ZULFIQAR AHM AD KHAN, J. This petition impugns order dated 28.06.2005 whereby major penalty of dismissal from the service was imposed upon the petitioner.
2. Concisely, facts of the petition per learned counsel are that on 01.04.1980 the petitioner started her career as Junior Clerk in Sui Southern Gas Company Limited and worked her way up to the post of Deputy Manager (MCU) Distribution Department with dedication and hard work spread over 24 years to the satisfaction of the management. On her request, she was granted 174 days Ex-Pakistan leave for U.S.A. with effect from 19.07.2004 to 08.01.2005. She fell ill in the USA thus could not return back and moved an application on 13.12.2004, seeking 90 days medical leave that too without pay, but she was granted only 29 days leave without pay with effect from 08.01.2005 vide letter dated 24.01.2005, however, she could not come out of her ailment and moved an application for extension of her leave, upon which she was directed to provide Medical Certificate/reports, which she provided. Notwithstanding therewith a charge sheet dated 09.03.2005 was issued along with statement of allegations dated 09.03.2005 and sent to the local address of the petitioner, meanwhile she was also suspended from the service. The petitioner again repeated application along with a medical certificate dated 19.04.2005 seeking extension of leave on account of illness, then she came to Pakistan on 29.04.2005, resumed her duties, filed application for recalling her suspension, which was recalled. Where-after an enquiry was conducted, which was faced by the petitioner, where-after a show-cause notice dated 08.06.2005 was issued to the petitioner, which was too rebutted but her submissions were not considered and eventually the petitioner was dismissed from the service vide dismissal order No.HR(SP)-Exce 2202/71 dated 28.06.2005 (the impugned order). The petitioner preferred representation dated 09.07.2005 to next higher authority i.e. Managing Director but the same was not considered, then she filed Appeals Nos.432(K) (CE)
2005;45/2012 and 61/2013 before the Federal Service Tribunal Camp Office, Karachi but the same was also disposed of.
3. In compliance of this Court's earlier order dated 07.04.2021, through a statement today, counsel for respondents Nos.1 to 3 has brought on surface Leave and Leave Fair Assistant Rules of the Respondents company SSGCL, which form part of Chapter 6 of Internal Documentation/Handbook.
4. With regard to sick leaves, relevant rules are reproduced as under;- 30.00 SICK LEAVE 30.1 In addition to privilege leave all Executives shall be entitled upto 30 days sick leave per calendar year with full remuneration subject to production of certificate from the Company's doctor. Sick leave cannot be accumulated from year to year.
30.2 In cases of protracted illness as Executive should first avail his entitled sick leave, if any, as per Rule 30.1 and thereafter the following procedure shall apply;- i) Then, on the recommendation of the Company's doctor, a three-month "Special Sick Leave" shall be granted with full remuneration. ii) Thereafter a Medical Board shall be constituted to assess the Executive's fitness to continue in service. iii) If the Medical Board is of the opinion that 'recovery can be effected by granting further leave, then the Chief Executive shall sanction "Special Sick Leave" with full remuneration for another period of three months. iv) The Medical Board shall assess the Executive's fitness during the final month of each further three months "Special Sick Leave" period and make its recommendation to the Competent Authority. v) If after 12 months of illness over and above the entitled sick leave period, an Executive is still found unfit for further service, then he may be retired on medical grounds with full terminal benefits as admissible under the Rules. vi) "Special Sick Leave" in respect of Grades VIII and IX, whenever granted by the Chief Executive, will be reported to the Board for consideration and such action as the Board may decide. vii) The grant of "Special Sick Leave" ex-Pakistan to Executives in all grades shall be with the approval of the Board.
5. Per learned counsel for the petitioner the petitioner fell ill in the USA and sought medical assistance from Doctor John T. Browning M.D who through his letter dated 01.03.2005 stated that the petitioner was a patient under his care and she has been diagnosed with Hypertension and allied kidneys problems. Some additional tests were to be performed and she was called to appear for those test on 23.03.2005 in USA. With these ailment, the petitioner sought extension of her ex- Pakistan leave and a letter was issued to petitioner on 25.03.2005 with advise to send medical reports for the consideration of the Chief Medical Officer. Learned counsel for petitioner submits that these reports which are produced with statement on page No.137, were sent where upon the Chief Medical Officer of the respondent's company, observed as under;- "Urinary tract infection and hypertension was of mild severity which was controllable on modest dosage of anti-hypertensive did not merit inability to travel. Moreover, the Medical Certificate of Dr. John T. Browning did not mention any advices regarding avoidance of air travelling. Therefore, leave on medical ground is not justifiable.
