DECISION This appeal is directed against the decision of the learned Fourth Labour Court, given on 10th February, 1983, setting aside the orders of dismissal from service of the respondent workman and directing his re--instatement in service with full back benefits.
2. The facts of this case, shortly stated, are that the respondent was employed in the appellant organization as an artisan trainee with effect from 7th December, 1974. 1t appears that he was sent for training abroad for two years for the period from 1975 to 1977. On return from training the respondent was posted to work as artisan and on coming into operation of the Billet Mills, he was posted there under the Operational Incharge, Billet Mills (Operations). It is the case of the respondent that he had developed sciatica pain in his leg which caused backache and hence he used to get treatment for his ailment. The respondent did not attend to his duties with effect from 15th February, 1982. However, on 16th February, 1982, he submitted an application stating that he was ill from the previous day and under the treatment of the Medical Advisor and that he would be attending to his duties when he felt better. As the respondent continued to remain absent and also submitted no medical certificate in support of his plea that he was sick and under the treatment of the Medical Advisor, the Operational Incharge_ of the Billet Mills sent a letter on 23rd February, 1982 to the Medical Advisor, Dr. Soofi, enquiring whether the respondent was under his treatment and if so his probable dates of resuming duty may please be communicated. On this letter, Dr. Soofi made an endorsement which reads as follows : "Mr. Nadeem Siddiqi 030074 was not under my treatment. He came to my dispensary on 15th February, 1982 complaining of sciatica pain when was not suffering and was giving false symptom.
He insisted on medical certificate on which he was referred to Orthopedic specialist Dr. Wazir Shaikh to give his opinion. His opinion was also that he was not suffering from any disease."
3. Since the main issue in the case is whether the respondent was genuinely suffering from sciatica pain or was shamming and malingering, it was considered necessary for the disposal of the appeal to examine Hakeem Mohammad Ali Ayoobi, who is stated to have treated the respondent, as well as Dr. Soofi and Surgeon Wazeer Shaikh, who had examined him. No objection was raised either by Mr. Kamal Manzur Alain, the learned counsel for the appellant, or Mr. S. P. Lodhi, the learned representative of the respondent, to the examination by this Tribunal of the said three witnesses. Hakeem Mohammad Ali Ayoobi stated that he holds a certificate from Tibbi and Unani College Delhi. He admitted that he had retired from practice since five to six years and does not go to his clinic but claimed that, he occasionally sees patients at his house. Tie further, stated that be knows the respondent, who used to be his neighbour, and who used to visit him with complaint about sciatica pain. According to Hakeem Ayoobi, the last time that the respondent came to him complaining of sciatica pain was in the month of February, last year, when he examined him and issued a certificate to the effect that the respondent was suffering from sciatica pain from 15th February, 1982 to 25th February, 1983 and was under his treatment. The cer--tificate issued by Hakeem Ayoobi is, dated 27th February, 1982, one day before the respondent joined his duties in consequence of the notice issued to him to resume his duties Neither in his certificate nor in his evidence before this Tribunal there is any mention of the date on which the Hakeem had examined the respondent: 1f the respondent hail been examined by Hakeem Ayoobi on 15th February, 1982, as claimed by him in his explanation to the show-cause notice and the reply to the notice, dated 24th February, 1982. Requiring him to resume duties, the certificate would have been date(` 15th February, 1982 and further in his application for leave the respondent would have made mention of the fact that he was under the treatment of Hakeem Ayoobi. On the other hand, in his said application he has claimed that he was under the treatment of the Medical Advisor (Dr. Soofi1.
