DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No,III at Karachi, dated 18-10-1990, whereby the grievance petition of respondent was allowed and she was ordered to be reinstated with all back benefits.
2. I have heard Mr. Muhammad Rehan Aqccl, learned counsel for the appellants and Mr. Ali Amjad, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the respondent was admittedly worker employed by the appellants. Since a few years she had not been keeping good health and therefore had to remain on long leave from time to time. Her services were terminated by the appellants vide order, dated 15-2-1989. Being aggrieved by this order, after serving grievance notice upon the appellants, the respondent filed a grievance petition before the learned Labour Court which was allowed.
4. It is contended by Mr. Rehan Aqeel, learned counsel for the appellant that the order of termination of services of the respondent was not due to any misconduct on the part of the respondent but was an order of termination of service simplicitcr in accordance with the provision of Standing Order 12(3) wherein explicit reason for termination of her services are shown. It is further contended that this order is not tainted with mala fide nor it was colourful exercise of power to victimize the respondent and therefore could not be interfered with by the learned Labour Court.
In support he had relied upon certain decisions of the High Court and Labour Appellate Tribunal in the cases of Pakistan Cable Employees' Union and another v. Sindh Labour Appellate Tribunal & Pakistan Cables Ltd. 1981 PLC 589, Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others 1990 PLC 213, Umer Din and 6 others v. M/s. Gulf Airlines 1990 PLC 304. However, before the principles enunciated in the above cases could be applied it has to be seen whether the order of termination of service was strictly in accordance with the provision of Standing Order 12(3).
5. In her grievance petition the respondent pleaded that the order of termination of her services was mala fide, unlawful and without any justification. The termination order Annexure 'A' to the grievance petition shows that she was examined by Dr. M.N. Hussain on 9-1-1989 who was of opinion that she would be allowed exposures of physiotherapy for four weeks for restoration of fitness to take up normal duties. It furthor shows that she was again examined on 23-1-1989 by Dr. Ahmad Ali Shah, who advised her to take physiotherapy for three weeks and after that she must make an effort to return to work but she did not return to work upto date. In the end the order shows that the management had observed from the record of attendance and medical opinion of eminent doctors including certifying Surgeon that she was not fit to be gainfully employed for the job assigned to her which was practically lying vacant for long time since mid-1987.
6. From the above order it would appear that the order was passed because respondent had not returned to duty after expiry of three weeks' physiotherapy as recommended by Dr. Ahmad Ali Shah, and therefore the management came to the opinion on the basis of the record of attendance and opinion of eminent doctors that she was not fit to be gainfully employed. From this order it would be seen that there is an implied allegation of absence without permission and also the allegation that she was unfit for being gainfully employed. Number of Medical Certificates were produced in the case before the learned Labour Court but Mr. Rehan Ageei was not able to point out any certificate where any doctor had given definite opinion that the respondent was unfit to resume the duty after the treatment. She was admittedly examined by Dr. M.N. Hussain, who issued Certificate, Annexure X-11, dated 9-1-1989. This Certificate was issued, was referred by the appellants to Dr. M.N. Hussain by letter No, Exh.X-10, dated 29-12-1988. In this Certificate X-11 which is in the form of letter addressed to the appellants the doctor had opined the respondent was patient of proplapsed inter vertebral disc and had undergone surgical manipulation and was receiving physiotherapy at Agha Khan University hospital and that she had been advised rest for four weeks w,e,f, 2-11989. In the opinion of doctor after the exposures of physiotherapy she should be fit to take up her normal duties. The Certificate of Dr. Ahmed Ali Shah, dated 23-1-1989 referred to in the termination order had not been produced. However one certificate of Dr. Ahmed Ali Shah, dated 2- 1-1989 had been - produced at page 171 of the R.&. Ps of Lower Court wherein he had advised the respondent to take physiotherapy for another four weeks. This Certificate also does not show that after physiotherapy the respondent would not be fit to resume duty.
