DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No, IV at Karachi, dated 24-3-1990, whereby the grievance petition filed by the appellant was dismissed.
2. The brief facts of the case are that the appellant was admittedly employed as workman with the respondents. It is alleged that on 26-12-1987, he obtained one day casual leave, but subsequently in the leave application he fraudulently converted the same to 45 days earned leave with effect from 26-12-1987 to 8-2-1988. He produced Medical Certificate dated 22-1-1988 issued by Dr. Bashir Ahmad, Clinic Main Bazar, Mansoorabad, Faisalabad but on scrutiny it was revealed that the said Certificate was issued to one Abdul Hameed and not to the appellant. For these two acts of fraudulent conduct, the appellant was issued show-cause notice, dated 23-2-1988. Being dissatisfied with the explanation, the management ordered domestic enquiry in which he was found guilty of both the charges. During the course of the above enquiry proceedings, he was issued another show-cause notice, dated 18-6-1988 wherein it was alleged, that he has passed false, filthy and derogatory remarks against officers of factory in his application, dated 31-5-1988. A separate domestic enquiry was held with regard to this charge also and the appellant was found guilty of the charge. Considering the report of both enquiries, the respondent issued dismissal order of the appellant on 11-8-1988. After serving grievance notice upon the respondents, the appellant filed grievance petition before the learned Labour Court.
3. I have heard Ch. Muhammad Ashraf Khan, learned Advocate for the appellant and Mr. Muhammad Humayun, learned counsel for the respondents and have also gone through the record and proceedings of the case.
4. It will be seen, that the appellant was proceeded against on three charges of misconduct and the dismissal order was passed taking in view the reports of Enquiry Officers with respect to all the three charges. In the impugned judgment the learned Labour Court held that the charge contained in the show-cause notice dated 18-6-1988 did not constitute any misconduct under Standing Order 15(3) to warrant dismissal of the appellant on that charge. No counter-appeal or counter- objections were filed against the finding of the learned Labour Court with respect to his finding on the charge contained in the show-cause notice dated 18-6-1988 issued to the appellant. Therefore, this charge does not require any consideration by this Tribunal in this appeal.
5. The learned Labour Court did not give any finding with regard to the charge that the appellant produced false certificate with regard to his alleged illness at Faisalabad. However, the learned Labour Court held the appellant guilty of the charge of fraudulently converting his leave application from one day to 45 days and consequently dismissed grievance application. As appeal is only against this finding of the learned Labour Court I will therefore confine myself to the consideration of this charge.
6. It will be clear from the wording of the charge, that the appellant is alleged to have himself committed the fraudulent act of conversion of the earned leave from one day to 45 days in the leave application. In other words he is alleged to have committed forgery himself in the leave application. Photocopy of this application which is termed as "Absence application" is produced at page 289 in the lower Court's record. It is alleged that in column showing earned leave figure "1" has been converted into "45" and in the column 'To (inclusive)' 8-2-1988 had been written afterwards. It is an admitted fact that this application was taken away from office of the Authority who granted leave to the Administrative Office by the appellant. However, there is no direct evidence to show that this writing or `forgery' in this leave application is in the handwriting of the appellant. No witness has been produced to show, that he saw the appellant making these writings or additions or manipulations in this application nor any witness had identifies these writings to be in the handwriting of the appellant nor have the respondents sent this document to any handwriting expert to obtain his opinion as to whether the writings were in the hand of the appellant. There is only presumption, that because the document was taken by the appellant to the Administration Office, therefore, he would have made these manipulations. The respondent had examined Ch. Muhammad Hussain, Foreman, who states that the appellant remained absent on 26-12-1987 and had submitted application for earned leave for one day i,e, for 26-12-1987 which he recommended to Mr. Junaid Nasir. Mr. Junaid Nasir has also been examined and supports the version of Mr. Muhammad Hussain and further states, that the appellant had deliberately taken away the application from the office and submitted the same directly to the Administration after manipualting figure "1" into "45" in the column and added 8-2-1988 in the column of date and further added a sentence in Urdu{{URDU TEXT}}and further wrote his address in the column of address with mala fide intention. He has further stated that the appellant remained present and worked in the factory on 27 and 28-12-1987 and then remained absent. Even if the evidence of these two witnesses is believed that the appellant had applied for and was granted leave for one day viz. 26-12-1987, still it does not prove that the other alleged manipulations and writings in the leave application were made by the appellant himself. He could at the most have been charged for remaining absent unauthorisedly from 29-12-1987.
