' Respondent Jehangir Masih, who was employed in Messrs General Tyre & Rubber Company of Pakistan Limited, the appellants herein, as an unskilled worker was dismissed from service, vide order of the appellants, dated 10th December, 1980, on the charge of being absent without leave from his duties for a period exceeding 10 days with effect from 24th July to 9th August, 1980. The dismissal orders were based on the domestic enquiry proceedings held against the respondent, and according to the report of the enquiry officer, the misconduct with which the respondent was charged was duly established in those proceedings. The respondent challenged the orders of his dismissal before the learned 1st Labour Court, which has taken the view that as the respondent had produced before the management a Medical Certificate from a registered medical practitioner, certifying that he was ill, under the treatment of Dr. Kabir Khan and unable to perform his duties during the period of his absence, the orders of his dismissal from service were not maintainable.
Accordingly, he has directed the re-instatement in service of the respondent with full back benefits.
Aggrieved by this decision, the General Tyre & Rubber Company of Pakistan Ltd., have come up in appeal to this Tribunal.
2. I have heard Mr. Wazir H. Rizvi, the learned counsel for the appellants, and Mr. Choudhry Rashid Ahmad, who represented the respondent workman.
3. Mr. Wazir Rizvi assailed the impugned decision of the learned Labour Court solely on the point that the learned Labour Court had misconstrued sub-clause (e) of clause (3) of Standing Order 15 and accordingly had come to a wrong conclusion. According to the learned counsel for the appellants, absence simplicitor, without leave, for a period exceeding 10 days, constitutes misconduct punishable under Standing Order 15, whatever may be the cause of absence of the workman. A similar issue fell for consideration by this Tribunal in the case of Rice Export Corporation of Pakistan Ltd. v. Ghulam Abbas and another, decided on 11th May, 1981. In that case, while holding that cases of absent due to circumstances beyond the control of the workman do not constitute misconduct for the purposes of Standing Order 15, it was observed as follows :- "I am inclined to agree with the view of Mr. Obaidur Rehman Khan that while the phrase "absence without leave" as used in sub-clause (e) of clause (3) of Standing Order 15, cannot be restricted to cases of wilful or even negligent absence without leave, since the phrase is not qualified by any such epithets, at the very least cases where the absence is due to circumstances beyond the control of the workman do not fall within the purview of the aforesaid sub-clause. No doubt, as pointed out by the learned Judge of the Karachi High Court in the case of Guftar Shah, the phrase "absence without leave" is not qualified by any such epithet as wilful or deliberate but with very great respect to the learned Judge for whom I entertain the highest esteem and respect, I find myself unable to agree with the broad proposition enunciated by him that "absence without leave for more than 10 days "simplicitor constitute misconduct without consideration of other circumstances which may be relevant and irrespective of the state of mind of the worker. It may be humbly pointed out that the various punishments specified in clause (2) of Standing Order 15 can only be awarded for an act of "misconduct". The acts and omissions which constitute misconduct have been specified in clause (3). We have; therefore, to see what is connoted by the term "misconduct". Since the Standing Orders do not define this term but merely state the acts and omissions which are to be treated as misconduct, perhaps it would be of assistance to refer to the dictionary meaning of "misconduct" while considering the nature of the acts and omissions which constitute misconduct. In Ballentine Law Dictionary, Third Edition, "misconduct" has been defined as: "improper conduct; a transgression of some established and definite rule of actions where no discretion is left, except what necessity may demand; a violation of definite law, a forbidden act".
The exception in the definition in favour of what necessity may demand is important and shows that mere infraction of an established rule of action may not always constitute misconduct. If, therefore, a person is prevented by circumstances beyond his control from attending to his duties in an establishment he cannot be said to be guilty of misconduct though his absence may be without leave for a period exceeding ten days. To cite an example, if a workman while proceeding to the place of his duties meets with a serious accident and remains in an unconscious state in hospital for a period of one month or more, can it be said that he has committed misconduct by remaining absent without leave for more than ten days. Without any express words to that effect in the law, I find myself wholly unable to take the view that such should be construed as the intention of the Legislature."
