This appeal by the Habib Bank Ltd. Is directed against the decision of the learned VIIth Labour Court , Sukkur, given on 21st October, 1981, on the grievance petition of the respondent workman challenging his dismissal from service, vide order dated 11th November, 1980. The learned Labour Court , in its decision, has held that as the respondent employee during the relevant time was ill and has produced a medical certificate, which was countersigned by the bank's doctor, the dismissal orders are invalid and has accordingly directed the bank to re-instate the respondent in service with full back benefits.
The admitted facts of this case are that the respondent was employed in the appellant Bank on or about 21st June, 1970. By order, dated 26th September, 1972, he was promoted as a clerk. On 18 March. 1980, the Manager of the Mohani Bazar Branch, Nawabahah, received an application, dated 15th March, 1980, from respondent requesting, for leave, the period whereof was not specified. It appears that on that very date, the Manager of the Mohani Bazar Branch, where the respondent was employed, had seen the respondent standing before the branch and apparently on his report the Assistant Vice---President of the bank wrote to the respondent regarding his being seen by the manager of the bank standing before the bank and infor--med him that the management had taken a serious view of the matter and the branch manager had been instructed to mark him absent and not to pay his salary for the period of his absence. The letter further required the respondent to immediately report to the Assistant Vice---President so that he could be medically checked by the bank's doctor. This letter was followed by another letter, dated 31st March, 1980th from the Assistant Vice-President informing the respondent that he had failed either to resume his duties or to get himself medically checked by the bank's doctor and required him to explain why disciplinary action should not be taken against him for remaining absent without leave. To this letter, the respondent in his reply, dated 9th April, 1980, pointed out that be had been 'seriously ill since 14th March, 1980 and that he was under the treatment of a private doctor, Dr. Shafi Kathore, whose certificate he enclosed with the reply. The respondent also pointed out in his reply that he had been in the service of the bank for over 10 years but had previously never taken even a day's medical leave. He further requested that he may be informed of the date and the name of the doctor before whom he was required to appear for medical check up. The Assistant Vice-President, by his letter, dated 15th April, 1980, informed him that there were 2 doctors on the panel of the bank and required him to call on one of them, namely, Doctor Mustafa Haider Malik, and to submit his report. As the respondent failed to submit the certificate of Doctor Mustafa Haider Malik, the Assistant Vice-President issued a show-cause notice, dated 5th May, 1980, to the respondent. The latter, by his letter, dated 17th May, 1980, submitted his explanation wherein; he has explained that he had gone to see Doctor Mustafa Haider Malik for treatment and check up but as his Clinic was closed, he had contacted the other doctor on the panel of the bank, Dr. Dahri, to whom he had shown the treatment as advised by Dr. Rathore, upon which Dr. Dahri had advised him to continue the treatment prescribed by Dr. Rathore. Alongwith his explanation, the respondent submitted photo copy of the certificate of Dr. Rathore, duly countersigned by the bank's doctor, Dr. Dahri. It was once more reiterated by the respondent that if his record was inspected it would be found that during the period of his 10 years service he had never availed of any medical leave. As the bank authorities were not satisfied with his explanation, the Assistant Vice-President, by. His letter .Dated 3rd June, 1980, required the respondent . To contact the Assistant Vice---President so that he could be medically examined under his super--vision. Apparently, the respondent failed to comply with this direction and hence, the Assistant Vice-President, by his letter, dated 2nd July, 1980, appointed Mr. Nisar Ahmad, an officer of zonal Office, Nawabshah, to hold an enquiry against the respondent, the enquiry officer held an enquiry against the respondent and submitted his report holding the respondent to be guilty of misconduct as he had failed to contact the Assistant Vice-President for being medically checked by the bank's doctor. On the basis of his report and after serving a second show-cause notice on the respondent,, the reply to which was not found satisfactory, the respondent was dismissed from service, vide letter, dated 11th November, 1980
3. The recital of the above facts indicates that this was perhaps the first occasion on which the respondent had applied for leave. Furthermore, the leave was applied for within 3 days of the respon--dent falling sick. The leave application was supported first by the certificate of Dr. Rathore, a private practitioner, and thereafter by second certificate from Dr. Rathore counter-signed by the doctor on' the bank's panel, Dr. Umer Dahri. All these facts are not denied. Even the enquiry officer in his report has held these facts to be estab--lished. Mr. Raes Mushtaq, the learned counsel for the bank, however, sought to argue that as the respondent had remained absent from 15th March, 1980, till November, 1980, without obtaining proper leave, he was not entitled to re-instatement in service. The contention of the learned counsel would have been well founded if ,it had not been shown that the respondent, during this entire period, was unable, on account of his sickness to attend to his duties. It has already been pointed out that initially with his letter, dated 9th April, 1980, the respondent bad submitted medical certificate of Dr. Rathore, a private medical practitioner. , Thereafter, with his letter, dated 7th May, 1980, he had submitted another medical certificate of Dr. Rathore, counter-signed by the bank's doctor, Dr. Umer Dahri. It appears that Dr. Dahri had advised the respondent to continue with the treatment which was prescribed by Dr. Rathore. In the circum- -stances, there is reason to believe that the respondent was prevented on account of his illness from attending to his duties at least until the domestic enquiry was initiated against him in July, 1980. Mr. Raes Mushtaq also invited my attentions to 2 circumstances indicating that the defence of the respondent that he was prevented by sickness from attend--ing to his duties is not well founded. The first of these circumstances is that he was not only seen by the Manager of the branch where he was em--ployed standing in front of the branch, on 18th larch, 1980, as indicated the bank's letter of that date, and as admitted by the respondent him--self, in his letter, dated 9th April, 1980, but further the respondent was seen by several members of the stiff of the bank on the roads during the period when he claimed to be sick, as appears from the letter of the bank, dated 15th April, 1980. As regards the fact that the respon--dent was seen standing before the bank on 18th March, 1980, he has explained that there are medical stores near the bank and he had gone there to purchase medicines. The mere fact that a person goes to purchase medicines which are essential for his recovery cannot lead to a inference that he was fit to attend to his normal duties.
As regards the allegation contained in the letter, dated 15th April, 1980, that he was seen on the roads by the staff' members of the bank, there is no evidence to substantiate this allegation as the members of the staff who are said to have seen the respondent on the roads were not examined in the domestic enquiry. The second circumstance on which Mr. Raes Mushtaq laid stress was that despite the letter, dated 3rd June, 1980, from the Assistant Vice-President of the Bank himself, requiring the respondent to appear before him so that ha could get him medically examined by the bank's doctor, the respondent failed to do so, indicating thereby that the so-called illness of the respondent, was not genuine. It might, however, be pointed out that previous to the issuance of this letter, the respondent had been examined one of the doctors on the bank's panel, namely, Dr. Umer Dahri, and he had countersigned the certificate of the private practitioner; Dr. Rathore, as explained by the respondent in his letters, dated 17th May, 1980 and 26th July, 1980. There was thus no valid reason. For requiring the respondent appear before another doctor of the bank. No doubt, the respondent could have been penalized for failing to comply with the directions of the Assistant Vice-President requiring him to contact the Assistant Vice-President, but the dismissal orders passed against the respondent are not based on any such allegations.
4. For the reasons discussed by me above, I would concur with the view taken by the learned Labour Court that the absence of the respondent from his duties with effect from 15th March, 1980, was due to his sickness and that he had produced adequate evidence, parti--cularly in the form of the medical certificate countersigned by a doctor on the panel of the bank. I would accordingly dismiss the appeal in limine.