AHMED ALI U. QURESHI, J.--The petitioner was a Permanent Workman as Weaver with respondent No. 2. He was granted 45 days leave without pay from 21-4-1979 to 6-6-1979 for proceeding to India. On 2-6-1979, the petitioner, while in India, fell sick. He moved an application for extension of leave but did not get any reply. On 21-6-1979, he moved another application alongwith medical certificate, for extension of leave, but he again received no reply. On 4-7-1979, he reported for duty.
On 5-7-1979, he received a charge-sheet alleging, that his absence from 7-6-1979 to 3-7-1979, was misconduct under Standing Order 15(3). The petitioner replied to the said charge-sheet claiming, that he had remained absent due to circumstances beyond his control. In the domestic enquiry, the Inquiry Officer found the petitioner guilty vide his enquiry report, dated 26-7-1979. After second show-cause notice, and after considering the reply of the petitioner, the respondent No. 2 dismissed him from service vide dismissal order, dated 1-8-1979.
2. The petitioner filed an application under section 25-A of I.R.O., 1969, before the IInd Sind Labour Court at Karachi. The Labour Court, after hearing the parties, allowed the application of the petitioner by reinstating him on service with all back benefits and continuity in service vide its order, dated 5-7-1980. The respondent No. 2 filed an appeal before the Sind Labour Appellate Tribunal, Karachi, challenging the said order of the learned Labour Court. The learned Sind Labour Appellate Tribunal allowed the appeal of the respondent No. 2, and set aside the order of the Labour Court. The petitioner being aggrieved by the said order of the Sind Labour Appellate Tribunal has filed this petition, praying this Court to: "(a) Hold and declare that impugned order, dated 12-1-1981, passed by the Sind Labour Appellate Tribunal is unlawful and of no legal effect;
(b) Set aside the impugned decision upholding the order passed by the IInd Labour Court reinstating the petitioner in service with full back benefits, and
(c) Award any other relief which this Court may deem fit and proper in the circumstances of the case."
3. We have heard the learned counsel for the petitioner, and respondent No. 2 at length, and by a short order, dated 12-8-1985, we dismissed the petition of the petitioner with no orders as to costs.
4. The main argument of the learned counsel for the petitioner is, that the absence of the petitioner was due to circumstances beyond his control, and such absence cannot be considered as misconduct. Secondly, he contended, that the learned Labour Appellate Tribunal has not considered this contention of the petitioner but has erroneously held this order to be an order under Standing Orders Nos. 12(1) and 12(3) and not under Standing Order No. 15 on the ground, that respondent No. 2 did not employ 50 or more workmen in their company.
5. As far the contention No. 1 of the petitioner's counsel is concerned, it may be pointed, that there is no dispute about the fact, that the petitioner has remained absent for the period in question. The only point to be considered is, whether this absence of the petitioner was for the reasons and circumstances beyond his control. In support of his contention the petitioner relies upon a certificate issued by Dr. Shahabuddin of Rampur, India, dated 21-6-1979, which reads as under:-- "It is certified, that Shri Ahmed Nabi son of Shri Ahmed Raza, was suffering from ineffective hepatitis.
He was under my treatment since 1st June, 1979, till to date as he was receiving treatment as well as he became weak. He is advised to have 25 ' days rest w.e.f. 6th June, 1979 till 30th June, 1979."
6. It is a settled law, that medical certificates themselves do not constitute evidence, but have to be proved properly. The learned counsel for the petitioner contended, that it was not possible for a poor workman like the petitioner to summon the doctor from India to prove the certificate in the Lahore Court. On question from the Court he conceded, that he has not examined any medical expert from Pakistan to prove in Court, that as a result of the alleged disease, he could not have undertaken to journey from India to Pakistan. He also admitted, that after reaching Pakistan he did not undergo any clinical test to show, that he was suffering from the alleged disease. Therefore, we have to only rely upon the circumstances surrounding the instant case to come to the conclusion as to whether this certificate could be considered as reliable.
7. It may be pointed out, that the petitioner claims, that he fell sick from 2nd June, 1979, while medical certificate shows, that he was under treatment from 1st June, 1979. Before the Enquiry Officer the petitioner stated that Doctor did not tell him about his illness but told him to continue the treatment. But on 21st June, 1979, on his insistence doctor told him that he was suffering from hepatitis, and issued him certificate, which he sent to the company. He further stated, that he asked for certificate at the time of his first visit to the doctor, but the doctor told him, that there was no hurry about it and, that he will give him certificate.
8. It may also be pointed out that while granting leave to the petitioner the respondent No. 2 had made it clear, that the petitioner will not be granted any extension of leave. In other words, the respondent No. 2 suspected, that the petitioner would apply for extension of leave and the fears of the respondent did come true. If any party claims an exception to the general rule, as petitioner claims in this case, the burden of proving that such exception does exist lies heavily upon him. The medical certificate on which alone the petitioner relies to prove the exception, does not under the circumstances mentioned above, inspire any confidence, specially when it is not properly proved by examining the doctor who issued the certificate. The learned Tribunal was absolutely justified in holding, "that the evidence in inquiry proceedings seems to suggest, that the respondent (petitioner) had failed to establish his contention."
9. The learned Appellate Tribunal further held, that the Standing Order 15 and also Standing Order 12(5) were not applicable to the workmen employed by the establishment of respondent No, 2 as they were not employing 50 or more workmen. It has been further held, that the termination of services of petitioner was in accordance with the provisions of Standing Orders 12(1) and 12(13), and was not mala fide or colourable exercise of powers.
10. Before us it is not contended, that the respondent No. 2 does employ more than 50 workmen, but it was only contended, that petitioner was charge-sheeted under Standing Order 15 And, that the order of dismissal discloses, that he had been removed from service for misconduct. The relevant portion of the dismissal order reads as under:--- "We can dismiss you on the charge, for remaining absent without permission for 10 days, which has been proved against you, but taking lenient view, because of the tenure of your service, instead of dismissing you, your services are terminated with one month's pay in lieu of notice. This decision has been taken for your good, and we are attaching herewith a service certificate, which does not contain any mention of misconduct for which your service is being terminated, so that, you may not have any difficulty in getting other job."
Considering the language of the above order, the view of the learned Tribunal, that this order was in fact an order under Standing Order 12(1) and 12(3) appears to be correct.
We accordingly see no merit in this petition, and dismiss it i., limine with no other orders as to costs.
A.A.