6. On these observations of the Chief Medical Officer, while the petitioner was still abroad, she was charge sheeted by letter dated 09.03.2005 under section 3(1)(a) read with section 2(b) of the Removal from Service (Special Powers) Ordinance, 2000 and an Enquiry Officer was appointed.
Page-213 provides conclusion of committee to the effect that after going through the statements of Management Representative, the accused and record, accused had completely failed to produce concrete evidence in support of her contention and mislead the Management by producing a fake medical certificate. Therefore, the charges of unauthorized absence of 110 days was established against her.
7. Per learned counsel, with regard to genuineness of the medical certificate, the said report fails in any concrete term to show that the said Medical report/letter issued by Doctor John T. Browning M.D was fake as no communication in this regard was made with Dr. Browning but based on the aforementioned allegation that the report was fake, the petitioner was awarded major penalty from removal of company's services, where-after eventually she was terminated from service vide impugned letters.
8. The case of the petitioner is that she has been supplying all the information and responding to show-cause notices in a very detail manner, copies of which have been attached but alleging that Dr. Browning's report document was fake, she has been terminated.
9. Learned counsel for petitioner after having seen Sick Leave Rules as reproduced hereinabove submits that the process for seeking medical leave is prescribed in clause 30.00 where at the first instance the petitioner (being an Executive) was entitled for 30 days Sick Leave with full remuneration subject to production of Certificate from Company's doctor and in this case, since she was aboard, she submitted an equally good standing certificate from a duly registered Medical practitioner under the U.S. laws, which document per learned counsel, fully satisfied that requirement. By drawing the attention to the conclusion reached by the CMO as produced at page 137 it was pointed out that Chief Medical Officer did not deny that the petitioner was unwell rather held that these ailment do not stop the petitioner from travelling to Pakistan. Per learned counsel this kind of judgment was unwarranted by Clause 30.1 as no such view could have been formed by the Chief Medical Officer as it was the petitioner's own best judgment that whether she found herself able to travel or not and in all fairness the requirement of medical certificate having been satisfied by submission of the medical report from a U.S doctor, the petitioner should have been granted one month medical leave with full remuneration as per clause 30.1. Not only that, by drawing this Court's attention to the provisions embodied in Clause 30.2 (i) to (v), the learned counsel demonstrated that in fact the company policies very generously provide a mechanism for granting sick leaves to executives where at the first instance 3 months leave could have been granted with full remuneration, even thereafter if the petitioner/executive was still unwell, that leave could have been extended for a further period of 3 months with full remuneration, and at the end of such 7 months, the Medical Board was to check the executives' fitness and give its recommendation to the competent authority for her continuation of service or otherwise, however, in the present case, very first leave application on medical ground was turned down by the Chief Medical Officer without giving any cogent reasons. Learned counsel for the respondents after having been confronted with this position, stated that the company fully complied with the procedure prescribed by these Rules, and since the petitioner did not choose to travel to Pakistan to meet the Chief Medical Officer as mandated under clauses 30.00 and 30.01, her leave application on medical ground was rejected.
10. Heard the learned counsel and perused the material on record. Case of the petitioner is that she was granted 174 days Ex-Pakistan leave for the period commencing from 19.04.2004 to 28.01.2005 thereafter she made an application for medical leave supported by an advice of a US doctor on 13.04.2004 for 90 days leave. However, only 29 days leave was granted with effect from 08.01.2005.
