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Appeal No. QSA‑545 of 1982, decided on 19th December, 1983.

‑‑Ss. 25‑A & 38 (3)‑Grievance petition against dismissal for mis conduct‑Workman charged of absence without leave‑ Absence due to illness‑Workman even not participating in enquiry on grounds of illness‑Fact of illness remaining not decided‑Order of Labour Court allowing employer to hold fresh enquiry after re‑instatement of workman, in circumstances, upheld by Appellate Tribunal.

Malik Bashir Ahmad and Mian Nisar Ahmad Saleem for Appellant.

M. A. Hamid Awan for Respondent.

Date of hearing :12th December, 1983.

The appeal titled above emanates from the decision, dated 24th August, 1982 recorded by the learned Presiding Officer, Punjab Labour Court No. 3, Lahore at Ferozwala.

2. The respondent initially applied for eight days' casual leave. It was rejected vide intimation Exh. R. 2. The respondent made another application Exh. R. A. appearing on page 119 of the lower Court's file for reconsideration of the said leave application. Thereafter other applications for further leave on medical grounds were sent by the respondent but they were supported by medical certificates of private doctors and not of the Medical Superintendent, Sheikhupura. He was asked to resume duty producing fitness certificate of the Medical Superintendent, Sheikhupura. He was charge‑sheeted for absence from 12th June, 1980 to 19th July, 1980. He did not join enquiry and had been applying for leave on medical grounds. The learned lower Court had allowed the appellant to hold enquiry afresh and fixed two months for the completion of the same.

3. It has been argued that according to the evidence of R. Ws. all the employees had been intimated by affixing a notice on the notice board that leave on Medical grounds would be allowed only on the medical certificates of the medical Superintendent, Sheikhupura, so the respondent was not justified in relying upon the certificates of private doctors. If in reality the respondent was not ill, of course his absence was wilful. But the facts were otherwise than the mere fact that he did not produce medical certificate from the Medical Superintendent, Sheikhupura was not sufficient to dismiss him. If he was ill then this was the reason that he could not participate in the enquiry. If enquiry had been postponed till the respondent had resumed duty and he had failed to establish the plea of illness, of course there could be justification to dismiss him. The main thing is whether he was ill. In these circumstances, the learned lower Court rightly allowed the appellant to hold enquiry afresh in the presence of the respondent. This is an admitted fact that fresh enquiry has been made which has culminated in the second dismissal order and a petition under section 25‑A is pending adjudication before the learned lower Court. If the respondent this time establishes his illness, his failure to participate in the previous enquiry would be due to illness and thus he should not be shunted out in consequence of the previous enquiry.

4. Apart from it since the appellant has elected to hold fresh enquiry, it has accepted the order of the learned lower Court and thus cannot ask for the setting aside of the order of re‑instatement and fresh enquiry. This is noteworthy that no request in this appeal was made to suspend the permission of holding fresh enquiry. The only prayer was that the operation of the order to the extent it fixed the period of two months to conclude the enquiry; be suspended and that was allowed. So, after acting upon the permission to hold fresh enquiry, the prayer for setting aside the impugned order has ceased to remain effective. The parties now may fight the second grievance petition. The present appeal has become infructuous and thus is filed.

A. E. Orders accordingly.

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