This appeal is directed against the decision of the learned 1Vth Labour Court , given on 20th May, 1982, dismissing the grievance petition preferred by the appellant. Employee challenging the order, dated 19 March, 1981, dismissing him from the, serve of the respondent organi--zation.
2. The facts, which form the background of this appeal, shortly stated, are that by order, dated 11th January; 1977, the appellant was appointed as staff, reporter in - the respondent organization. It was specifically stated in the order of .His appointment that his services would be governed under the Service Regulation of the respondent organization and the Service rules recommended by the A. P. P. It is not known what are the Service Regulations of the respondent organization or the Service Rules recommended by the A. P. P. As these have not been brought on the record of the case. By letter, dated 24th January, 1979, the appellant was informed that he had been transferred to the New Desk Karachi. The appellant, by his letter, dated 27th January, 1979, protested against the said transfer on the ground that in his 15 years journalistic career, he had never worked in the capacity of Sub-Editor and hence it will be wrong to compel him to perform duties for which he was not qualified. Even the A.P.P. Employees' Union (Sinn) supported the protest of the appellant against his transfer to the News Desk and suggested to the management to allow the appellant to continue to perform the work of the Staff Reporter. However, neither the protest of the appellant nor the recommendations of the A. P. P. Employees' Union found favour with the management and hence the transfer of the appellant to the News Desk was .Implemented. Apparently this was the start of the trouble for the appellant. By. Letter, dated 17th September, 1980, addressed to theth Director-General of -the respondent organization, the appellant protested against the harassment and discrimination meted out to him and the non-payment of his legitimate dues including Rest and Recreation allow--ance and Night Transport allowance. The appellant in the said letter made specific grievance of the attitude of the Acting Bureau Chief, Mr. Ali Haider, and the Accounts Clerk and alleged that they were com--pelling him to support the pocket union. Strangely enough the letter also made the allegations that the said 2 officials were threatening him that like the others who were associated with the Executive Committee of the employees' union, he would also be transferred from Karachi. As if the allegation- in the above letter was a sort of a proplesy, by order, dated 20th September, 1980, the appellant was transferred for duty to Lahore and was required to report there on 1st October, 1980, after availing 6 days joining time. Since the grievance of the appellant in respect of the. Payment of his dues was not redressed, he preferred an application under the Payment of Wages Act to the Authority under the said Act and the Authority by its order, dated 2 January, 1981, awarded to the appellant a sum of Rs. 5,850 as Outfit allowance, Night Transport allowance, Rest and Recreation allowance and Annual Increment from January, 1980 to September 1980. It appears that before -the above proceedings were taken, the appellant, by his letter, dated 24th September; 1980, requested for grant of leave but his application was rejected. It may be pointed out that neither the appellant's applica--tion nor the order of rejection of leave are on record. A second application for grant of leave. Dated 24th November, 1980, was submitted by the appellant, but this application, though it appears to have been accompanied by a certificate from a Medical practitioner, was rejected on the ground that the appellant had been directed by the letter, dated 5th November, 1980, to appear before Dr. Usman Ghani Sheikh, a Medical Practitioner on the penal of the respondent organization, for a second opinion, but the appellant did not appear before him andas such tried to avoid his transfer to Lahore. In the meanwhile on 22nd January, 1980, a charge-sheet was served upon the appellant. The charges against the appellant were, firstly, that he evaded his transfer to Lahore by submitting medical certificates ; secondly that he refused/ failed to comply with the direction of the Management to appear before the organization's' Medical Officer, Dr. Usman Ghani Shaikh, for second opinion ; and thirdly, that he -had remained absent from his duties for a period exceeding 10 days. A domestic enquiry based on the above charges held by Enquiry Officer, Mr.' M. M. Ashraf. The appellant submitted a lengthy written statement, dated 15th January, 1981, to the Enquiry Officer denying the charges against him.
