decision This is an appeal against the order of the Labour Court dismissing the application filed under section 25-A, I. R. O.
2. The appellant was in the service of the respondent. On 22nd February, 1975 he was charge- sheeted on the allegation that on 6th February, 1975 he had insulted Dr. Fazlullah, Chief Medical Officer, as the Medical Officer had allowed sick leave to another workman. The appellant submitted a reply on 25th February, 1975 and refuted the allegation. Since his explanation was not found satisfactory an inquiry was ordered.
3. Major Hamid Hussain was appointed as inquiry Officer. The inquiry was fixed for 6th March, 1975 but it was postponed to 8th March, 1975 at the request of the appellant on the ground of his illness.
On 8th March, 1975 the appellant remained absent without any intimation. The Inquiry Officer, however, did not proceed with the inquiry and adjourned it to 14th March, 1975 in order to give an opportunity to the appellant to appear and contest the charge which was laid against him. Again on 14th March, 1975 the appellant did not appear and the Inquiry Officer in order to give a further opportunity to the appellant adjourned the inquiry to 17 March, 1975 with a notice published in the daily newspaper `fang', dated 16th March, 1975.
4. Again on 17th Match, 1975 the appellant failed to appear and instead sent an application for adjournment on the ground of illness without any medical certificate. The application was rejected and the inquiry was resumed ex parts. Since the inquiry could not be completed on the same day, it was adjourned to 18th March, 1975. The inquiry was completed by 11-30 a.m.th
5. However, on the same day i.e. 18th March 1975 at 3-45 p.m. an application for adjournment supported by a medical certificate issued by a private doctor was received, recommending complete rest for one month. It seems that the genuineness of the illness was doubted and the appellant was directed by a letter dated 19th March, 1975 to report to the Medical Specialist of the combined. Military Hospital, Malir within 3 days of the receipt of the letter for investigation, treatment and determination of the period of his incapacity to attend the inquiry proceedings. This step was taken by the Management as the appellant was a Government Employee and a certificate from a private doctor could not be accepted. The letter was, however, received back as unserved on the ground that no such person resided there on the address shown on the letter. In order to take further precaution the Inquiry Officer sent; Choudry Siddiq, Personnel Officer and two other employees with the copy of the letter. They contacted the appel--lant and offered the letter to him bat he refused to accept it.
6. Subsequently, the. Inquiry Officer sent a report finding the appellant guilty of the charge. On the basis of the report the Management proposed to take action by dismissal. Consequently show- cause notice was sent to the appellant by registered post but this letter was received back undelivered
7. The applicant, however, went to the Office on 8th April, 1975 when he was served with the dismissal order. Aggrieved by the action of the management, the appellant served a grievance notice dated 18th June, 1975. This notice was replied by a letter dated 26th June, 1975 rejecting the representation. Consequently, the appellant filed an application under section 25-A, I. R. O. in the Labour Court on 19th August, 1975.
8. The application was resisted and it was pleaded that the appellant had misconduct himself and after proper inquiry he was found guilty and dismissed from service. It was also pleaded that several opportunities were allowed to the appellant to defend himself by participating in inquiry, but he deliberately avoided on one or the ether false pretext.
9. The Labour Court or the assessm ent of the evidence dismissed the application. Aggrieved by this, the present appeal had been filed.
10. The learned counsel for the appellant attacked the action to taken against the appellant on three counts.The first ground taken by him is that the medical certificate submitted bya private doctor had to be accepted by the Management and inquiry could not be proceeded ex prate. The second ground is that when the inquiry was concluded as intimation should have been sent to the appellant to lead leis defence: The third ground taken is that show--cause notice was not served upon the appellant before the order of dismissal was passed and, therefore, the principle of natural justice was violated.
11. Dealing with the first contention, it was urged that the medical certificate issued by a private doctor had to be accepted in view of the Award dated: 3rd March, 1957 in relation to Demand No. 3(c) appearing at page 15 of Labour Law Cases for the year, 1957-58. There is no force in the contention as the Award was effective for a period not exceeding one year as laid down by section 19(3) of the Industrial Disputes Act of 1947 So it came to an end on they expiry of that period Moreover, at that time it was a private corporation established by the deed of agreement dated 1st February, 1949 between the Government of Pakistan and Messrs Thomas De La Rau & Company Ltd. of London, but now it is exclusively Government-owned corporation. Despite that, it has not been pretended, that any such clause was embodied in the subsequent Awards or Settlement having taken place from time to time.
12. Apart from this, not only I doubt the illness and believe in the falsity of the medical certificate but I also agree with the Management that the appellant ought to have submitted a certificate from an authorized Government Medical Officer and should have appeared before the Medical Board as required by the Management. Since tie failed to comply with the order, this supports my view that there was no substance in the illness and the appellant was deliberately trying to avoid to participate in the inquiry and adopted dilatory tactics. Consequently, Inquiry officer was justified in proceeding ex parts with the inquiry.
13. The second plea is equally devoid of any force. In the first place it would have have futile to send a notice for leading defence in view of the circumstances narrated while dealing with the first plea.
Secondly, no provision of law has been pointed out to support the plea that such a notice t is necessary when the person against whom an inquiry is conducted delibera--tely fails to appear to participate in the inquiry. The appellant himself is responsible for his intentional gross negligence with the sole object to avoid the inquiry and prolong it as far as it was possible to do.
14. Taking up the last plea, a number of decisions have been quoted by the learned counsel for the parties, but I need not go into all these cases as the ratio decidendi is that a show-cause notice is mandatory before an order of dismissal has been passed. For the sake of brevity I may refer to the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal and 2 others (1) PLD 1976 Lab. 209, decided on 19th January, 1972 and confirmed by the Supreme Court as reported in 1973 SCMR 455, decided on 15th March, 1973. Then there is a decision of the High Court of Sind & Baluchistan in the case of Quftar v. Sind Labour Court and another (2) 1074 PLC 205, which was quoted with approval by the Division Bench of the same High Court in an unreported decision in the case of the General Manager, Javed Press & Modern Grafic Service v. Presiding Officer, Labour Court and others (Constitution Petition No. 291 of 1974) and other connected petitions dated 10th August, 1976. In these decisions the principle laid down by the Supreme Court was followed.
15. Even the respondent was conscious of the aforesaid requirement and sent a show-cause notice with the inquiry report to the appellant by registered post but it was received back as undelivered.
No further attempt was made to serve the appellant. Although, I am inclined to agree with the learned counsel for the respondent that in view of the conduct and the attitude of the appellant it could not be possible to serve the appellant by post but all the same the requirement of the service of the notice could no be avoided for the simple reason that the show-cause notice could published in a newspaper or somebody could be deputed to effect the service as was done on the previous occasion.
16. Since show-cause notice was not served before passing the order of dismissal the principle of natural justice was violated and the order of dismissal is not sustainable. I, therefore, allow the appeal and set aside the impugned order of the labour Court as well as the order of dismissal and direct that a show-cause notice with the inquiry report be served upon the appellant before passing any final order.
17. To allay the fear and apprehension of the learned counsel for the respondent that service by post would not be possible, I order that the appellant should appear before the General Manager, Administration on 27th November, 1976 at 9.00 a.m. to receive the show-cause notice and the report of the Inquiry Officer and in case he fails to appear, the respondent shall be at liberty to take any action that may be deemed fit in accordance with law.