' This appeal by the Pakistan Tobacco Company Ltd., the appellants herein, is directed against the decision of the learned Ilnd Labour Court, given on 21st November, 1981 allowing the grievance petition made on behalf of Workman, Khan Bahadur, son of Abdul Aziz, and directing the appellant company to reinstate him in service with full back benefits.
2. The facts which form the background of this appeal, shortly stated are that workman, Khan Bahadur, proceeded to his native village Khaik in District Hazara, on sanctioned leave effective from 7th April, 1980 to 5th May, 1980. It is claimed that he fell ill while in his native place, and consequently, he applied for extension of leave from time to time supported by medical certificates. The appellant company granted Khan Bahadur extension of leave upto 16th May, 1980 but as he failed to resume his duties on the expiry of the extended leave, a telegram as well as a letter are said to have been sent to him, at his home address, informing him that his leave had expired on 16th May, 1980 and if he failed to report for duty at once, he would make himself liable for disciplinary action. As Khan Bahadur neither made any reply to the said communications nor reported for duty, a charge-sheet, dated 29th May, 1980 is said to have been sent to him at his home address, along-with the registered letter, dated 1st June, 1980. As Khan Bahadur continued to remain absent from his duties, an ex parte domestic enquiry is said to have been held against him on 8th June, 1980 and on the basis of the report of the enquiry officer, who found Khan Bahadur guilty of unauthorized absence from his duties with effect from 17th May, 1980 he was dismissed from the service of the appellant company, vide order, dated 22nd June, 1980. Khan Bahadur's case, on the other hand, is that he had fallen ill at his native place and he remained under treatment in the hospital upto 9th August, 1980 whereafter he was certified fit for resuming his duties and accordingly he returned to Karachi and reported for duty to the appellant company but he was informed by the appellant company that he was dismissed from service from 22nd June, 1980. Khan Bahadur thereupon served a grievance notice upon the appellant company but as he obtained no redress he brought his matter to the notice of the C. B. A., in the appellant company, which sponsored his case and filed the grievance petition on his behalf on 16th November, 1980.
3. The main ground which has weighed with the learned Labour Court in allowing the grievance petition made on behalf of Khan Bahadur is that it had not been established that the workman was either intimated the rejection of his application for grant of extension of leave or communicated the charge-sheet or date of the holding of the domestic enquiry. It appears from the original application made by Khan Bahadur for tire grant to him of 24 days annual leave, that he had given his home address as village Khaik, P. O. Shergarh, Tehsil Mansehra, District Hazara. The same address had been given by him in his application, dated 17th May, 1980 for extension of leave. This application was rejected by the appellant company on the ground that Khan Bahadur had already been informed, vide the company's letter, dated 22nd May, 1980 that he must resume his duties failing which disciplinary action would be taken against him. However, the telegram, dated 22nd May, 1980, the letter of the same date, the charge-sheet, dated 29th May, 1980 and the letter, dated 1st June, 1980 containing the intimation that the.Domestic enquiry against Khan Bahadur will be held on 8th June, 1980 at 9-00 a.m. Were all sent to village Chak and not to village Khaik, where Khan Bahadur was residing and which is the name of the village given by him in his applications for the grant of extension of leave. It is thus clear that the various letters and intimations sent by the management to Khan Bahadur were sent to the wrong address. No presumption, therefore, can be raised that these letters and communications were received by Khan Bahadur. Moreover, no postman or official from the postal authorities in the Hazara District was examined to establish delivery to Khan Bahadur of the letters and communications sent by the appellant company to Khan Bahadur. In the circumstances, the mandatory requirements of clause (4) of Standing Order 1.5 appear not to have been fulfilled in the instant case. I would accordingly concur in the view taken by the learned Labour Court that the dismissal orders in respect of Khan Bahadur based on a domestic enquiry of which he had no due notice cannot 'be sustained. The dismissal orders were, therefore, rightly yet set aside by the learned Labour Court.
