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 22February, 1975 he was charge- sheeted on the allegation that on 6February, 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 25February, 1975 and refuted the allegation. Since his explana--tion 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 tire request of the appellant on the ground of his illness.
On 8March, 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 tae 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 try the appellant adjourned the inquiry to 17th March, 1975 with a notice published in the daily newspaper 'Jang' dated 16th March, 1975.
4. Again on 17th March, 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 parte. 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.nd th th th
5. However, on the same day i.e. 18March, 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 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 un-served 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 appellant and offered the letter to him but 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 appellant, however, went to the office on 8th April, 1975 when be was served with the dismissal order. Aggrieved by the action of the Management the appellant served a grievance notice dated 18June, 1975. This notice was replied by a letter dated 26th June 1975 rejecting the represen--tation. 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 mis-conducted himself and after proper inquiry 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 other false pretext.
9. The Labour Court on 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 taken against the appellant on three counts. The first ground taken by him is that the medical certificate submitted by a private doctor had to be accepted by the Management and inquiry could not be proceeded ex parte. The second ground is that when the inquiry was concluded an intimation should have been sent to the appellant to lead his 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 c6ntention, it was urged that the medical certificate issued by a private doctor had to be accepted in view of the Award of 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 the 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 Le 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 Settlements 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 lie failed to comply with the order, this supports my view thatth th 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 parte with the inquiry.
13. The second plea is equally devoid of any force. In the first place, it would have been 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 is necessary when the person against whom an inquiry is conducted deliberately 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 bravity I may refer the case of Punjab Transport Corporation v. Punjab Labour Appellate Tribunal and 2 others (PLD 1976 Lah. 202), 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 (1974 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 Graphic Service v. Presiding Officer, Labour Court and others (Constitutional Petition No. 291 of 1974) and other connected petition dated 30th 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 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 not be avoided for the simple reason that the show-cause notice could be published in a newspaper on some body 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 a$ 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 apprenchension 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 on case he fails to appear, the respondent shall be at liberty to take any action that may be deemed fit in accordance with law.