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Appeal No. LHR‑350 of 1983, decided on 30th April, 1984.

‑‑ S 2 (xxviii) and West Pakistan Industrial and Commercial Em ployment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)‑"Work man"‑Duties performed clerical‑Exercising powers of sanctioning leave to some employees during temporary absence of supervisor for a day or two, held, would not change original and normal duties so as to oust such employee from definition of workman.

‑‑ Termination of service due to non‑attendance being medically unfit ‑ Right of employer‑Previous illness, held, though relevant but it is necessary to see if in future too employee is not in a position to render service‑Employee after illness declared fit for service by Doctor to whom referred by employer's Medical Officer‑Termination of service merely on account of previous illness, in circumstances, held, not sustainable and employer could not play role of expert and reject Doctor's report.

Malik Muhammad Asghar for Appellant.

H. R. Holder for Respondents.

Date of hearing : 25th April, 1984.

The appeal captioned above arises from the decision, dated 29th May, 1983 delivered by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, dismissing the grievance petition of the appellant for his reinstate ment in service.

2. The grounds on which the services of appellant were terminated are ill‑health and long absence on medical grounds. The learned lower Court has found that the appellant is not a workman. On merits it has been decided that the appellant was rightly terminated. So far as the point of workman is concerned, the learned lower Court was very much impressed by the fact that the appellant had been allowing leave to some employees. The learned lower Court failed to consider that only in the absence of the Senior Accountant R.W. 1 the appellant sanctioned leave. This, on the contrary, shows that normally he was not competent to sanction leave. In the absence of the supervisor some person has to act temporarily as such but this temporary exercise of power for a day or two would not change the normal or original duties of the employee. The appellant stated on oath that he had been preparing consumption vouchers, quarterly returns of sales‑tax, take up of Premier Tobacco Industries and Pakistan Tobacco industries, computer vouchers, computer J.V.S. He had, as stated by him and admitted by the learned lower Court in the impugned judgment, brought the record of the above mentioned clerical work for the perusal of the learned lower Court, but the Court does not say that it was seen. If it was not brought by the respondents, the learned lower Court should have compelled the respondents or allowed the appellant to produce secondary evidence. The appellant has no jurisdiction to compel the respondents to produce the record. He could only request the Court, which he did. R.W. 1, no doubt, stated that the appellants duties were to supervise and check the work of any employee but no record of such a work done by him was produced as a specimen. If the appellant had been supervising and checking the work of some employees, the same should have been produced when the production of leave applications was considered necessary. It could be the duty of R.W. 1 Senior Financial Accountant to supervise and not of the appellant, who is an Assistant Accountant, in the presence of the former. Non‑production of the record of clerical work and the alleged supervisory work done by the appellant clearly shows that the appellant was, in reality. doing clerical work as deposed by him. The statement of the appellant, therefore, does not stand effectively rebutted. I, accordingly reverse the finding of the learned lower Court on the point.

3. The services of the appellant were terminated on the ground that he remained on seven months' sick leave. Learned lower Court says that this was sufficient ground. Previous illness, no doubt, is relevant but it is necessary to see if in future too the employee concerned is not in a position to render service for a long time. Needless to say that an employer has a right to terminate the services of his employee on the ground that his business suffers due to his non‑attendance but this ground can be available if in future too the employee is not in a position to perform ‑ his duties. Services cannot be terminated on mere pretexts but on solid and cogent grounds. If an employee is in a position to render service regularly future, he cannot be terminated. According to rules, an employee, who has remained on sick leave, has to produce fitness certificate to resume duty. I the doctor does not certify him as fit for duty in future, he cannot be given duty. So, if the respondents wanted to terminate the services of the appel lant on the ground of ill‑health, it should have got the appellant medically examined for future fitness or otherwise. Dr. 1. A. K. Tareen issued fitness certificate Exh. P. 11. The Chief Medical Officer had referred the appellant to the above‑mentioned doctor and the appellant remained under the treat ment of the said doctor. Since the said doctor issued fitness certificate, there was no cause or ground for the respondent to say in the termination order that there was no likelihood of improvement in the near future. On 26th July, 1980 the employer very rightly passed an order that the papers be put up if an application for further leave was received. But when no application came and rather the doctor issued fitness certificate, services were terminated on 28th July, 1980 only after two days. Of course, if the appellant had applied for further long leave on medical grounds and the doctor had recommended, there could have been justification for the res pondents to terminate the services of the appellant, If the respondent was not satisfied with the fitness certificate Exh. P. 11, it should have got the appellant examined by a medical board but in the presence of Exh. P. 11 and in the absence of further application for leave, the respondent was not justified in terminating the services of the appellant. An employer cannot play the role of an expert and reject the report of the expert. The C learned lower Court is not justified in saying that past ill health is sufficient and that it is riot to be seen if in future the employee is in a fit condition to serve. So, on merits also the decision of the learned lower Court is wrong.

4. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the order of termination of services, the appellant is directed to be re‑instated in service with back benefits.

A. B. Appeal accepted.

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