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Appeal No. KAR‑197 of 1984, decided on 26th January, 1986.

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

‑‑‑S.O. 15(3)‑‑Misconduct‑‑Absence without leave for more than ten days‑‑Medical certificate proving illness, held, would not excuse workman s absence where it is not proved that absence was not wilful or intentional or that he was prevented by unforeseen circumstances‑ Extension of leave admissible on recommendations of Medical Officer of Employer‑‑Workman due to illness remaining under treatment at native village arid such illness though certified by medical officer not of such nature as to prevent him from undertaking journey for appearing before Medical Officer of Employer‑‑Absence, in circumstances, not for reasons beyond control of workman and medical certificate would not be of any help to claim that his absence was not wilful or intentional or that he spas prevented by unforeseen circumstances.

Siraj Ahmad for Appellant.

Masood Ahmad Khan for Respondent.

The order by Sind Labour Court No. 11, Karachi, dated 23‑7‑1984, is challenged in this appeal.

2. The facts are that Amirzada Khan was employed as a worker in the respondent‑factory. He met with a serious accident in July, 1981, which resulted in the fracture of the bone in his left leg. He was granted leave by the respondents from 13‑7‑1981 to 26‑9‑1981. The appellant, therefore, proceeded to his home town in N.‑W.F.P., for rest and treatment. There he remained under the treatment of Professor Jamilur Rehinan in Civil Hospital, Abbottabad and was advised rest initially for six weeks. He remained under the treatment of the said Doctor upto 4‑1‑1982: The appellant reported for duty on 10‑1‑1982, but he was told that his services were terminated. He, therefore, filed the grievance petition.

3. The stand taken by the respondents challenging the maintainability of the grievance petition on account of its being time‑barred. They admitted that accident took place and submitted that the Medical Officer of the factory granted him leave upto 22‑9‑1981. They submitted that the appellant had no leave in his balance but two months leave was sanctioned as a special case. Further leave could only be granted on the recommendations of the Medical Officer of the factory. The respondent further submitted that since the appellant neither reported to Factory Medical Officer for re‑examination or reported for duty and continued to remain absent unauthorisedly beyond 26‑9‑1981 and even after 19‑10‑1981, a charge‑sheet, dated 20‑10‑1981 was issued to him at his native place which was returned back undelivered with the remarks that the worker was ill and unable to move about. They further submitted that enquiry letter was also sent to the appellant at his native place but it was also returned back with the remarks "either that he was ill or that he refused to accept" and in these circumstances the respondents had no option but to hold an ex paste enquiry against the appellant and he was dismissed for non‑attending the duties without leave.

4. On behalf of the appellant, Amirzada Khan, on affidavit in evidence was filed. He also filed four documents as Annexures 'A‑1' to 'A‑4'. He was duly cross‑examined. One Qabool Ahmad Qureshi was examined on behalf of the appellant. The appellant also examined Dr. Bashir Ahmed Khan and Dr. Jamilur Rehman of Civil Hospital, Abbottabad on Commission. On behalf of the respondents, Altafur Rehman Khan, Personnel Officer was cross‑examined on his affidavit filed by him.

5. I have heard the respective counsel of the parties.

6. The learned counsel for the appellant submitted that every absence from duty could not amount to misconduct. The absence from duty was due to the circumstances, which were not under the control of the appellant. These are the nutshell arguments of the appellant. While, or the other hand the respondents exhaustively argued their case. The arguments advanced by the learned counsel of the appellant were not convincing. It is a matter of record that Amirzada Khan was sanctioned two and a half month leave, with effect from 13‑‑7‑1.981 to 26‑9‑1981 oil the advice of Factory Medical Officer as a special case as no leave of any kind was due to him in his leave account. Ira the circumstances any further extension of leave after 26‑9‑1981 could have been made by the respondents only if tire Factory Medical Officer Would have advised the same and, therefore, it was necessary for Amirzada Khan to present himself for examination by the Factory Medical Officer and for consideration of his request for grant of further leave. From the evidence on record, it could not be gathered that during the period from 26‑9‑1981 to 20‑10‑1981 the appellant was incapacitated to such an extent that he was unable to move about or undertake the journey from his native place to Karachi. No doubt, according to the evidence of Dr. Jamilur Rehman fresh plaster was put on the legs of Amirzada Khan on 5‑ 9‑1981, but this fact, could not have prevented him from undertaking tie journey from his native place to Karachi is as much as immediately after the fracture of the bone in his legs, plaster was applied to his legs in Karachi and he took the journey from Karachi to his native place. This journey could have been taken in order to appear before the Medical Officer of the factory who might have recommended for further leave. The various Medical Certificates issued to him by Dr. Jamilur Rehman and others could not be of any help to the appellant to claim that his absence after 17‑10‑1981 till 4-l-1982 was not wilful or intentional or that he was prevented by unforeseen circumstances. The learned counsel for the appellant did not raise any other ground against the order of dismissal and did not question the validity or the legality of the enquiry proceedings conducted against the appellant. His main ground was that he was prevented by those circumstances, which were not under his control. But, even then his arguments are not acceptable as he could have travelled upto Karachi by applying plaster. His circumstances were much better and he could have done so. The question of limitation was condoned.

7. In nutshell the enquiry was not illegal or unjust or in sheer disregard of the common practice. The grounds advanced by the appellant are not very sound and his grievance petition was rightly dismissed by the Labour Court and I would agree with it. The appeal is accordingly dismissed.

A. E. Appeal dismissed.

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