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Appeal No. MN‑509 of 1984, decided on 9th July, 1985.

‑‑‑ Leave due to sickness‑‑Cannot be refused unless for good reasons plea of illness found false‑‑Workman on sanctioned leave not resuming duty on expiry and sending application for extension of leave due to illness supported by medical certificate‑‑No reply sent‑‑Workman, in circumstances, held, could not be treated guilty of misconduct of absence.

‑‑‑ Dismissal for misconduct‑‑Charge‑sheet and enquiry notice sent through post received back undelivered‑‑No effort made for service through advertisement in Newspapers‑‑Dismissal from service, in circumstances, held, amounted to condemnation unheard hence not sustainable.

‑‑‑S. 25‑A‑‑Re‑instatement‑‑Back benefits‑‑Compensation to employee for remaining jobless and not a punishment to employer for wrongful termination of service‑‑Employee claiming back benefits bound to state on oath that after termination he remained jobless or otherwise to disclose actual earnings so that employer may claim set‑off for deduction.

Sh. Safdar Jang for Appellant.

Muhammad Zaman Qureshi for Respondent.

Date of hearing: 1st July, 1985.

The decision, dated 7‑8‑1984 recorded by the learned Presiding Officer. Punjab Labour Court No. 9, Multan has been challenged whereby the respondent was directed to be re‑instated in service with back benefits.

2. The allegations for which the respondent was dismissed from service was absence from 24‑10‑1982 to 20‑11‑1982. The case of the respondent was that he was already on sanctioned leave but did not resume duty and had sent another application for leave through his brother for further leave alongwith medical certificate and he did not receive any intimation about the rejection of leave. The brother of the respondent was examined in support of the respondent. Yard Master R.W.1 also supported the respondent. In cross‑examination he said that P.W.2 had brought an application alongwith a medical certificate to him covering the period from 24‑10‑1982 to 24‑1‑1983 and he had directed him to approach the District Manager. The statement of R.W.1 shows that in reality the brother of the respondent had gone to the management with a medical certificate. The case of the appellant is that no application of leave for the period from 24‑10‑1982 to 24‑1‑1983 was received. If brother of the respondent had taken medical certificate to R.W.1 there could have no reason why he should not have gone to the District Manager when R.W.1 had told him that the District Manager was the proper authority. The District Manager was not examined to rebut the statement of the brother of the respondent namely Muhammad Ghaffar. Since there was a medical certificate it was the duty of the appellant to consider the leave application. When law gives a right of sick leave to a worker, the employer cannot refuse the same unless for good reasons the plea of illness is found to be false. In the present case the plea of the appellant was not that the application for leave and medical certificate were considered and found to be false. The stand taken by the appellant that no leave application was received. But this plea was not established inasmuch as it stood proved by the evidence of Muhammad Ghaffar brother of the respondent and Yard Master R.W.1 that the brother of the respondent had brought a medical certificate and application for leave to the District Manager.

3. The charge‑sheet and enquiry notice were not served upon the respondent, The envelope came back with the report that whereabouts of the addressee were not known, The actual words used on The report was not that the addressee was not residing on the given address nor that he had left the place. So the inference is that he was not contacted. According to the respondent he I had furnished his correct address but the letters were not sent on the said address. Even if the plea of the appellant is accepted that no other address was furnished, since the letters containing the charge sheet and enquiry notice had been received back undelivered, they should have been got advertised in a Newspaper. So respondent was condemned unheard and thus the dismissal order was not sustainable.

4. However the respondent was wrongly allowed back benefits by the learned lower Court. The respondent did not state in his statement before the learned Court that after his dismissal he had remained jobless. If a worker has got some employment it is in his knowledge whereas the employer has no source to find out if the dismissed employee had secured any employment elsewhere or not. It is, therefore, the duty of the worker in cases where he claims back benefits to state on oath that he after his dismissal remained unemployed. If he had got some employment then it is his duty to disclose the same what he actually earned so that the employees may claim set off and the earnings may be deducted from the back benefits. Since in the present case the respondent had not proved that he remained jobless after his dismissal he was not entitled back benefits. Needless to say that back benefits are allowed not as a punishment to the employer for wrongful termination from service but as a compensation to employee for remaining jobless.

5. As a result of the observations made above, the appeal is partly accepted and maintaining the direction of re‑instatement in service and modifying the impugned decision, the respondent is disallowed back benefits.

A.E.

Appeal partly accepted.

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