Hakeem Ayoobi admittedly conducted no test for determining whether the respondent was suffering from sciatica pain. According to the Hakeem he came to know that the respondent was suffering from sciatica pain by questioning him and examining and counting his pulse. He admitted that there was no swelling of the face or leg of the respondent and it was only on the information given to him by the patient that he learnt that the patient was having any pain. He further admitted that he had no other method in coming to know that the patient was in pain or agony. As against the vague evidence of this Hakeem there is the positive evidence of two qualified doctors that the respondent was not suffering from sciatica pain or any other disease. I have already referred to the endorsement made by Dr. Soofi on the letter, dated 23rd February, 1982, from the Opera--tional Incharge of the Billet Mills to the effect that neither the respondent was under his treatment nor he was suffering from sciatica pain. In his evidence before this Tribunal Dr. Soofi has reiterated his earlier opinion and stated that on 16th February, 1982 the respondent had come to his clinic complaining of sciatica pain but on examining him he was of opinion that the respondent was not suffering from sciatica pain or any other disease. The doctor based his opinion on the fact that the respondent was able to work normally and his knee action was normal whereas a per--son suffering from sciatica pain is unable to walk and has excruciating pains. Dr. Soofi further stated that as the respondent was not agreeing with his diagnosis and was insisting on a medical certificate and wasting his time he had referred him to Dr. Wazeer Shaikh, Orthopaedic Surgeon. Dr. Soofi added that the respondent had brought a letter from Dr. Wazeer Shaikh after two or three days and in that letter the Surgeon had confirmed his opinion that the respondent was not suffering from sciatic pain and was shamming. Unfortunately this letter of Dr. Wazeer Shaikh could not be produced by Dr. Soofi as according to him that letter has been misplaced and untraceable. The other doctor, Surgeon Wazeer Shaikh, is an Orthopaedic Surgeon and has extensive experience about various orthopaedic diseases and ailments. He has testified that the respondent had been sent to him by Dr. Soofi for examination. He examined him and did not find any positive sign of any ailment whatsoever. He gave a positive opinion that the respondent was not suffering from sciatica pain. He explained that there are certain specific signs which are characteristic of sciatica pain butt none of those characteristic signs were present in the respondent. The evidence of Dr. Wazeer Shaikh in this behalf is as follows:- "There are certain signs which are characteristic of sciatica. The first is that the backache is very severe. The second sign is that the movements of the back are very limited and the patient finds it extremely difficult to walk. The third sign is through the test known as straight leg raising. This test consists of making the patient lie down and raising his leg, while held straight: If the patient is suffering from sciatica pain he cannot raise his leg or at least to much height. The next sign is that in the area of the distribution of the nerve there is loss of sensation due to pressure on the nerve.
The next sign is that the muscles served by the nerve do not respond to external stimuli. I carried out all these tests. They were all negative."
Dr. Wazeer Shaikh asserted that he had sent a report to Dr. Soofi thqt the respondent was not suffering from sciatica pain but stated that he had not kept a copy of that report with himself. The evidence of the two doctors appear to me to be convincing and make it clear that the respon-- dent was not suffering from sciatica pain and had no symptom suggest--ing that he was suffering from such disease. In the circumstances, the absence of the appellant from his duties with effect from 15th February, 1982 to 25th February 1982 appears to have been wholly unjustified.
4. Mr. S. P. Lodhi, the learned Representative for the respondent, sought to rely upon rule 108 of the Sind Factory Rules, claiming that the appellant organization was a factory and the said rules are applicable to the respondent but apart from the fact that it is not established that Hakeem Ayoobi is a registered medical practitioner, being only a Hakeem. His certificate and evidence are effectively contradicted by the testimony of two competent qualified doctors. The evidence of Orthopaedic Surgeon, Dr. Wazeer Shaikh, is particularly convincing and clearly indicates that the respondent was not suffering from sciatica pain but was shamming. Since the evidence on record establishes that the respondent was not suffering from sciatica pain but was nevertheless absent without per--mission from his duties for a period exceeding ten days, he is guilty of misconduct as defined in item (e) of clause (3) of Standing Order 15. 1 would, accordingly, set aside the decision of the learned Labour Court and would allow the appeal.