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Appeal No. HYD‑250 of 1984, heard on 15th December, 1985.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑
‑‑‑S.O. 15(3)‑‑Industrial Relations. Ordinance (XXIII of 1969), Ss.25‑A & 38(3)‑‑Absence‑‑Unauthorised absence amounting to misconduct‑‑Bank employee sending applications for leave due to ailment duly supported by Medical Certificates‑‑Leave neither granted as per rules of Bank nor rejection thereof, communicated to employee‑‑No case of misconduct or unauthorised absence, held, was made out‑‑Plea of actual ailment accepted by Appellate Tribunal‑‑Order of Labour Court setting aside dismissal from service pursuant to ex parte enquiry and awarding re instatement with back benefits, upheld by Appellate Tribunal.
‑‑‑ Domestic enquiry‑‑Ex parte proceedings‑‑Bank employee sending application for leave due to ailment duly supported by medical certificate‑‑Ex parte enquiry conducted on charge of unauthorised absence‑‑Letter of enquiry not proved to have been received by employee‑‑Ex parte enquiry, held, was uncalled for.
Bashir Ahmed Awan for Appellants.
Wasiullah Qureshi for Respondent.
Date of hearing: 15th December, 1985.
This is an appeal by Muslim Commercial Bank Ltd., against the order of the Labour Court No. VI at Hyderabad who had allowed the grievance petition without back benefits by his order, dated 18‑10‑1984.
2. The respondent, one Aziz Ahmed was working as Cashier in the Muslim Commercial Bank Limited at Jang Shahi Branch. He had developed abdominal pain, hence, he sent application and telegram for leave on account of his ailment from 6‑3‑1983. He was shown to be under the treatment of Dr. Anwaruddin Moughal at Hyderabad. On 23‑4‑1983 he was served with a show‑cause notice about the absence without leave and the notice was duly replied by him on 2‑5‑1983. It is alleged that he was served with a letter of enquiry, dated 16‑8‑1983 directing him to appear before the Enquiry Officer on 28‑8‑1983. However, the respondent did not appear before the Enquiry Officer on this date and sent a letter requesting for adjournment on the plea of his illness. The enquiry was postponed to 3‑9‑1983 and the bank admitted that this letter of enquiry was returned undelivered. However, the enquiry was held ex parte on 3‑9‑1983 and finally on 25‑10‑1983 the respondent was dismissed from service. Departmental Appeal was filed but with no response, therefore, the grievance petition was filed by the respondent.
3. The stand taken by the Muslim Commercial Bank was that the respondent remained absent and his absence was without authorisation, so after the enquiry, he was rightly removed from service.
4. The respondent, Aziz Ahmed examined himself by way of affidavit and for the appellants Enquiry Officer Mahmood Ali Shah and Abdul Aziz Memon filed their affidavits. I have heard today Messrs Basheer Awan and Wasiullah Qureshi, the learned counsel for both the parties.
5. I have perused the affidavit of the respondent, Aziz Ahmed. He says that on 6‑3‑1983 he fell sick for which he has sent medical certificates from time to time. The medical certificates were A‑1 A‑2 and A‑3. He further says that he did not receive any letter, dated 29‑8‑1983 so he was quite unaware about the alleged enquiry which was said to have been held on 3‑9‑1983.
6. In view of this evidence the arguments of Mr. Basheer Ahmed Awan, the counsel for the Bank fall flat. Unauthorised absence is not proved since it is admitted that his certificates of ailment and his request for leave was sent and is received by the Bank. Granting of leave or rejecting of the same would be according to the bank's rules A and if the leave was not available to him then he should have been communicated the result of rejecting the application. No such communication is proved from the record. The applicant (respondent herein) states that he sent various medical certificates A‑1 to A‑3 and B he was not in a position to attend the enquiry and the enquiry held by the appellants was ex parte enquiry and he did not know about the nature of enquiry as held by the appellant. It is not proved that the letter sent to the respondent with regard of holding enquiry was received by him or not. It was mere presumption on the part of the Muslim Commercial Bank that the respondent has remained absent without authorisation. I have perused the order of the learned Labour Court. No case is made out under Standing Order 15 of the Standing Order Ordinance and the ex parte enquiry held was not called for.
The Bank authorities have their rules pertaining to leave and other disciplinary actions. Holding of enquiry was done under the standing Orders Ordinance. The main point is that he did not remain absent as he has sent the certificates of his ailment and also applied or leave. If the leave was not granted he should have been communicated about the rejection of the leave. I have seen these medical certificates on record. Actually, the respondent was ailing and was suffering from abdominal pain.
In these circumstances, I uphold the order of the Labour Court No. VI, Hyderabad and dismiss this appeal.
A.E. Appeal dismissed.
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