1. MD. NURUL ISLAM KHAN (CHAIRMAN).-The is an application, under section 25(1)(b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, which will be hereinafter referred to as the Act.
2. The case of the first party is that he was a clerk under the second party. He was granted, earned leave from 4-10-69 up to 24-10-69. During his leave period he was attacked with chronic peptic ulcer. He took advice from the Assistant Surgeon, Dacca Medical College Hospital, and he was advised to take full rest for one month. He sent an application to the second party on 23-10-69 with a prayer for leave for one month on account of sickness along with a medical certificate. He sent another letter to the second party on 6-11-69 informing of his ill health. But the second party without considering the medical certificate suspected the genuineness of his sickness and directed him to join his duties immediately despite his said illness. The first party further expressed his inability to join his duties; On being fully cured, he informed the second party through a letter that he would join on 24-11-69. , But the second party issued an order of dismissal on 22-11-69, on the false ground of unauthorised absence: He sent s grievance petition. But he received no reply.
3. Hence this petition with prayer for directing the second party to re-instate the first part to his former post with all back wages.
4. The second party entered into appe9rance by filing a written statement wherein they stated that the application is not maintainable in law and that the application should be dismissed for want of material fact in the body. He was habitually absent from service and absented for more than 10 days despite the leniency shown to him. He did not care to join in spite of the instruction of the Management. On 13-10-69 he absented without permission and submitted his application on 15- 10-69. This leave was sanctioned to him. He again absented from service from 25-8-69 for 10 days and filed an application for leave. The reason given was urgent work. He was then allowed to enjoy the leave. On 17-9-69- he filed another application for 2 days' leave. This time also the reason was an urgent work at Dacca. Then on 3-10-69 he filed- an application for 14 days leave, with effect from 4-10-69. This time also the ground was urgent work at home. He absented himself without awaiting the result of his application. The Management granted the leave. But on 18-10-69 he sent a telegram from Barisal praying for extension of leave. The telegram was vague and full of mistakes, No reason for extension was mentioned. On 23-10-69 he sent an application with a medical certificate, dated 22-10-69 from Dacca stating that suddenly he was attacked with chronic ulcer and required rest for one month. The medical certificate revealed that he was suffering from that illness since 2 days only. The Management not being satisfied with the genuineness of the application rejected the prayer and directed him to resume his duties and also volunteered his examination by the C. M. H., Dacca, if he so wants, at the cost of the Management and further it was stated that his prayer for leave would be considered if he was really found ill. He received the order of the Management on 13-1 t-69 at Barisal and he sent an application on 14-11- 69 refusing to join and to be examined by the C. M. H., Dacca. This application was sent from Dacca. On 17-11-69 he sent another application disclosing that was under the treatment of an Assistant Surgeon since 23-10-69. As be remained away without leave for more than 10 days, he was dismissed. His grievance was baseless and is bound to be dismissed.
5. Points for determination are: -
(1) Whether the order of dismissal passed by the second party is legal and sustainable in law?
(2) What relief, if any, is the petitioner entitled?
6. FINDINGS AND DECISION Points 1 and 2.It appears from the papers submitted by the parties, that the first party was in the habit of taking leave frequently and at times he did not wait for grant o the leave though according to law he should apply sufficient ahead and should not leave without the permission of the employer. As stated by, the second party in their written statement, it appears that on different date the first party applied for leave, but without waiting grant of his leave he left the station and enjoyed the leave. It also appears from the scrutiny of the medical critical that he was suffering from peptic ulcer from about 2 day when he obtained the certificate on 22-10-69. But this was not his case. He should have applied sufficiently ahead of time if he was suffering from the said disease from such all-early period. The genuineness of his application was suspicious and his prayer for leave was rejected. He was directed to report for duty. The Management also under took to get him examined at the C. M. H., Dacca at their own expenses and. they further undertook to grant his leave if he was found by the C. M. H., Dacca, to be ill. But the first party did not comply with the directive of the second party. He refused to join his duties and entered into a debate with the employer by saying that he was not at all in the necessity of going for the said examination.
7. Thereafter according to the operation of subsection (3) of section 5 of the Act the first party terminated his lien to his appointment and was kept in 'the badli list. He was duly informed by a letter, dated 22-11-69. He sent a grievance petition in due course.
8. On a scrutiny of all these papers it appears that the facts of the case are quite clear. Admittedly, the dilatory tactics of the first party were apparent on the face of the record. He refused to comply with the orders of the second party and remained, on unauthorised absence for more than 10 days.
9. While he was offered best medical treatment he had absolutely no point.He refused to join his duties, and also for grant of his leave even if he had a genuine case of illness. He should not have refused the offer of the Management. It appears that the Management was quite considerate. It was the absolute discretion of the Management to suspect the genuineness of his leave application when he was remaining absent from duty without obtaining previous permission and was sending letters from different places.
10. In view of ail these circumstances, it appears that the first party came within the mischief of subsection (3) of section 5 of the Act and due to the automatic operation of the said section he lost lien to his appointment. Tire second party is quite clear on this point.
11. On a scrutiny of all [these papers and on a perusal of the submissions of the parties as discussed above, I find no point in the case of the first party and therefore, I fail to give him any relief.
12. In the result, the petition of the first party is d is Wed on contest but without costs.
13. Members on consultation agreed with my decision above.