' The respondent, who was employed as a helper in the Paint Section of the appellant's Factory at Landhi, applied for and was granted thirty days leave with effect from 12th August, 1979, for going to India for a visit to which country he had obtained the requisite visa. It is the case of the respondent that while in India he had prolong attack of infective hepatitis and hence he submitted applications from India, accompanied by medical certificate of registered doctors, for extension of leave. It appears that he was granted by the appellant-Company extension of leave upto 10th October, 1979 but further extension of leave was refused. On his return to Pakistan, the respondent visited the factory of the appellant-Company for the purposes of resuming duties but he was not allowed to do so and instead he was served with a charge-sheet, dated 16th January, 1980, in respect of his unauthori4ed absence. The respondent submitted a reply to the charge-sheet explaining that his absence from duties was solely on account of his illness while in India, but he was not taken on duty. He filed a grievance petition before the learned Labour Court, which issued an ad interim injunction restraining the appellant-Company from proceeding with the domestic enquiry against the respondent based upon the charge-sheet of unauthorized absence from duties. This Court in the exercise of its suo motu powers of revision, vacated the ad interim injunction granted by the learned Labour Court, whereupon the appellant-Company served the respondent with a notice of enquiry on 13th March, 1980, informing him that the enquiry would be held on 15th March, 1980. It is the case of the appellant-Company that as the respondent failed to turn up for the equiry proceedings on the aforesaid date the enquiry proceedings were held ex parte and on the basis of the report of the Enquiry Officer, who found the appellant guilty of remaining absent without leave for a period exceeding ten days, he was dismissed from service, vide order, dated 20th March, 1980. On the other hand, the stand of the respondent is that on 15th March, 1980, he had appeared before the Enquiry Officer, at 11.30, for the purposes of participating in the enquiry proceedings, but as he asked for the assistance of a co-worker to assist him in the enquiry proceedings, he was asked to come back at 2.30 p. m. And when he returned at the appointed time he learnt that all the concerned persons had left and thereupon he sent a letter to the Management detailing the above circumstances and also sent a telegram to that effect. The respondent challenged the termination of his services before the learned Labour Court which has taken the view that though admittedly the respondent had remained absent from his duties uptill at least 15th January, 1980, his absence was due to his illness and consequently was for reasons beyond his control. It, accordingly, has held the order of dismissal from service of the respondent as invalid and unjustified and has, accordingly, directed the appellant-Company to re-instate the respondent in service with full back benefits the date of dismissal, as admittedly the respondent had received his wages upto 20th March, 1980. The appellant-Company, aggrieved by the aforesaid decision, has come up in appeal to this Tribunal.
2. I have beard Mr. Sulaiman Habibullah for the appellant-Company and Mr. Ashraf Hussain Rizvi for the respondent. It was contended by Mr. Sulaiman Habibullah that there was no tangible evidence to establish that the respondent was prevented by illness from resuming his duties on the expiry of his sanctioned leave, that it had not been established that the respondent had submitted leave applications and medical certificates for extension of his leave and that, in any case, since the respondent had wilfully failed to participate in the domestic proceedings the award of back benefits was wholly unjustified. On the other hand, it was submitted by Mr. Ashraf Hussain Rizvi, the learned counsel for the respondent workman, that it had been established by the respondent beyond any shadow of doubt that only his stay in India and consequent absence from his duties due to his sickness but that further the respondent had submitted, in time to the appellant- Company, applications for extension of leave supported by medical certificates from Registered Medical Practitioners which applications had been duly received by the appellant-Company. The learned counsel further submitted that inasmuch as the respondent's services were wrongfully terminated he was entitled to full back benefits as awarded by the learned Labour Court.
3. The first point, therefore, that falls to be considered in the instant case, is whether the failure of the respondent to resume his duties on expiry of the sanctioned leave up till 10th October, 1979, was entirely due to his sickness. On this point the respondent has produced four medical certificates, two by a registered medical practitioner of the Civil Dispensary, Kaij, in Maharastra and two others from a registered medical practitioner of Bombay. The first certificate is dated 11th September, 1979.
