2. Ex parte decision was given and the reason was that the applicant was served with a notice of enquiry. He did not appear and termination order was sent to him on the last address.
3. Court has heard Mr. Kamal Mansoor Alam for the Pakistan Steel Mill and Mirajul Abedin REASONS:
1. The main question is whether the applicant was absent from duty or he did inform the management of his absence or the enquiry was properly conducted by giving him a notice of enquiry and the date of appearance before the Enquiry Officer.
2. Mirajul Abedin in para. 2 of the notice of grievance has disclosed his defence that he was not well on 14-4-1985. He was at Hyderabad to visit his cousin who met with an accident. He had intimated the Engineer by post. On his recovery, he got the medical certificate and submitted before the Management.
3. Applicant has also produced two annexures which have come before the Court. One is the Medical Certificate issued by Asim Clinic from Latifabad, showing that he was suffering from typhoid fever from 4-4-1985 to 28-5-1985 and there is another Annexure AW/1, to show that Dr.Ahsanul Haq who was the Medical Attendant of Pakistan Steel Mill referred the matter to Medical Board enclosing that letter.
4. Exhs. A/5, A/6, A/7 and A/8 are also shown by the respondent that the record of Mirajul Abedin was not pleasant. He has remained constantly absent and was given warning many times.
5. This is the record of the employment of Mirajul Abedin which is not disputed. No other document is shown that Mirajul Abedin made any representation for the expunction. Therefore, it shall be deemed as the record of unpleasant nature against Mirajul Abedin, against whom admittedly there is a record of chronic absence during his tenure of service.
6. However, the point in issues for the purpose of the case is whether at the relevant time he was absent and made himself guilty of misconduct. Mirajul Abedin has contended that he was not served on the proper address to face the enquiry. In this context certain extracts of the evidence under which his evidence has been impeached that is given prominently.
7. The applicant has stated that his correct address is 0/72, Block VI, P. E. C. H. Society. He had also given the same address in that declaration which is mentioned in the show-cause notice A/2. But at the same time, in the evidence he has stated that this is a rented house which he had left now.
He had not intimated about his change of address. Therefore, he stated that he got this letter of dismissal not on the address but he himself collected it. He did not receive notice of enquiry. He has also further stated that it is not correct that he remained absent from 30-4-1985 to 17-6-1985. In the same evidence Mirajul Abedin has stated further that he had given application for leave supported by the Medical Certificate and produced intimation as Exh . A /3,sent through his were which is dated 15-4-1985.
8. Applicant has also referred the photo copy of the Medical Certificate Exh. A/4.
9. This intimation which is said to have been sent is the Postal Certificate which reads as under: "Application post by under Engineer Electrical Pakistan Steel, Bin Qasim, Karachi
10. After this evidence is read, the Court has referred the show-cause notice dated 30-4-1985 where he is shown absent from duty since 14-4-1985. It is not disclosed in this show-cause notice upto what date he was absent except to show that he remained absent for more than 10 days. The absence report produced by the respondent which is prepare) dated 28-4-1985 shows that he was absent from 14-4-1985 upto 28-4-1985.
11. The second document is the notice of enquiry dated 22-5-1985. In other words the enquiry notice is given on 22-5-1985.
12. The Court particularly refers the dates as relevant for the purpose to find out whether there is any force in the contention of Mirajul Abedin regarding his bona fide.
13. At the same time the Court also refers certain extracts of the evidence of the respondent witness Assistant Manager Muhammad Rehmatullah and points out certain important aspects.
"I cannot produce the application filed in which the applicant communicated his last address C/54 University Campus. The notice was sent under registered post. Applicant was not present on duty. It is correct that Ahsanul Haq is the Doctor of Steel Mill. He does not know whether AW/3 Exh. Shows the signature of Doctor Ahsanul Haq. I see Medical Certificate AW/1/2. I do not know whether this letter was issued by Asim Clinic. I do not know whether this letter was produced before Dr. Ahsanul Haq. I did not make enquiry about Medical Certificate from Chief Medical Officer."