The enquiry proceedings were held on 19th January, 1981. In spite of the detailed written statement submitted by the appellant, the Enquiry Officer commenced the proceedings by asking a number of questions from the appellant suggesting doubts about the veracity of the statement made by the appellant in his written statement. The only other witness examined by the Enquiry Officer was Masood Sattar, President of the A. P. P. Employees' Union, (Sinn) who appeared as a defence witness and claimed that the charges against the appellant were baseless. No witness on behalf of the Management appears to have been examined by the Enquiry Officer, but arguments were heard by the enquiry officer of both the sides. The Enquiry Officer by his report, dated 2nd February, 1981, held the charges of disobedience of the Management's order of transfer to the appel--lant to proceed to Lahore and the directions to appear before the A. P. P.'s Medical Officer as having been duly established. There is neither any discussion about the third charge, i. e. Absence from duties for a period exceeding 10 days, nor any finding has been given by the Enquiry Officer in respect of this charge. On the basis of this report, a final show-cause notice was given to the appellant. It may be pointed out here that though the Enquiry Officer had not said anything about the alleged absence of the appellant from his duties for a period exceeding 10 days, the second show-cause notice assumed that all the charges, including absence from duties for a period exceeding 10 days, had been duly established against the appellant. The appellant by his letter, dated 10th March, 1981, submitted his reply to the second show-cause notice but this apparently did not find favour withnd the Management and accord--ingly the appellant was dismissed from service by order dated 19 March, 1981
3. The learned Labour- Court rejected the appellant's prayer for cancellation or setting aside of the order, dated 24th January, 1979, transferring him to the News Desk on the ground that this grievance was time-barred. The learned Labour Court also rejected the prayer of the appellant for cancellation of his transfer to Lahore on the ground that the appellant had not submitted any grievance notice against his transfer and that further he had admitted in his evidence before the Court that he bad made no objection in writing to his transfer to Lahore. As regards the third allegation, namely, failure or refusal on the part of the appellant to appear before the respondent organization's Medical Officer for second opinion the view taken by the learned Labour Court was that though this action on the part of the appellant did not by itself amount to a wilful disobedience or insubordination of the lawful order of the Management which will constituted misconduct for the purposes of the Standing Orders, it prima facie indicated that the appellant was under the wrong impression that by submitting a medical certificate from a private Medical Practitioner he was entitled for the grant of leave as a matter of right.
4. I have already referred to the fact that neither there appears to have been any evidence before the Enquiry Officer that the appellant had absented from his duties for more than 10 days nor has this charge even been considered or examined by the Enquiry Officer. As such, this charge cannot be taken into consideration against the appellant. So far as the charge of failure to appear before the Medical Officer of the respondent organization is concerned, the finding of the learned Labour Court itself is that this does not constitute misconduct for the purposes of the Standing Orders as it does not amount to a wilful disobedience or insubordination of the lawful order of the Management. It may be pointed out that even the witness of the respondent organization, Saleem Alvi, has admitted that they did not doubt the correctness of the medical certificate submitted by the appellant but under the Medical Rules of the A. P. P. They wanted that the appellant should be examined or certi--fied as such by the doctor on their panel. The enquiry officer in his report also has not doubted the genuineness of the medical certificates furnished by the appellant but has held the appellant guilty of the charge of disobedience of the lawful order by not appearing before Dr. Usman Ghani Shaikh on the ground that there. Is a rule in the A. P. P: that all medical bills in respect of treatment from doctors other than the A. P. P.s' Medical Officer have to be countersigned by the latter. Apart from the fact that the Rules in --this behalf have not been produced, the failure on the part of the appellant to appear before the organization's doctor would render him ineligible for reimbursement of the medical charges and the bills for medicines but would not make him guilty of disobedience of lawful order of a Superior under the Standing Orders, as rightly held by the learned Labour Court.
5. There remains the charge whether the appellant disobeyed the lawful order of his transfer .From Karachi to Lahore and thereby committed misconduct entailing dismissal from service. It is not disputed by the appellant that the management was within its right to transfer him from Karachi to Lahore though he has attempted to characterise this action of the management as being another instance in the chain of unfair acts heaped upon him. Furthermore, during the Course of arguments before this Tribunal, Mr. Tariq Ali; after consulting the appellant, made a categorical statement to the effect that the appellant does not challenge his transfer to Lahore and that if he is reinstated, the appellant would be willing to proceed to Lahore to take up his assignment there. Itth was, however, contended by Mr. Tariq Ali that the appellant was prevented by circumstances beyond his control from proceeding to Lahore to take up his assignment there and hence he cannot be said to have wilfully or deliberately disobeyed the orders of his transfer to Lahore. In support of his contention, the learned counsel relied upon the 2 certificates issued by Dr. Anzaruddin Siddiqi, a Private. Medical Practi--tioner. The first certificate issued by him is dated 3rd October, 1980 and is to the. Effect that the appellant was suffering from Hepatitis with Breathless on exertion, and was accordingly advised complete rest and treatment from 1st October, 1980 to 30th October, 1980. The second certificate of Dr. Anzaruddin Siddiqi is dated 1st November, 1980, and is in addition to his earlier certificate of 3rd October, 1980. In his subsequent certificate, Dr. Anzaruddin Siddiqi has certified that the appellant has not yet recovered from his illness of Hepatitis with Breathlessness on exertion, and was accordingly advised rest and treat--ment from 31st October, 1980 to 30th November, 1980 for complete recovery. As already indicated, the genuineness of these 2 certificates have not been challenged by the Management as admitted by the respondent's witnesses, Saleem Alavi, and as also indicated in the Enquiry Officer's report. However, in order to further clear up the point whether the appellant was not in a state of health to proceed on transfer to Lahore, Dr. Anzaruddin Siddiqi was summoned and examined as a witness before this Tribunal.
