DECISION ' This appeal is directed against a decision of the learned Fifth Labour Court given on 5th September, 1981, dismissing the appellant's grievance petition against his dismissal from service on the alleged ground of having remained absent without leave for a period exceeding ten days with effect from 26th December, 1978.
2. The appellant, who claims to have been in the service of the respondent-Company since the last eight 'years, was working as Personnel Assistant in the Personnel Division of the respondent corporation. On 31st December, 1978, he sent a telegram to the respondent corporation, which reads as follows :- "Due to sickness unable to attend Office."
' It appears that despite the receipt of the telegram, the respondent did not grant any leave to the appellant but after waiting for some time on 17th January, 1979, sent him a telegram, at the address of the appellant available with the respondent corporation, requiring him to resume his duty immediately and in case of sickness to report to Dr. Perween Hamidullah, Yousaf Ali Building, who was the authorised medical attendant of the corporation. As the appellant neither resumed his duty nor reported to Dr. Perween Hamidullah for medical checkup, a show-cause notice, dated 4th March, 1979, was sent to the appellant by registered post, ackowledgment due, requiring him to submit his written explanation for remaining absent without leave from 26th December, 1978. As no explanation to this show-cause notice was received by the respondent corporation, an Enquiry Officer was appointed to conduct the enquiry against the appellant on 25th March, 1979. Notice of this enquiry was published in the Daily 'Dawn' of 22nd March, 1979. Since the appellant failed to turn up for the enquiry on the aforesaid date the enquiry was conducted ex parte. The Enquiry Officer, in his report, dated 26th March, 1979, found that the appellant had unauthorisedly remained absent from his duty with effect from 26th December, 1978. A second show-cause notice was thereafter published in the Daily 'DAWN' of 1st April, 1979 calling upon the appellant, to submit reply thereto within three days. The appellant, however, requested for one week's time to reply to the said show- cause notice which extension was duly granted by the respondent corporation. The appellant, thereafter, submitted detailed reply to the second show-cause notice and was also given personal hearing before Mr. V. M. Becker, a Director of the respondent corporation, and Mr. K. M. Aminullah.
Controller Accounts and Administration in the respondent corporation. As the Company was not satisfied with the explanation submitted by the appellant, including the medical certificate produced by him regarding his illness, he was dismissed from service with effect from 22nd May, 1979. The appellant challenged the orders of his dismissal before the learned Fifth Labour Court which has dismissed his grievance petition and it is against the said decision of the learned Fifth Labour Court that the present appeal has been preferred by the appellant.
3. I have heard Mr. Masood Ahmed Abbasi, the learned counsel for the appellant. The learned.
Advocate has assailed the impugned decision of the learned Labour Court on two main grounds.
His first ground of attack was that the domestic enquiry against the appellant was held behind the back' of the appellant and the appellant had no notice of the said enquiry. He, accordingly, urged that the finding in the domestic enquiry could not be made the basis for the dismissal of the appellant.
4. I have already referred to the fact that a show-cause notice, dated 4th March, 1979, was sent to the appellant by registered post, acknowledgment due. This letter was sent to the address of the appellant as available with the respondent Company. It is also the same address which has been given by the appellant in his grievance petition. It has been established through the evidence of the Post Office Town Inspector, Mohammad Akhtar, and the Official letter signed by the Post Office Supervisor, Athar Mirza, that a cover containing the charge-sheet, dated 4th March, 1979, was delivered to the addressee. Even if there be some doubt as to the service of the said charge-sheet upon the appellant, the charge-sheet is deemed to have been served upon the appellant by reason of the notice published in the Daily 'Dawn' of 22nd March, 1979, which further states that the domestic enquiry would be held on 25th March, 1979. The plea of the appellant that he does not read the Daily `Dawn' and hence he was unaware of the notice cannot be taken seriously. As has been held by their Lordships of the Supreme Court in the case of Dawood Cotton Mills Limited v.
Guftar Shah (1), the requirement of clause (4) of Standing Order 15, that the workman must be informed in writing of his misconduct would be fulfilled if the notice of misconduct is given to the workman in the mills premises or sent to him by post or is published through newspaper. It was specifically observed by theirs Lordships of the Supreme Court that there was no invariable rule imposing a duty on the employer that the notice of misconduct must be actually served by the employer on the workman, but it was enough if the notices are sent by post or are published in the newspapers, as has been done in the instant case. I am, therefore, satisfied that the respondent- Company did all that was within its power to comply with the requirements of clause (4) of Standing Order 15.
5. It was next contended by Mr. Abbasi that inasmuch as the appellant was prevented by illness from attending to his duty he should be deemed to have valid cause for his absence with effect from 26th December, 1978. Reliance was placed by Mr. Abbasi on medical certificate, dated 29th March, 1979, issued by Dr. M. Rehman. The said certificate reads as follows : "This is to certify that Mr. Ghulam Shabbir is suffering from anxiety neurosis and is under my treatment. He is advised rest from 1st January, 1979 to 31st March1979."
' In the first place though the appellant was 'absent with effect from 26th December, 1978, the medical certificate covers a period from 1st January, 1979 to 31st March, 1979. It may further be.
Pointed out that the appellant himself in his evidence before the learned Labour Court has admitted that he used to visit the doctor daily in the month of December and thereafter he used to visit his clinic frequently. If the appellant was in a position to visit the 'doctor so frequently there should have been no difficulty in his communicating to the respondent-Company about his illness and informing it that he is continuously under treatment. Reference has also previously been made to the telegram, dated 17th January, 1979, sent by the respondent-Company to the appellant directing {{FOOT NOTE}}
(1) PLD 1981 SC 225 {{FOOT NOTE}} ' him to resume his duty and in case he was sick to get himself checked and treated by Dr. Perween Hamidullah but the appellant failed to do so. His failure casts doubts upon the genuineness of the medical certificate which was produced by him from another Doctor one-and-behalf months later.
Besides the said certificate merely indicates that the appellant was advised rest but does not disclose that he was unable to contact the respondent-Company and inform it of his inability to perform his duty. If the appellant could visit his doctor frequently he could also take the trouble of visiting the company. The long absence of the appellant from 26th December, 1978 up to 22nd May, 1979, Cannot, thus, be excused and I find myself wholly unable to accept the appellant's plea that his absence from duty was due to circumstances beyond his control.
6. It was finally contended by Mr. Abbasi that the action taken against the appellant was on account of his trade union activities. The circumstances indicated above do not support his contention. I have already shown that the action taken against the appellant was on account of his prolonged and unauthorised absence. The mere fact that a person is an active trade unionist does not give him any special privilege to flout the law or to escape the consequences of his misconduct.
7. For the reasons discussed by me above I find no merit in this appeal and would, accordingly, dismiss the same in limini.