarily mean earned wages. Where an employee to whom the Act applies, is ready and willing to render service, but the employer is not affording him opportunity to render such service, the employee is entitled to full wages, unless a deduction is expressly allowed under the Act."

The above passage would seem to indicate that the Honourable Judges of the Supreme Court held that deduction was permissible only if it was justified under section 7 of the Payment of Wages Act. This would, therefore, bring us directly to the provisions of section 7 of the Payment of Wages, Act. Subsection (2) of section 7 of the Payment of Wages Act reads as follows :‑ .

"(2) deduction from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely :‑

(a) .. .

(b) deductions for absence from duty ;

(Other clauses of subsection (2) have .not been reproduced as those are not relevant in the context of this case).

Clause (b) clearly provides that deduction can be made for absence from duty.

(1) P L D 1973 S C 589

The question, that then falls for determination, is, whether the peti tioner did absent himself from duty. We are in no doubt that he did absent himself from duty without obtaining any leave, or, even applying for leave.

Coming to the impugned order, we find that the learned Chairman of the Tribunal has considered the full facts in relation to absence of the petitioner, and arrived at conclusions of fact that it was a case of gross, negligence on the part of the petitioner that he did not even inform his employer about his sickness. The findings of fact recorded by the learned Chairman would not be easily assailable in these circumstances.

We see no force in this petition, which we dismiss in limine.

M. Y. H. Petition dismissed.

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