14. Last line of his cross-examination is particularly referred where he has shown that is the month of June and May applicant came and marked the attendance and went away. He has also further stated that it is not correct that he intimated the document about his absence.
15. Then there is evidence of Dr. Ahsanul Haq. He has referred to the letter which is the Medical Certificate. He has admitted that the contents of the certificate show that he was under treatment of the clinic as a case of typhoid fever from 14-4-1985 to 28-5-1985. In the cross---examination, he has also further referred that this is not a bogus certificate but he is not in a position to say that this was a same letter which was enclosed AW/2/1.
16. It is also important to mention here that the letter of which he has shown the ignorance bears his signature, his endorsement. He has not disowned it, therefore, to say that he is not in a position to remember his answer seems to be guarded as not coming forward with the clear picture.
However, the second aspect which is important is that if the postal certificate is admitted then it also goes without saying that on 15-4-1985 the intimation was sent to the Engineer through his were or other person but according to Mirajul Abedin it was through his were.
17. Then it is also worthwhile to mention that if in the month of June and May Mirajul Abedin attended the duty, it is not understood why the letter of enquiry which is issued in May could not be served on him personally to keep him informed of the development. At the same time this Court is also not inclined to accept the version of Mirajul Abedin that he could have been served on the address of University Campus when he himself has said that he did not inform about the change of his address and the last address available in the record was 1704/2 Federal 'B' Area Karachi. The Steel Mill, therefore, in the ordinary course of his service could only serve him on the address which was supplied to the Steel Mill, if no address was intimated. Similarly, Mirajul Abedin if attended during the month of May as admitted by the Assistant Manager, his non-service on person when he was available shows that the service was not satisfactory and the enquiry, therefore, was defective.
18. The second aspect was that Medical Certificate has been shown by the respondent's counsel to be false as according to Assistant Manager there was no such illness. In the first place the Court, does not agree with the Assistant Manager because at the relevant time of illness, he was not present; secondly the enquiry was not on the merits to know B that Mirajul Abedin had pretended leave. Thirdly the Medical Certificate issued from the clinic and the Medical Officer cannot be doubted unless the respondent had the definite evidence that the certificate was bogus.
19. Finally the Medical Certificate if produced before the doctor of Steel Mill, the burden was on the respondent to have made the enquiry to produce the data and to intimate the applicant for going through another test to discredit the certificate of clinic. In the ordinary course of human experience the disease often occurs and the disease of typhoid nature is very serious. Therefore, to presume about the false certificate it will be difficult for the Court to accept the respondent's contention which is simply based on the presumption that because of his previous absence in the record he may have manipulated or arranged the certificate showing his absence. The Court would have further been assisted if the enquiry would have been conducted on merits to know the actual position.
20. In the circumstances, therefore, such as this it is a dispute in the record of the applicant. The enquiry, if the respondent is interested to have the actual facts available could be done by providing opportunity to the defence, otherwise the record available before this Court shows that Mirajul Abedin was well in time to inform the management and it was the management's failure to have called for the report from Medical Board and to pass the appropriate order. However, if the service was not satisfactory, as the Court has observed in the previous paragraphs the impugned order of termination, on the basis of the enquiry report, is not sustainable. He is re-instated. So far as the back benefits are concerned the management either to treat his absence with pay from his earned leave or if used to put him on enquiry, the back benefits should be adjusted in light of the finding.
21. The applicant must have the earned leave due. It can also be treated as leave with pay. If the medical leave is not accepted for want of proper Medical Certificate the management may take other course to decide the matter in that perspective. However, this Court is to add that Mirajul Abedin should also keep his record before him of the D past and avoid such absence which may involve him in the drastic disciplinary result. Regarding notice of grievance this is perfectly in time within 3 months of the cause of action from the date of the notice of grievance. Besides the Court is also of the view that if the order is illegal or void ab initio it is doubtful whether limitation operates.