7. It may also be pointed out that the appellant 'has produced Annexure 'A' to his grievance petition which is earned leave order No, 3, dated January 9, 1988 issued by respondents. It shows the appellant to be on leave from 26-12-1987 to 8-2-1988. The issuance of this order is not denied by the respondents, but they claim that this was issued by the Administration on the basis of manipulated leave application produced by the appellant before administration. The appellant has also produced Annexure 'E' which is telegram sent to the appellant by the respondents informing him that he had remained absent unauthorisedly and he should resume duty immediately. This bears 'seal', dated 21st January, 1988. The respondents have also produced alongwith the written statement a document Exh. R/1, dated 17-1-1988 which shows that the leave of appellant from 26-12-1987 to 8-2-1988 was cancelled on 17-1-1988. This would show that at least on 17-1-1988 the respondents had come to know about the alleged manipulation and fraudulent act of the appellant. It is, therefore, contended by the learned counsel for the appellant that the charge- sheet/show-cause notice dated 23-2-1988 would be violative of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which requires that the act of misconduct should be brought to the notice of the accused workman within one month from the date he commits the act of misconduct or from the date when the act comes to the notice/knowledge of the employer. It is submitted, that the appellant is alleged to have committed said act of misconduct on 27-12-1987 whereas it came to the knowledge of the employer at least on 17-1-1988 when for that reason the leave of the appellant was cancelled and, therefore, the show-cause notice, dated 23-2-1988 would be time-barred in either case.
8. From the facts and circumstances as discussed above I am inclined to agree with the submission of the learned counsel for the appellant that the charge-sheet was violative of Standing Order 15(4) because the set of misconduct, if any, had come to the knowledge of the employer before 17-1-1988 because otherwise there was no reason for the employer to have cancelled the earned leave sanctioned to the respondent upto 8-2-1988. As such the appellant could not be dismissed on a charge which was brought to his notice after the time prescribed under the Standing Order 15(4) which reads as under:- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman."
9. With regard to third charge viz. Production of false medical certificate I have already pointed out that the learned Labour Court did not give any finding on this charge. A certificate has been produced by the appellant as A/16. It shows that it was originally issued in the name of 'Abdul Hamid' but it again shows that the name of Abdul Hameed was corrected and name of appellant 'Aulad Hussain' was written over the name of Abdul Hameed which correction was signed by the Doctor on 27-2-1988. The name of 'Abdul Hameed' is bracketed and against it is written `by mistake' which writing is also signed by the Doctor. This certificate also bears endorsement 'corrected and verified on 27-2-1988' with seal and signature of Doctor bearing the same date. The appellant in para. 14 of his affidavit-in-evidence has stated that he was under treatment of Doctor Bashir Ahmed who issued the certificate on 22-1-1988 but by shere mistake it was issued in the name of 'Abdul Hameed', which he submitted on 24-1-1988 without checking. He further stated that thereafter he discovered the said mistake and got it corrected and verified by the Dr. And submitted to the respondent company on 28-2-1988. Mr. Muhammad Yousuf Chaudhry who was appointed as Enquiry Officer was examined by the respondents. He has admitted in the cross- examination that he was shown one medical certificate in Court which was photostat copy and was issued by Dr. Bashir Ahmed wherein name of the patient is corrected and produced it as R/1.
He further stated that this Medical Certificate was not produced before him in the enquiry proceedings but P.W. Baloch stated in enquiry that appellant Aulad Hussain had produced before them corrected Medical Certificate of the Doctor himself. I cannot understand as to what the appellant would have gained by producing the certificate issued in the name of somebody else. I, therefore, see no reason to disbelieve him that it was shere mistake. He had produced the original certificate which was duly corrected and signed by the issuing doctor and he admittedly produced the copy before the respondent. It also appears that the respondents did not produce this corrected certificate before the Enquiry Officer and hence Enquiry Officer was mislead in his finding.
Even otherwise production of certificate in the wrong name would not constitute a misconduct as defined under Standing Order 15(3). It cannot be considered as fraud as appellant could not gain any advantage by the production of this Medical Certificate. In my opinion, this charge does not stand substantiated and the opinion of Enquiry Officer has been obtained on this charge by concealing very important evidence viz. 'corrected medical certificate' from the Enquiry Officer.
10. In view of the above discussion I allow this appeal and order the reinstatement of the appellant.
Under the circumstances of the case I award him thirty per cent back benefits. Orders to be implemented within one month.