4. Mr. M. A. Khan, the learned counsel for the appellant company while not seriously contesting the position that no proper notice appears to have been given to Khan Bahadur of the domestic enquiry held against him nor was he communicated the misconduct for which he had been dismissed from service, submitted that this was not a fit case for his reinstatement in service as it appears. From the evidence of Khan Bahadur himself before the learned Labour Court that his plea of having been admitted into the Government Hospital at Dhodial from the very beginning, when he applied for extension of leave, is falsified by the medical certificates produced by him. It may be mentioned that Khan Bahadur, in paragraphs 2 and 3 of his affidavit before the learned Labour Court has stated that he went to his village on sanctioned leave effective from 7th April, 1980 to 5th May, 1980 that as he fell ill, therefore, he was admitted into the Government Mental Hospital, Dhodial, Mansehra, for treatment and underwent treatment upto 9th August, 1980 that from the Hospital he had first applied for extension of leave from 5th May, 19 80 to 16th May, 1980 which was granted, but as he did not recover from his illness he sent applications for leave from time to time accompanied with medical certificates. Mr. M. A. Khan submitted that the above averments in the affidavit of Khan Bahadur stand falsified by the Medical certificates. In all 4 medical certificates have been produced by Khan Bahadur. The first is an undated certificate, purporting to have been issued by Dr. S. Amanat Shah, Medical Officer-in-Charge, Civil Hospital, Ojhi, District Mansehra, certifying that he had examined Khan Bahadur who was suffering from lumbago and had advised him complete rest for 15 days with effect from 17th May, 1980. The remaining 3 certificates have been issued by Dr. Muhammad Irfan, Medical Superintendent, Government Mental Hospital Dhodial, Hazara. The first such certificate is dated 2nd June, 1980 and certifies that Khan Bahadur was found suffering from P. U. C. And had been advised treatment and was recommended 3 weeks leave with effect from 2nd June, 1980. The second certificate, which is dated 23rd June, 1980 recommends further 2 weeks leave on medical ground to Khan Bahadur with effect from 23rd June, 1980. The last certificate, which is undated, but mentions that Khan Bahadur had been examined on 9th July, 1980 certifies that he had not overcome the attack of his disease and accordingly was prescribed necessary treatment and advised complete rest for one month. No doubt, as pointed out by Mr. M.
A. Khan, there is a good deal of discrepancy between the averments made by Khan Bahadur in his affidavit and the medical certificates, particularly on the points whether Khan Bahadur took treatment right from the beginning in the Mental Hospital, Dhodial or was first treated in the Government Hospital at Ojhi and thereafter at Dhodial and whether he took treatment in the said Hospital as an outdoor or indoor patient, but the discrepancy in this behalf has been substantially removed in the cross-examination of Khan Bahadur, wherein he stated that he was first admitted in the Hospital at Ojhi and then at Dhodial. No doubt, the 4 certificates produced by Khan Bahadur do not specifically mention that he was admitted in Hospital, but on the other hand, they do not also state that he was being treated as an outdoor patient. It is also not known what type of indoor accommodation, if any, is provided in the Hospital at Ojhi and Dhodial. No question in this behalf was put to Khan Bahadur in cross-examination. As Khan Bahadur appears to be only semiliterate, his cross-examination which was recorded by the learned Labour Court, is to be given greater weight than the statements made in his affidavit, which apparently was drafted by al Advocate.
5. It was next contended by Mr. M. A. Khan that in any case Khan Bahadur was not entitled to wages for the period after 20th May, 1980 when the charge-sheet was issued to him, since, he had no leave to his credit after the said date as testified by the appellant company's Manager (Personnel Department), Muhammad Abid Ansari. As a proposition of law that a worker, who remains aosent from his duties and has no leave to his credit is not entitled tc wages during the period of such absence, no quarrel Lan be found with it, but in view of the order which, I propose to pass in this matter, I do not consider it necessary to deal with this contention of Mr. M. A. Khan.
6. I have held that there was no valid domestic enquiry against Khan Bahadur as he was not informed of his alleged misconduct nor of the holding of the domestic enquiry against him. These omissions, however, would not wash away the alleged act of misconduct on the part of worker Khan Bahadur. In the case of Islamabad Club v. Punjab Labour Court (1), the Supreme Court found that the employee was given notice of only one misconduct yet findings of the enquiry officer covered other matters also. The Supreme Court accordingly agreed with the view taken by the learned High Court that as the dismissal of the employee was based on findings in regard to matters of which the employee had no notice, the dismissal orders were bad and could not be sustained. However, the Supreme Court observed in the above case that if the authorities of Islamabad Club were still anxious to pursue the matter, it would clearly be open to them to resume the proceedings and to offer the employee reasonable opportunity to show cause against the proposed order of dismissal on the grounds found against him by the enquiry officer. It will, therefore, be open to the appellant company if they wish to pursue this matter against Khan Bahadur, to hold a proper enquiry against him in accordance with law and give him a reasonable opportunity of defending himself against the alleged misconduct of Khan Bahadur in remaining absent from his duties without leave and without reasonable cause. The award of back benefits to Khan Bahadur would depend upon the result of any such proceedings taken against Khan Bahadur. I order to avoid the Sword of Damocles banging on the head of Khan Bahadur for an unreasonably long period, I direct that the enquiry, in any, should be commenced against Khan Bahadur within a period of one month from the date of this order. If no such enquiry is held against him within the said period, it is to be assumed that the appellant company has waived its right of holding the enquiry, in which case Khan Bahadur would be entitled to full back benefits as awarded by the learned Labour Court. {{FOOT NOTE}}
(1) PLD 1980 SC 307 {{FOOT NOTE}}