DECISION ' This is an appeal against the order of learned Presiding Officer, Sind Labour Court No,IV at Karachi, dated 31-8-1986, whereby he allowed the grievance petition of the respondent.
2. The brief facts of the case arc that the respondent admittedly was a workman employed with the appellants. He is said to have remained absent without leave from 14-4-1985. A show-cause notice dated 30-4-1985 was sent to him by registered post on his last known address, but, no reply was received. Consequently an Enquiry Officer was appointed, who also sent notice of the enquiry by the registered post to the respondent. The respondent did not participate in the enquiry which was held ex parte and on the basis of the report of the enquiry officer, the services of the respondent were terminated. After serving grievance notice, the respondent filed grievance petition before the learned Labour Court.
3. I have heard Mr.Kamal Mansoor Alam, the learned Advocate for the appellants and Mr.Shafique Qureshi, the learned Counsel for the respondent.
4. The main ground on which the learned Labour Court has allowed the grievance petition of the respondent was that there was no proper service of notice on the respondent and that he had properly explained his absence for the period, in question, for which he had also sent an intimation to the appellants and produced medical certificate.
5. Admittedly there is no evidence to show that the notice was served upon the respondent in person. He has however admitted in his cross-examination that the address in the show-cause notice is the same which he had given in the declaration form when he joined the service of the appellants. He has further admitted that he had shifted from this address, hut, had not intimated the appellants about change of the address. Mr.Kamal Mansoor Alam, the learned Advocate for the appellants has submitted that the show-cause notice as well as notice of the enquiry had been sent on the address of the respondent, available with the appellants and the same had also been pasted on the Notice Board, therefore, the service of the notice would be deemed to be proper. In support of his contention, he has relied upon the case of Dawood Cotton Mills Ltd. v. Guftar Shah and another and Fazal Shafiq Textile Mills Ltd. v. IV Sind Labour Court and another reported in PLD 1981 SC 225. Their Lordships have held therein that the Industrial Relations Ordinance, 1969, does not prescribe any particular mode of service but only requires person affected to be informed by any mode. Service by publication in newspapers is usually resorted to where number of persons is indeterminated or their identity is not obvious or service in ordinary mode is not possible due to fraud of one of the parties. A person, against whom action proposed to be taken, impeded actual service of notice by his own negligence cannot be heard to complain of not having been actually served. Workman also correspondingly being under obligation to keep management informed of his whereabouts, failure to do so amounts to impeding obligation of management to afford him opportunity of being heard and workman cannot complain of decision having been taken in his absence". In view of this observation of their Lordships, the service upon the respondent, under the present circumstances of the case cannot be considered to be not in accordance A with the provisions of the Industrial Relations Ordinance, 1969. This objection of the respondent is against the enquiry and subsequent order of termination of services is, therefore, not tenable.
6. Mr.Shafiquc Oureshi, the learned Advocate for the respondent has relied upon the decision of this Tribunal in Appeal No,Kar-291 of 1988, decided on 111-1989, but, the facts of the said appeals are distinguishable. In that case the service was made on the union and not upon the workman, or on his authorized agent and further the charge-sheet was served upon him after about 3 months of the alleged misconduct. This decision, therefore, does not help the respondent.
7. It is not disputed that the respondent had remained absent from 14-4-1985 to 30-4-1985, when a show-cause notice was issued to him. In fact the attendance register produced before the enquiry officer shows that after 14-4-1985, he has signed the muster roll for the first time on 27-5-1985. It is alleged by the respondent that he has sent application for leave under postal cover. He has produced Photostat copy of the postal cover before the learned Labour Court as Exbt.A/3. He has also produced his medical certificate Exbt.A/4, hitch is dated 26-5-1985. It shows that he was under treatment from 14-4-1985 upto 28-5-1985. According to the respondent, he had gone to Hyderabad, where, on 14-4-1985 he fell sick and continued to be treated by a doctor at Hyderabad.
