' The appellant, who was employed as a Double Sider in the respondent mills, was granted 52 days leave with effect from 15th November, 1978 to 5th January, 1979. As he failed to report for duty on the expiry of his leave, he was placed under suspension and was charge-sheeted for remaining absent without leave from 6th January, 1979 to 27th January, 1979. The appellant, however, did not participate in the domestic enquiry in spite of repeated opportunities being granted to him for this purpose and accordingly the domestic enquiry was held ex parte. It may be stated at this stage that the case of the appellant is that though he reported at the gate of the mills on the dates of the enquiry, he was refused admittance. This contention of the appellant has neither been accepted by the Management nor by the learned Labour Court. On the basis of the report of the Enquiry Officer, the appellant was dismissed from service, vide letter, dated 6th April, 1979. The appellant challenged his dismissal orders before the learned Labour Court which has rejected the same on the ground that the appellant was unauthorizedly absent without leave, after the expiry of sanctioned leave from 6th January, 1979 to 27th January 1979. The appellant has accordingly come up in appeal to this Tribunal.
2. Mr. Mirza Muhammad Kazim, the learned counsel for the appellant, submitted that as the appellant had not taken any leave during the preceding 3 years, he was entitled to avail of 72 days leave as annual holidays and he cannot be penalized for availing of his rights under the law. The learned counsel's submissions in this behalf are based, firstly, upon the leave admissibility report of the appellant, which appears at page 73 of the learned Labour Court's record, and secondly, on section 49-B of the Factories Act, 1934. Now, as regards the leave admissibility report, it shows that 24 days leave accrued to the appellant for the year 1975, 7th May, 076 while 26 days leave accrued to him during each of the years 1976-1977 and 1977-1978. However, only the leave for the subsequent 2 years has been considered to be admissible to the appellant and not the leave which had accrued to the appellant for the year 1975-1976. It may be pointed out that under section 49-B of the Factories Act, the annual holidays admissible to a worker are only 14. However, Mr. Mirza Muhammad Kazim contended that under the practice prevailing in the respondent mills or settlement between the workmen and the mills, the number of annual holidays admissible to a workman was 26, as stated in the leave admissibility report. Although no evidence was led to establish the practice alleged nor a copy of the settlement in this behalf was produced, it may be conceded for arguments sake, specially in view of the leave admissibility report, that the number of leave days admissible to a workman for a year was 26. The question arises what period unspent annual holidays could be carried forward. Provision for carrying forward of unspent annual holidays is made in subsection (2) of section 49-11 of the Factories Act, which reads as follows "(2) If a worker fails in any one such period of twelve months to take the whole of the holidays allowed to him under subsection (I), any holidays not taken by him shall be added to the holidays to be allowed to him under subsection (1) in the succeeding period of twelve months, so however that the total number of holidays which may be carried forward to a succeeding period shall not exceed fourteen."
3. A bare perusal of the above subsection makes it clear that the maximum number of holidays which could be carried forward is 14 Since the number of annual holidays in the respondent mills appears to have been 26, the number of holidays which could be carried forward would only be 26 and not 52, despite the fact that the appellant may not have consumed or availed of holidays which accrued to him during the year 1975-76. The total leave thus admissible to the appellant, at the time when he availed of the leave in question, was 52 days and the whole this leave was admittedly granted to the appellant. No further leave was accordingly due to him.
4. It was next submitted by Mr. Mirza Muhammad Kazim that in asmuch as the appellant had requested for extension of his leave, by his letter, dated 12th January, 1979, the orders of the employer upon the leave application should have been obtained, which was not done. According to the respondent mills, the said application was received on 16th January, 1979, i. e. 10 days after the expiry of the leave sanctioned to the appellant. Since the appellant had already remained absent without leave for a period exceeding 10 days, there was no question of the leave application being submitted to the employer for orders. In any case, since the charge-sheet, dated 28th January, 1979, for remaining absent without leave, was issued by the mills manager, it may reasonably be assumed that he had taken into consideration the leave application of the appellant, but considered that the appellant had committed misconduct.
5. On merits also, I find no case made out by the appellant. The claim of the appellant was that he had fallen ill at his native place and was treated by Dr. Juma Khan, Medical Officer Incharge T. H.
Hospital, Battagram. In support of his contention, be produced 2 certificates allegedly issued by the said Dr. Juma Khan. These certificates were rightly not relied upon either by the Enquiry Officer or by the learned Labour Court for the reasons, firstly, that the certificates have not been signed but only initialled by the person issuing the certificates, secondly, the certificates are written in wrong English which could hardly be expected from a qualified Doctor, thirdly, the registration number of the doctor has not been shown on the certificates, fourthly, the certificates are on cyclostyled forms on plain papers and fifthly, though admitted in the certificates that the appellant was fit for duty on 21st January, 1979, it is stated that he would resume his duties on 27th January. 1979, which was not the function of a medical authority. It may also be mentioned that the contention of the appellant that he was ill at his native place is belied by an undated application which appears at page 83 of the record of the learned Labour Court. In that application, while admitting his fault for having over-stayed his leave, he has urged that he could not return in time due to the illness of his father, Nothing has been stated therein about his own illness. It could thus appear that the story of the appellant's illness is without foundation or at least has not been established.
6. For the reasons discussed by me above, I find no merit in this appeal and dismiss the same in limine.