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Appeal No.11 of 1984, decided on 26th September, 1984.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)----

-- S. O. 8 (2)-Leave-Provisions of S. O. 8 (2) do not contemp late any notice for three months-Leave application submitted on same day from which leave was to commence-Rejection of appli cation after 5 days on plea that a notice of three days was to be given, in circumstances, held, had no blessing of law.

---Ss. 7(2), 15(2). & (3) & 17 - Sickness and Industrial Injuries Benefits Scheme-Jurisdiction of Authority-Deduction of wages due to absence from duty-Workman applying for earned leave for 3 days to proceed to another station to mourn death of a relative and sending application with medical certificate for further leave for 6 weeks on sickness grounds-Leave not sanctioned and intimation to that effect sent-Workman not resuming, duty till expiry of such period- Wages for such period not allowed-Work man approaching Authority for recovery of such deducted wages Authority dismissing application as not maintainable-Workman can claim wages for period of confinement to bed under Sickness and Industrial Injuries Benefits Scheme-Claim of wages under the scheme distinct from claiming leave--Employer has to satisfy himself that workman has a genuine claim-Mere submission of medical certificate in support of leave on sickness grounds may not be a suffi cient proof of sickness if employer has reasons or material to doubt bona fides -Deduction of wages by treating such period as absence from duty governed by S. 7 (2)-Authority, held, com petent to examine if in fact workman was absent from duty and order of employer in that respect could be scrutinised by Authority-Application of workman, in circumstances, held, enter tain-able by Authority-Deduction of wages, in circumstances, held, justified and workman, held, rightly treated as absent from duty and provision of S. 7 (2) fully attracted-Labour Court dis missing appeal against order of Authority.

Suleman Malik for Appellant. Maroon Waheed for Respondent.

This is an appeal under section 17 of Payment of Wages Act, 1936 (hereinafter to be called as Act) and is directed against the direction issued by the learned Authority, Rahimyarkhan, dated 30th April, 1984, whereby, be dismissed an application of the appellant Under section 15 of the Act for the recovery of deducted wages. Necessary facts bearing upon this appeal are as under.

2. Allah Bukhsh, appellant was employed in Lever Brothers Ire applied for three days earned leave from 8^th June, 1982 to 10th June, 1982. On the expiry of the said leave he applied for ten sion in leave for six weeks on medical ground supported by a medical certificate. The respondent did not sanction the leave and considered him absent from duty for six weeks commencing from 11^th June, 1982 to 21st July, 1982 and refused him wages for this period. The appellant felt that non-payment of wages for this period amounts to illegal deduction of wages. He approached the learned Authority with a request that the respondent may be directed to make him payment of Rs. 2,000 the amount of the wages calculated by him. Fits claim was opposed inter alia on the grounds that the leave applied for was refused and intimation was sent to him. It was incum bent upon the appellant to have resumed his duty. Since he did not do so, he was properly treated as absent and his wages were deducted. Juris diction of the learned Authority was also questioned on the ground that propriety of the order by which leave was refused cannot be examined by him.

3. The learned Authority framed as many as five issues but recorded his finding on issue No.1 alone under which he held, "that the petitioner is not entitled to his claim from the reason that no leave appears to have been sanctioned to him." By his order, dated 30th April, 1984 the peti tion was rejected. Feeling aggrieved, Allah Bukhsh has come up in appeal.

4. The learned counsel for appellant hag argued that the petitioner applied for three days earned leave on 8th June, 1982. He was orally allowed by his Engineer to proceed on leave as he was going to Bahawal pur to mourn the death of his relative. To his surprise the leave was rejected on 13th June, 1982, it was illegal. If the respondent was not inclined to sanction leave, appellant should have been informed of it on the same day refusal of leave was in violation of the mandatory provision of Standing Order 8(2) of Standing Orders Ordinance, 1968. In order to appreciate this argument we will have to look into this provision of law. It provides as under :--

"A workman who desires to obtain leave of absence shall apply to the employer who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for whichever is earlier, provided that if the leave applied for is to commence on the date of the application or within three days thereof, the order shall be given on the same day."

Exh. R. 3 is a photocopy of the application submitted by the appellant. It was submitted on 8th June,, 1982 the date on which the leave applied for had to commence. It was therefore, necessary for the respondent to have issued order on it on that very day. The representative of the respondent has however, contended that this application was received late and as 3 days' advance notice was not given, it could not be sanctioned. Standing Order 8 (2) does not contemplate any three days notice. It lays down in unambiguous terms that where an application is submitted on the day leave has to commence, the employee will pass order on the same day. I do not believe that the application did not reach the office of the Engineer for 5 days after its submission.

The order, dated 13th June, 1982 by which earned leave was refused has/no blessing of law. It, however, does not make any difference. Earned,' leave can be encashed at any time. If the respondent has not paid the wages to the appellant for three days his earned leave will not be reduced by three days and appellant can get this leave encashed which tanta mounts to recovery of wages of these three days.

5. The real controversy relates to the application for sick leave and its refusal. There is no cavil with the proposition that where a workman falls sick, he becomes entitled to certain benefits under Sickness and In dustrial Injuries Benefits Scheme. Under this scheme he can claim his wages for the period he remains confined to bed. This claiming of wages is something different from claiming of leave. There is thin line of distinction between these two types of claims. If right of leave is conceded to a workman then of course, he can claim it as of right and employer cannot refuse it, as a matter of routine but where benefits have to be granted to an ailing workman the employer will have to satisfy himself that the workman has a genuine claim. Mere submission of medical certificate by the workman may not be sufficient proof of his sickness for sickness benefits, if the employer has reason or material to doubt his bona fide. This actually happened in this case. The appellant sent a medical certificate together with his application Exh. R. 4 alleging that he bad fallen ill when he came to see his relatives at Bahawalpur. The reason given for earned leave was that his relative had died. Thus the reason in two applications were divergent. It created doubt in the mind of the respondent as to the genuineness of the appellant's claim. His leave was refused and consequently, the wages for this period which were to be paid to him by way of benefits were withheld. The representative of the respondent has vehemently argued that the action of deduction of wages was justified on the basis of section 7(2) (b) of the Act. Under the said provision of law, an employer is justified in making deduction from the wages of an employed person for absence from duty. Since the leave was not sanctioned and the appellant did not care to ensure if his application was accepted or not, he was rightly treated as absent from duty. In these circumstances section 7 (2) (6) is fully attracted. I agree with this contention.

6. As to the jurisdiction of the learned Authority a short reference to subsection (2) of section 25 of the Act may be sufficient. Subsection (2) provides, "where contrary to the provisions of this Act any deduction has been made from the wages of an employed person he may apply to such authority for direction under subsection (3). "It means that the Authority has to see whether deduction has been made so it is according to the provisions of this Act. If the employee wants to justify the deduction then the Authority will be competent to see as to whether circum stances exist on which deduction is sought to be justified. In the instance' case, deduction has been justified on the basis of section 7 (2) (6) of the Act. The Authority will, therefore, be competent to examine if in fact the appellant was absent from duty. In doing so all orders passed in thief behalf can be scrutinized by the Authority.

7. In view of what has been said above, I hold that the petition file by the appellant was entertain-able by the Authority. I, however, concur with the finding of learned Authority that the petitioner is not entitled to claim sickness benefits for the reason that his sickness leave was not sanctioned to afford proof of his actual sickness. He became absent from duty and the respondent was justified in deducting wages for such period. There is no merit in this appeal and it is hereby dismissed.

A. E.

Appeal dismissed.

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