7. It has been admitted by Mr. Syed Burhan, witness of the appellants, that the respondent had applied for leave on medical ground from 29-1-1989 to 16-2-1989. He has further denied the suggestion that leave was granted to respondent upto 16-2-1989 but admitted that the refusal of leave was not intimated to the respondent. He has further admitted that 17-2-1989 was `Friday' and 18-2-1989 was 'Saturday' and that their establishment maintains two days 'off' i,e, Friday and Saturday. He has further admitted that the respondent did appear in office and desired to be on duty on 19-2-1989 when she was informed that her services had already been terminated. From the evidence of this witness it would appear that the fact that prompted the appellants to terminate the services of the respondent, was her absence from 29-1-1989 in spite of the fact that the leave was not granted to her. This is also manifest from the termination order wherein it is stated though she was advised physiotherapy by Doctor Ahmad All Shah for three weeks from 23-1-1989 and after which she must make an effort to return to work but that as she did not return upto the date, the three weeks recommended by Dr. Ahmad Ali Shah would expire on 14-2-1989. However; on 9-1-1989 as pointed above she was also referred for examination to Dr. M.N. Hussain who also opined that after rest and physiotherapy for four weeks w,e,f, 2-1-1989 she would be fit to take up her normal duties. Admittedly the respondent had been granted leave on medical ground upto 28-1-1989 and that she applied for further leave from 29-1-1989 to 16-2-1989. In view of the aforementioned medical certificates, which were issued on the references of the appellant, it was unfair on the part of the appellant to refuse leave on medical ground. Furthermore Standing Order 8(2) requires the employer that refusal should be communicated to workmen on his/her postal address available with the management. The action of the appellants to refuse leave on medical ground when the respondent was admittedly undergoing medical treatment and their failure to communicate the refusal to the respondent and then the termination of her services on 15-2-1989 viz. During the period for which the respondent applied for medical leave, does not appear to be an act done in good faith. This bad faith is also manifest from the fact, that though the appellant admittedly did not communicate the refusal of the leave to the respondent, still one of the reasons shown in the termination order is that she failed to resume duty after the period of physiotherapy of three weeks advised by Dr. Ahmad Ali Shah vide his certificate, dated 23-1-1989 had expired. If all these facts are taken into consideration it would be clear that the real reason for termination of respondent was absence from duty after the expiry of leave on 28-1-1989, which would be misconduct as described in Standing Order 15(3). Under the circumstances this order of termination could he considered to be an order of termination of service simpliciter so as not to require enquiry as envisaged under Standing -Order 15(4). Furthermore this order also contains misstatement in the sense that medical opinion was that the respondent was not fit to resume duty whereas medical certificate produced on record shows that she was lit to resume duty after physiotherapy. Such termination order cannot be considered as bona fide so as to attract- the principles laid down in aforementioned cases.
8. Word `mala fides' has been defined in the Black's Law Dictionary to mean:- "bad faith. The opposite of bona fides." The word 'bona fides' is defined in the same Dictionary as: "In or with good faith; honestly, openly and sincerely; without deceit or fraud."
This order, as pointed out above, cannot be considered to have been passed honestly and in good faith and, therefore, it is mala fide and is liable to be set aside.
9. The learned Labour Court had discussed the evidence of parties in detail and has given well- reasoned judgment. I find no reason to disagree with the order of the learned Labour Court specially in view of the circumstances discussed above under which the order of termination of services of respondent was passed.
10. Mr.Rehan Aqeel has relied upon the case of Muhammad Yaqoob v. Lahore Chemicals Pharmaceutical Works Ltd. 1983 PLC 852. In that case workman was advised by the Social Security Doctor to do light duty and who requested for light duty, but no such job was available with the management and therefore his services were terminated.
11. In the case of General Tyre & Rubber Co. Of Pakistan Ltd. v. Muhammad Taj 1989 PLC 35 the workman did not appear before doctor named by management but claimed to have been declared fit by a Medical Board. As report of the Medical Board was not produced nor doctor was examined therefore this Tribunal held the termination order of workman to be valid.
12. In the case of Taj Muhammad v. Karachi Pipe Mills Ltd. 1983 PLC 977 the services of Workman were terminated after conviction by Military Court.
13. In the case of Zulfiqar Ali v. Premier Tobacco Industries Ltd. 1981 PLC 293 the workman was involved in murder case and was in jail for more than three years therefore his services were held to have been validly terminated.
14. Obviously all these cases are distinguishable from the facts of the present case and law laid down therein would not be applicable to the instant case.
15. In view above discussion, I find no merits in this appeal which is, I D accordingly, dismissed.