The appeal is directed against the decision dated 28-11-1995, rendered by Punjab Labour Court No.6, Rawalpindi, by which grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, by an ex-helper, Muhammad Riaz, was accepted and his reinstatement in service without back benefits was ordered.
2. Muhammad Riaz had been employed by the appellant concern as a helper/worker on 3-1-1987 and was dismissed from service on 21-6-1995 on having been found guilty of misconduct, in a regular inquiry, that was initiated, following his alleged unauthorized absence from duty for a period of forty days from 30-5-1994 to 8-7-1994. The employee had taken up a stand to the contrary, by stating that he had fallen ill and applies' for leave for 29-5-1994. According to him prayer for grant of leave till recovery had been made, and on becoming physically fit, he 'had reported for duty on 8-7-1994 and submitted a medical certificate as well, in proof of his serious indisposition and medical advice for complete rest. He claims to have performed duty, as usual, till his removal from service. It is pleaded that throughout the span of his service he had attended to his work with devotion and dedication, to the entire satisfaction of the employer, who had no complaint against his conduct and performance. It is added that he had, however, been participating in the trade union activities, and this was not relished by the establishment, which was on the look-out to kick him out.
3. In the inquiry report Exh.R-4 submitted on 29-5-1995 by Mr. Tariq Waheed, Inquiry Officer, it has been stated that the employee had admitted his absence from duty for that long period and had thus also admitted the misconduct on his part. The Medical Officer of the Social Security Dispensary, Hassan Abdal had issued him a certificate of fitness on 30-5-1994, which would furnish proof of the fact that he was alright, and had, without any reason or rhyme, opted to absent himself from duty, and that to for as many as forty days. The explanation furnished by the employee, as deposed by him, on appearing as a witness in the Labour Court, on 4-10-1995, however, is that he had been unwell on 27th and 28th May, 1994 and had been carried in a vehicle, belonging to the company, to the Social Security Hospital, where he was treated and discharged, on being kept there for a day only. He maintains that he was not satisfied with the treatment and had, therefore, to consult a private practitioner. He claims to have intimated the employer without any amount of delay that he continued to be indisposed and would be resuming duty on recovery. The claim that he had made an application in that behalf is, however, without proof, as possibly he could not tender any one in that regard, since the application stated to have been submitted by him must be lying with the establishment. In the proceedings of inquiry, Exh.R-3, the representative of the management had stated that although Muhammad Riaz was fit to perform duty on 30-5-1994, he remained absent from duty, from that day onwards, till 8-7-1994, and that to without any intimation. On 8-7-1994 he tendered a medical certificate issued by a physician of Nawab-Abad, Wah Cantt., Dr. Moin Ahmad Khan which exists at page 33 of the file of the lower Court. The doctor has not been examined as a witness either in inquiry or in the Court; but the representative of the employer does not deny having been in receipt of the certificate in question. It has even been conceded, in response to a question posed by Malik Asghar, 'helper'/'representative' of the employee, that on 29-5-1994 an application for leave up-til recovery had been submitted by Muhammad Riaz and is available on the record. Well, if the application had contents different from those stated by Riaz, he could have been confronted with the same, had the said application been placed on record of the Court by the management; but it is not forthcoming.
4. Even if Muhammad Riaz had made no further application for leave, as is maintained by the management, he could well be asked to attend the office, else produce a medical certificate, in support of his plea of continued illness of grave character. According to the medical certificate issued on 7-7-1994 by Dr. Moin Ahmad Khan, Muhammad Riaz was suffering from cervical spondylitice of severe character. I have personal experience, and I am aware of the pain, discomfort and agony, which the patient, suffering from this disease, has to incur. If actually this disease had overtaken the poor fellow, he was not to blame, if he could not attend to his duty for that long period.
5. He was, however, under an obligation to keep his employer informed of the nature of the illness, as also his inability to perform his duty; and although, as worker, Riaz was expected to come to the office and do his duty punctually and regularly, and he should himself have intimated the employer about the cause for his absence from duty, I do not think, there was any harm, particularly with the change of mood of times and increasing emphasis on enjoyment of their inherent rights by the members of the labour class, if the management also could have cared to establish contact with the employee, in a bid to know as to what had prevented him from performing his duty. He had after all been in service of the company for a period exceeding seven years, and was presumably punctual in his attendance, efficient in his performance and normal in his conduct, for if it had been otherwise, the establishment must have taken action against him on any occasion of the kind in the past.
6. It was, on 18-12-1994, in the course of the inquiry proceedings, conceded Altaf Rana, representative of the establishment, that negotiations between the management and the workers had been going on, during those days, as regards the Charter of Demands, placed before the former by the latter. It has, however, not been acknowledged that the labour class had gone desperate and resorted to violence, but it is not denied that there was some tension and bitterness in the relationship between the management and the workers, and the latter had cordoned of the Office of the General Manager, and even a notice about strike had been given. Altaf, however, does not concede that Muhammad Riaz had been proposed to be proceeded against for his active role in the trade union activities, or that he was an office-bearer of the union. Some of the workers/office-bearers had, of course, been served with show-cause notices and charge-sheets, as they had broken the glass panes of windows and had invaded the office of the General Manager and had further incited the co-workers to go on 'illegal strike'.
7. Against this background, it will not seriously . Be disputed, likelihood of Muhammad Riaz having been picked up for an extreme action, could not entirely be ruled out, and possibility of a lenient view about his absence from duty, being taken, could not be excluded. Mr. Muhammad Afzal, Manager, Mechanical Production, had, on 21-2-1995, stated before the Inquiry Officer that Riaz had been working under him for a couple of years and he had often been ill, but he used to send leave applications or medical certificates, whenever he could not come for ditty, and it was hardly once or twice that he was absent without intimation or leave. It would follow that, broadly speaking, Muhammad Riaz was a well-behaved workman and he had assumingly remained absent for forty days at a stretch not without a genuine reason. Although, according to the appellant, there was no provision in the rules, nor was there in vogue any practice that an employee could remain absent from duty over an indefinite period, on applying for leave for an unspecified duration, owing to ill- health even, there was certainly room for a lenient treatment, and extreme action of removal of the worker from service was not warranted. Even warning would have sufficed especially if it was first instance of delinquency or lapse on the part of the employee, who had unfortunately not been keeping good health, as has been testified by his immediate officer Mr. Muhammad Afzal. These being the facts and circumstances, I find myself disinclined to differ with the view expressed by the learned lower Court. There was little justification for the poor worker's ouster from service. It is every body's knowledge and experience these days that it is an uphill task to get a job and even graduates are roaming about on roads, and for the bulk of the population it has become extremely difficult to make both ends meet. I am not, therefore, prepared to believe that the respondent had been able to have employment anywhere during this period; and he had deposed to that effect in categorical and convincing terms, and there is no evidence forthcoming in rebuttal of this assertion. The dismissed employee, as such, was not really disentitled to the back benefits. Since, however, he has not laid claim to the same, by filing a cross appeal, or by submitting cross- objections, in the course of this appeal, he will remain without back benefits; but he must be reinstated in service, with effect from 21-6-1995, the date of his dismissal. I would uphold the Labour Court's decision dated 28-11-1995, by dismissing the Establishment's appeal, with costs.