It has been issued by Dr. P. S. Raot medical officer incharge of Civil Dispensary, Kaij. According to it the respondent was suffering from pyraexia of unknown origin and it was accordingly certified that a period of thiry days rest was considered absolutely necessary for the restoration of his health.
This certificate was admittedly received by the appellant-Company and on the basis of this September leave was extended upto 10th October, 1979. The second certificate is dated 10th October, 1979, and like the first certificate, has been issued by Dr. P. S. Raot of Civil Dispensary, Kaij.
According to this certificate the respondent was found suffering from 'infective hepatitis' and it was considered that a period of one more month was absolutely necessary for the restoration of his health. It appears that by this time Dr. Raot had been able to determine the disease from which the respondent was suffering. The third certificate is dated 13th December, 1979 and has been issued by Dr. V. M. Pai, a registered medical practitioner of Bombay. According to the certificate, the respondent was complaining of giddiness and exhaustion and hence was advised complete bed rest for about four weeks with effect from 13th December, 1979. The last certificate is dated 8th January, 1980 and this certificate was also from Dr. V. M. Pai of Bombay. According to this certificate the respondent had a lapse of infective hepatitis and hence it was considered not possible for him to undertake journey until the date of the issue of the aforesaid certificate on 8th January, 1980.
Although the doctors who issued the aforesaid certificates were not produced, they being in India the certificates do indicate that the respondent was suffering from serious disease of infective hepatitis from 11th September, 1979 upto 8th January, 1980 and consequently he was neither in a position to return to Pakistan nor would he have been able, had he somehow returned to Pakistan, to perform his duties with the appellant-Company. It was argued by Mr. Sulaiman Habibullah that the medical certificate are contradictory inasmuch as the first medical certificate issued by Dr. Raot does not even disclose the nature of the ailment from which the respondent was alleged to be suffering, and further the second certificate of Dr. V. M. Pai of Bombay was inconsistent with his first certificate according to which the respondent required bed rest for four weeks. As already explained the first certificate issued by Dr. Raot on 11th September, 1979 was at a time when probably the doctor had not yet been able to determine the ailment from which the respondent was suffering. He was, therefore, honest enough in stating in the certificate that the respondent was suffering from pyraexia of unknown origin and it was only on further examination and treatment that he came to the conclusion that the respondent was suffering from infective hepatitis. There is, thus, no contradiction in the two certificates issued by Dr. Raot. Similarly I find no contradiction in the two certificates issued by Dr. V. M. Pai. No doubt in his certificate, dated 12th December, 1979 Dr. Pai has certified that the respondent required bed rest for four weeks but it appears that on subsequently examining the respondent on 8th January, 1980 he found that the respondent had sufficiently recovered to be able to undertake the journey to Pakistan and, to resume his duties with the appellant.
