DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, II, Karachi, dated 29-11-1988, whereby the grievance petition of respondent No,.12 was allowed and she was ordered to be reinstated in service with full back benefits.
2. The brief facts of the case are that respondent No,2 was admittedly employed as workman by the appellants as Telephone Operator. On 28-12-1985 a `show-cause notice' was issued to her wherein it was alleged that she remained absent from duty without intimation or application from 18-12-1985 therefore, she was guilty of misconduct under Standing Order 15(3)(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the 'Ordinance). After domestic enquiry she was dismissed from service by letter, dated 2-4-1986. Aggrieved by this dismissal order, after service of grievance notice upon the appellants respondent No, 2 filed grievance petition before the learned Labour Court which was allowed in the above terms.
3. I have heard Mr. Rehan Aqeel, Advocate for the appellants and Mr.Ch. Rashid Ahmad, Advocate for the respondent No,2.
4. The respondent No,2 has been dismissed for allegedly committing a misconduct under Standing Order 15(3)(e), which reads as under:- "Habitual absence without leave or 'absence without leave for more than 10 days'."
It will be pertinent to note that the words used are 'more than ten days' which signify that the employee should have remained absent without leave for at least for eleven days. This phrase cannot be interpreted to mean that even if she remained absent for one hour after ten days, the misconduct would be complete in view of the word 'days' used in the aforesaid provision. On 28-12- 1988'when she was charge-sheeted she had no doubt remained absent for ten days but the eleventh day required had not been completed. Therefore on 28th she could not be said have remained absent for more than ten days. Admittedly there was some dispute between the parties with respect to the claim of the respondent No, 2 for Telephone Operating Allowance, for promotion and for over-time allowance for which she had admittedly filed grievance petition before the Labour Court prior to the date of charge-sheet. It is submitted by Mr. Ch. Rashid Ahmad and I think with some justification this haste in charge-sheeting the respondent No,2 indicated animosity and of the management viz. Appellants towards the respondent.
5. The respondent No,2 claims to have fallen seriously ill and to have intimated the Manager on telephone through her cousin. No doubt this cousin has not been examined by the respondent either before the Enquiry Officer or before the learned Labour Court, but this question was put to the witness of the appellants Mr. Wajih Ahmad Khan, who was Deputy Manager (Administration) but he had denied that the respondent had informed him on telephone about her illness. He has also produced a Medical Certificate Annexure 'A' which was produced by the respondent before them.
This Medical Certificate is dated 21-12-1985 and is issued by Dr. (Mrs.) Razia Ghulam Abbas who has certified that respondent No,2 was suffering from a severe attack of infective hepatitis and she was treated by the doctor who advised her rest from 18-12-1985 to 8-1-1986. This certificate does not appear to have been produced by the appellants before the Enquiry Officer. The Enquiry Officer Mr. Basit Hussain has admitted in the cross-examination that the leave application of the applicant submitted by the respondent No,2 to the management was not put up by the management before him during the enquiry. The fact that the medical certificate was produced by the witness for the appellants clearly shows that the respondent No,2 had produced the medical certificate obviously with some application before the management but these papers appear to have been withheld from the Enquiry Officer.
6. Admittedly no defence witnesses were examined before the Enquiry Officer. The respondent claims that she was not allowed to examine defence witnesses which fact is denied by Mr.Basit Hussain who alleges that he had given opportunity but she failed to produce defence witnesses. He also denied that he did not allow her the assistance of co-worker but the record of enquiry shows that the respondent did not have assistance of co-worker and she did cross-examine the witnesses herself. Mr. Rehan Aqeel has attacked the authenticity of the certificate on the ground that it was issued on 21-12-1985 but it was obtained by the respondent later and she did not produce it before the management within 11 days. No provision has been shown under which it was mandatory for the respondent to produce a medical certificate within 11 days. Even if the medical certificate was produced later it was produced at least before enquiry and the management should have considered. It and may have even rejected if they found valid reason for the same. The doctor has given Registration Number and Medical Certificate Annexure 'A' is on printed pad of the doctor whose telephone number is also mentioned therein. The evidence does not show that the management took care even to inquire from the doctor on telephone about the correctness of the certificate. Mr. Ch. Rashid Ahmad has submitted and I think with some justification this attitude of the appellant also shows that the management had decided to remove the respondent No,2 because of earlier dispute. He, therefore contended that the enquiry held by the management cannot be considered as an independent enquiry as envisaged under Standing Order 15(4).
7. Mr. Rehan Aqeel has relied upon decision of this Tribunal in the case of Pakistan Steel Mills Corporation Ltd. v. Mirajul Abedin 1989 PLC 558, in which medical certificate produced by the employee was considered suspicious in absence of examination of doctor because in that case the certificate was issued on 26-5-1985 which showed that the employee was under treatment of doctor from 14-4-1985. To 28-5-1985. It was held by this Tribunal that this certificate shows that the respondent was under treatment upto 28-5-1985 whereas certificate was issued two days earlier on 26-5-1985 in anticipation by the doctor that the employee would remain under treatment upto 28-5-1985 and therefore it was held suspicious and in such case examination of doctor was considered necessary. In the case of Taus Khan v. M/s. Wellcome Pakistan Ltd. And others 1986 P 1.C 352 a learned Division Bench of Sindh High Court at Karachi observed that 'absence without leave for more than ten days would he misconduct'. In that case the employee had remained absent from duty for 35 days and he was held to be guilty of misconduct. Reliance was also placed on the case of Ahmad Nabi v. Sindh Labour Appellate Tribunal and another 1986 PLC 42 wherein learned Division Bench of Sindh High Court had observed that `Medical Certificates by themselves would not constitute evidence but had to be proved in accordance with law.' However, in that case medical certificate was obtained from outside Pakistan and the employee had not got himself examined by the medical expert to prove that he could not undertake journey to Pakistan due to specific disease, and did not undergo any clinical test, after reaching Pakistan to show that he was suffering from alleged disease. In that case also the employee had remained absent from duty from 7-6-1979 to 3-7-1979, which was definitely more than ten days. In the case of Abdul Haque v.
Fauji Sugar Mills 1985 PLC 560 employee had remained absent without leave from 11-12-1977 to 16- 2-1978 and he was held to be guilty for misconduct.
8. In all these cases employee had remained absent for more than ten days and under the circumstances of those cases misconduct was proved against them. However, in the instant case the respondent had remained absent from 18-12-1985 therefore, when she was charge-sheeted on 28-12-1985 the respondent had remained 'absent for ten days' but she could not be said to be 'absent for more than ten days'. In view of the circumstances of the case and the relations between the parties at the relevant time, neither the enquiry appears to be fair and proper nor the charge of remaining absent for 'more than ten days' appears to have been proved against respondent No,2.
As such, in my opinion the learned Labour Court has rightly allowed the grievance petition of the respondent. I see no merit's in this appeal which is dismissed accordingly.