He has testified that the appellant was his patient that he took treatment from him and that he found the appellant suffering from acute Hepatitis with Breathlessness on exertion. The doctor has testified that he had advised him complete rest from 1st October, 1980 to 30th November, 1980 and that during this period he had been seeing the appellant regularly and the appellant was report-- ing to him about the condition of his health. It is clear from the evidence of Dr. Anzaruddin Siddiqi who is a Specialist in Tuberculosis and Chest diseases, that the appellant was suffering from a serious disease which prevented him from performing the duties and proceeding to c Lahore to implement the orders of his transfer. Mr. Masood Mirza, the learned representative for the respondent organization, has challenged the bona fides of the appellant on the grounds, firstly,.
That the action of the appellant is seeking to avoid to proceed to Lahore even before his alleged illness, and further his act in refusing or at least failing to appear before Dr. Usman Ghani Shaikh indicated that the appellant deliberately disobeyed the orders of his transfer to Lahore and hence the charge of disobeying the order of transfer to Lahore has been established against him. The appellant was directed to report for duty at Lahore on 1st October, 1980 after availing of 6 days joining time. It has been established from the evidence of Dr. Anzaruddin Siddiqi, who impressed me as being a very conscientious person, that from 1st October, 1980 to 30th November, 1980, the appellant, by reason of his illness was- unable to proceed to Lahore to. Take up his assignment there. The mere fact that the appellant was not happy at his transfer to Lahore and tried to avoid the same, if possible, by making repre--sentations to the authorities and asking for long leave does not mean that the evidence of Ansaruddin Siddiqi about the illness of the appellant and his physical inability to proceed to Lahore should be disregarded. Furthermore, the conduct of the appellant in protesting against his transfer and showing his protest by asking for long leave, which incidently was rejected, must not be considered to insulation but should be weighed in the balance alongwith certain actions of the management which possibly made the appellant feel that he was being victimized. I have already referred to the protest letter of the appel--lant regarding his transfer from the post of Staff Reporter to the News Desk and his second protest letter about the non-payment to him of his dues. The appellant had ultimately to resort to the Payment of Wages Authority which by its order, dated 2nd January, 1981, awarded a sum of Rs. 5,850 to him. This indicates that the manage--ment too has its share of blame. In any case, as the appellant was prevented on account of his sickness from implementing. The order of his transfer, I am of the firm view that the third charge also is not establish--ed against him.
6. For the reasons discussed by me above, I would set aside the order of dismissal of the appellant and would direct that he be rein--stated in service, provided that he proceeds to Lahore and takes his assignment there within a period - of 15 days from the date of this order. If the assignment to which the appellant was being previously sent by the . Management is not -available, it will be open to the Management to provide him with an equal assignment. There remains the question of the' claim of the appellant for the award of back benefits. Although the action of the appellant in failing to appeal before Dr. Usman Ghani Shaikh does not constitute misconduct for the powers of the Standing Orders, it does indicate a defiant attitude on the part of the appellant and his disregard for the directions of the Manage--ment, Furthermore, there is nothing to indicate that after he had recovered from his illness of Hapatitis with Breathlessness on exertion, the appellant had shown his willingness to proceed to Lahore to take up his assignment there. On the contrary, in his grievance petition, he has not only challenged the orders of his transfer to Lahore but also his transfer from the post of Staff Reporter to the News Desk. In the circumstances, I am of the view that he is not entitled to back benefits.