4. It next falls to be considered whether the respondent had submitted applications for extension of leave, whether these applications were supported by medical certificates and whether these applications and medical certificates were received by the appellant-Company. Although the appellant-Company has taken the plea, in its written statement, that it had not received the applications for extension of leave or the medical certificates enclosed with the same, there is tangible evidence on the record that these applications and medical certificates were in fact received by the appellant-Company. As already pointed out, it was on the basis of the first medical certificate, dated 11th September, 1979 that the appellant-Company had sanctioned extension of leave to the respondent up to 10th October, 1979. Such endorsement appears on the back of the medical certificate which was produced by a witness of the appellants. Furthermore, at page 257 of the record is a letter, dated 22nd October, 1979, admittedly written by the appellant-Company to the respondent. The said letter recites that the respondent was granted extension of leave upto 10th October, 1979 as a special case but his request for further extension of leave upto 10th November 1979 cannot be acceded to. This shows that the respondent's application for extension of leave upto 10th November, 1979 had been received by the appellant-Company. The third application for extension of leave is dated 13th December, 1979 and was sent from Bombay by registered post A/D. The receipt issued by the Bombay Postal Authorities in respect of this letter has been produced and is Exh. C/4 at page 37 of the record of the learned Labour Court. Furthermore, there is evidence of the Inspector, Post Offices, Korangi Sub-Division, Karachi, to the effect that 8 letters were delivered by the postal authorities to the appellant-Company. He has produced the receipts in respect of these registered letters. The receipt not only bear the numbers, borne on the registered letters delivered to the appellant-Company but also the signatures of the persons who had received the registered covers on behalf of the appellant-Company. The receipt produced by him in respect of the registered letter No, 1367 from Bombay, in respect of which the postal receipt issued from Bombay, is Exh. C/4, is at page 371 of the record of the learned Labour Court. According to this receipt, the application of the respondent for extension of leave made from Bombay, on 13th December, 1979, was delivered to appellants on 27th December, 1979. The final application for extension of leave was made by the respondent on 16th January, 1980, when he returned to Pakistan. This is accompanied by a medical certificate issued on 11th December, 1979 by Dr. V. M. Pai of Bombay. It, therefore, appeals that not only necessary applications had been made by the respondent for extension of leave but the applications were accompanied by medical certificates certifying that the respondent was unable to resume his duties and further that these applications and medical certificates had been duly received by the appellant-Company. In view of the above record, and the explanation submitted by the respondent for his inability to return to his duties on the expiry of his sanctioned leave, the charge of misconduct for havin remained absent without leave for a period exceeding ten days clearly was not sustainable and the Enquiry Officer in the appellant-Comp any misconceived the position in holding the respondent guilty of misconduct. It has been held by this Tribunal in the case of Rule Export Corporation of Pakistan v. Ghulam Abbas, decided on 11th May, 1981, that absence without leave, if it is to amount to misconduct for the purposes of Standing Order 15, must involve an element of mens rea or appropriate state of mind and mere absence without leave for a period exceeding ten days simpliciter without mens rea or appropriate state of mind, cannot be considered to be misconduct entailing the drastic punishment provided in clause (3) of the said Order, which includes dismissal. Since the absence from his duties of the respondent was clearly due to the serious ailment which he suffered in India he cannot be considered to be guilty of misconduct under Standing Order 15. I would therefore concur in the view of the learned Labour Court that the dismissal from service of the respondent is whole unjustified and hold that the learned Labour Court has rightly ordered his re-instatement.
5. It only remains to be considered whether the respondent is entitled to full back benefits which have been awarded to him by the learned Labour Court. It may be pointed out that unlike the repeated provisions of section 36-B, I. R.
0., the award of back benefits do not automatically follow the direction to re-instate the workman.
Subsection (5) of section 25-A, I. R.
0., gives wide discretion to the learned Labour Court, while deciding a grievance petition, to pass such orders as may be just and proper in the circumstances of the case. In the instant case, the view taken by the learned Labour Court has been that the respondent failed to take part in the domestic enquiry proceedings on 15th March, 1980 though he had due notice of the same. It is true that the respondent has sought. To show that he had attended before the Enquiry Officer but he was asked to come back at 2-30 p. m. By which time the Enquiry Officer and the witness had left but in support of his contention there is no other evidence excepting the letter and the telegram which he had sent to the Management on that very day. These two documents do not necessarily establish that the respondent had appeared before the Enquiry Officer on 15th March, 1980 or that he was asked to come at 2-30 p. m. By which time the Enquiry Officer had left. On the other hand, there is the evidence of the Enquiry Officer as well as Chowkidars and security guards of the appellant Company that the respondent had failed to turn up at the enquiry proceedings and hence the enquiry on 15th March, 1980 had to be conducted ex parte. Since the respondent had avoided appearing in the enquiry proceedings despite the fact that the ad interim order issued by the learned Labour Court prohibiting the appellant from proceedings with the domestic enquiry against the respondent had been vacated and set aside by this Tribunal, the respondent, in my opinion, would not be entitled to back benefits. I would, therefore, while maintaining the order of the learned Labour Court as regards his re-instatement in service of the respondent, would dis-allow the award of the back benefits to the respondent. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.