Medical Certificate seems to have been issued by Asim Clinic, Latifahad, Hyderabad. The respondent has in his grievance petition stated in para 2 that he fell ill on 14-4-1985 at Hyderabad where he had gone to sec his cousin and that he intimated the Corporation by post and informed the appellants that he will submit medical certificate at the time of joining his duties. This would show that he had sent the intimation by application from I Iyderabad, whereas, the Photostat copy of the postal certif. Ate shows that it was issued from Experimental Post Office, Federal 'B' Area, Karachi. It only shows the name of the addressee as Executive Engineer, Pakistan Steel, but, does not show the name of the sender. The copy of the application or intimation alleged to have been sent through the postal certificate has also not been produced. The appellants had denied to have received any such application or intimation. In his cross-examination, the respondent, however, stated that he had sent this intimation through his wife. It does not appeal to reason that his wife would come from Hyderabad to Karachi only to post this application from Karachi. Furthermore he stated in cross examination that his correct address is P.E.C.H. Society, Karachi, though admittedly his address with the appellants is of Federal 'B' Area on which address show cause notice was sent to him. All these contradictions make it highly doubtful that any intimation or application was sent by the respondent under postal cover.
8. Even, if he had sent intimation, that would not be sufficient unless he is able to prove the reason for the absence. For that, he has relied upon the Photostat copy of the Medical Certificate which is Exh. A/4. As pointed above, this medical certificate issued by some Doctor at Hyderabad shows that the respondent had remained under treatment from 4-4-1985 to 28-5-1985 as a case of Typhoid. This certificate is also not above suspicion The Doctor, who has issued the certificate has not been examined. This certificate does not bear the signature of the patient viz., the respondent in whose favor it was issued. This certificate shows that the respondent was under treatment up to 28-5-1985, whereas the certificate was issued 2 days earlier on 26-5-1985. In other words this certificate has been issued in anticipation by the Doctor. This certificate is further falsified from the fact that though the respondent is said to have remained under treatment up to 28-5-198 but, the muster roll of the appellants at Karachi shows that the respondent had signed it on 27-5-1985. The respondent in his cross-examination has admitted that he has signed the muster roll. It is not possible for a person lying ill with Typhoid at Hyderabad to have signed the register at Karachi on a day when he was still allegedly lying ill. The possibility that this certificate may have been issued by anybody on the letter-head of Asim Clinic, cannot be ruled out in view of the above circumstances and in view of the fact that the respondent has not proved the medical certificate by examining the Doctor who had issued it.
9. The attendance register further shows that even after 27-5-1985, the respondent remained absent up to 9-6-1985. .In the month of June, 1985, he attended only for 3 days viz., 9th, 10th and 23rd of June, the appellants also produced before the learned Labour Court a show-cause notice issued earlier to the respondent for remaining absent on various dates, Exh. A/6. However, these absence were regularized vide orders, Exhs.A/7 and A/8 and the respondent was warned to desist from the practice of remaining absent without authority. There is no specific allegation of victimization by the respondent nor he has led any proof of victimization. Under the circumstances, impugned order of termination of services cannot be considered as illegal liable to be set aside by the learned Labour Court under section 25-A, 1.R.O.1969.
10. Mr.Shafiq Qureshi, the learned Advocate for the respondent has submitted that the order was not passed by the competent authority. It is a question of fact but no such plea was raised by the respondent either in the grievance notice or in the grievance petition, therefore, at this stage on the basis of evidence on record, this Tribunal cannot hold that the impugned order of termination of services of the respondent was not passed by any competent authority.
11. In view of the above discussion, I allow the appeal and set aside the impugned order of the learned Labour Court.
12. Before parting, I may point out that though the order of termination of service was perfectly legal and cannot be set aside on the ground of illegality, still the respondent has been reinstated in service by the appellants as a result of the impugned order passed by the learned Labour Court and he has remained in service for about 2 years after such reinstatement. If his services have been found satisfactory, the management may consider the desirability of continuing him in service on compassionate grounds without the payment of back benefits.