4. In the instant case as already stated, the respondent workman had produced, along with his explanation to the show cause notice served upon him by the management, a certificate, dated 9th August, 1980, issued by Dr. A. Kabir Khan, a Registered Medical Practitioner to the effect that the said respondent was under his treatment for severe Hyper Pyrexia with URT infection and was accordingly advised rest from 24th July to 9th August, 1980. No attempt' was made by the appellant to rebut or controvert this Certificate. The enquiry officer, although he has referred to it in his report, has not cared to discuss its effects and has simply ignored it. There is thus no material on the record which would cast any reflection or doubt upon the contents of the Certificate. Mr. Rizvi, however, sought to show that the certificate was incorrect as according to the statement given by the respondent before the enquiry officer, he had come to the factory of the appellants on 2nd August, 1980, for the purposes of obtaining his Social Security Card for treatment in the Social Security hospital, but as he was unable to get the card, he took private treatment. Mr. Wazir Rizvi argued that if the respondent took the treatment from Dr. Kabir Khan after his visit to the factory on 2nd August, 1980, neither the Doctor could have seen or treated the respondent in between 24th July and 2nd August, 1980, nor could he validly certify whether during this period the respondent was suffering from any disease. The short answer to the contention of Mr. Rizvi is that there is nothing to indicate that before coming to the factory on 2nd August, 1980 the respondent had not seen or consulted Dr. Kabir Khan. If there was any doubt on this point in the mind of the management, the correct course should have been either to require the respondent to clarify as to when he visited or consulted Dr. Kabir Khan or even to make the necessary enquiry from Dr. Kabir Khan himself, which they failed to do.
5. Since the absence of the respondent from his duties for the entire period from 24th July 1980 to 9th August, 1980, was on account of his illness as certified by Dr. Kabir Khan, the absence was obviously for reasons beyond his control. I accordingly would agree with the direction of the learned Labour Court regarding the re-instatement in service of the respondent. There remains the question of the award o full back benefits to the respondent. The respondent, admittedly was absent from his duties for the period from 24th July to 9th August, 1980. There is nothing to show that any leave was due to the respondent. In fact, it was stated at the Bar by Mr. Wazir Rizvi that the record of the leave account of the respondent was produced before the Enquiry Officer and according to that record no leave was due to the respondent. The report of the enquiry officer also shows that this record was produced before him. It was not disputed by Mr. Ch. Rashid Ahmad that even if the respondent had applied for grant of leave and this leave had been sanctioned to him, the leave would have been without pay, as no leave was due to him. Merely because the respondent did not apply for leave he cannot be considered to be in a more advantageous position accordingly I hold that for the period from 24th July to 9th August, 1980, the respondent is not entitled to any wages and the period should be treated as leave without pay. As regards the remaining period for which the back benefits have been awarded to the respondent, I am of the view that 2 circumstances should be taken into consideration while deciding this issue. The first is that admittedly the respondent did not apply for leave. If the respondent throughout the period of his leave had not been in a position to attend the factory his failure to apply may have been condoned, but it is admitted by the respondent that he had gone to the factory on the 2nd August, 1980. Although the respondent went to the factory only for the purpose of obtaining Social Security Card, which incidentally he failed to get, he should have approached the management and submitted a leave application. His failure even on the occasion of his visit to the factory to apply for leave shows a deliberate disregard of the Standing Orders; particularly Standing Order P constitutes the second circumstance against him. In the circumstances, I am inclined to the view that the respondent should be awarded for the period from 10th August, 1980, up to the date of his actual reinstatement in service, 50% back benefits.
6. The appellants have deposited the back benefits awarded to the respondent. After the respondent has been paid the back benefits as awarded by this Tribunal, the balance of the amount deposited should be refunded to the appellant Company.