Where-after she still being unwell applied for extension of leave on medical ground on 14.02.2005 for further period of 63 days that too without pay however, that request was declined and the petitioner was directed to send detail report to the medical department to consider her leave without pay. It is an admitted position that prior to that request a letter from Dr. John T. Browning MD dated 01.03.2005 was already on the record of the respondents, thereafter without waiting for any further report from the petitioner she was served with the charge sheet dated 09.03.2005 alleging that her absence from the service was misconduct within the meaning of Section 3(1)(a) read with Section 2(b) of the Removal from Service (Special Powers) Ordinance, 2000 and Chief Manager was nominated as Enquiry Officer for such purpose. In the statement of allegation, the following observations were made:
1. It has been reported that you were granted 174 days ex-Pakistan leave with effect from July 19, 2004 to January 24, 2005 to report for duty immediately. You were also informed that no further extension in your ex-Pakistan leave is possible. You neither reported for duty nor sent any reply to the above letter.
11. The said allegations were answered and medical certificate was submitted by the petitioner for the attention of the medical department through her letter dated 19.04.2005 supported with another letter issued by Dr. John T. Browning dated 19.04.2005. A notice of enquiry was issued on 05.04.2005 where-after show-cause notice was also issued alleging therein that a enquiry officer has recommended to award punishment of dismissal of service to her. The show cause notice was responded to petitioner on 08.05.2005 informing that she has reached Pakistan on 29.04.2005 and resumed duty on the same date notwithstanding therewith she was dismissed on 28.06.2005 through the impugned order rather than considering the documents produced by the petitioner through her physician Dr. John T. Browning conveying a firm message that the petitioner was unwell and being treated in the USA by the said doctor. In our view at this juncture, provisions of Rules pertaining to Sick Leaves come into play as provided under Rule 30.1 where an executive upon submitting a certificate from the company's doctor was entitled to avail 30 days sick leave with full remuneration. We are at loss to understand as to why Chief Medical Officer of the respondents after having been confronted with the medical reports of the petitioner from Dr. John T. Browning MD gave advice that the petitioner can fly to Pakistan for her further treatment. This act of the Chief Medical Officer itself is in excess of the authority given to him by these Rules. In our view, the company had an ample material to act as per 30.1 clause and should have granted 30 days initial leave with full remuneration. Rather than forcing the petitioner to return and join her duties at the peril of her health, the correct procedure as provided by Sick Leave Rules should have been followed by initially giving 30 days leave with full remuneration where there was even an option to avail another three (03) months sick leave under clause 30.2(iii) and a further three (03) months sick leave under clause 30.2(iv), thereafter under clause 30-30.2-v if after 12 months of illness over and above the entitled sick leave period, an executive was found unfit for further service, then he / she may be retired on medical grounds with full terminal benefits as admissible under the Rules. When these Rules were confronted with the learned counsel for the respondents company, he had no satisfactory answers with him. There appears to be a case of sheer hastiness calculated to deprive the petitioner of her valuable rights which she earned by working for more than 24 years with the respondent company and where she proved herself to be a valuable resource. However, when she needed help the most i.e. for medical- purpose she was shown the door. We have no doubt in our mind that the respondents failed to act in accordance with Sick Leave Rules where the petitioner could have been granted upto nine months medical leave with full remuneration rather than having been terminated unceremoniously through the impugned order.
12. In a short span it is the third time that we have seen the respondent entity acting hashly against women workforce. As in the case at hand, while the leave policy fully covered the scenario, the petitioner was terminated in utter disobedience to the Leave Rules. Giving this kind of treatment to women which is struggling to become 25% of national workforce is highly questionable. Pakistan is under international obligations to take effective measures for emancipation of women, equalization of opportunities and social economic condition among women and men aimed to eliminate all sorts of discrimination against women under Beijing Declaration 1995, Platform for Action 1995 and 1998 National Plan of Action for women. Let a copy of this judgment be sent to National Commission on the Status of Women, Ministry of Human Rights Islamabad to initiate an inquiry into the incidents of the dismissal of women workers from the respondent entity SSGCL and submit a report to the Addl. Registrar of this Court in due course for our perusal in the chamber.
13. Under the given circumstances, the instant petition is allowed and impugned dismissal order is set-aside, petitioner is reinstated on her previous post from the date of the order dated 8.06.2005 with directions to respondents to let the petitioner join with all back benefits as per company rules and policies.