SHAMS TEXTILE. MILLS LTD., CHINIOT Versus MUHAMMAD AYUB

This is an appeal challenging the decision dated 19‑4‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, whereby the respondent has been directed to be reinstated in service without back benefits.

2. The allegation for which the respondent was dismissed from service was absence from 15‑10‑1983 to 15‑3‑1984 rejecting his leave application for the said period. Before that the respondent has been allowed leave for about 503 days and he had applied for extension, which, as mentioned above, was refused. The main reason given by the learned lower Court for accepting the grievance petition is that the appellant did not comply with the provisions of Standing Order 8(2) of the Standing Orders Ordinance, 1968 by intimating the respondent about the rejection of leave within a week of the submission of application or two days prior to the commencement of leave applied for. The learned counsel for the appellant' has argued that Standing Order 8(2) is not applicable to the cases of extension of leave. This is true that no time limit is z given for informing the worker about the sanction or rejection of extension of leave but there is no force in the contention that the employer is not required to send an information. Clause (2) says, "if the workman after proceeding on leave desires an extension thereof, he shall apply to the employer who shall I send written reply either granting or refusing extension of leave to the workman if his address is available and if such reply is likely to reach him before the expiry of leave originally granted to him." Since the prayer for extension of leave was for about five months, the respondent could be informed before the expiry of leave about the rejection. The appellant produced in evidence intimation Exh. R‑8, A. D. receipt of which is Exh. R‑9. The respondent admitted that Exh. R‑8 had been delivered to his brother. But he did not say when his brother had received it or when his brother had told this fact to him. A brother not being an adult male member of the family in the absence of evidence that the brother of the respondent had delivered the letter to him before the expiry of leave, it could not be presumed that the respondent had got the intimation of the rejection of leave before the expiry of leave. It has also been argued that in application Exh. R‑15 the respondent admitted that he had received the publication made in the newspaper. Exh. R.15 does not show that the publication referred to in it pertained to the rejection of leave. So, Exh. R‑15 does not advance the case of the appellant. Reference has been made to the statement of the respondent made in the Court, wherein he said that on 27‑2‑1984 he had received the publication to the effect that his leave had been refused: Learned counsel for the appellant has argued that after getting this information it was necessary for the respondent to have reported for duty but since he did not do so, he was guilty of absence without leave. The argument has no force. Firstly, because the respondent had stated that he had reported for duty on 17‑1‑1984 but duty was refused to him. This assertion made by the respondent was not rebutted by any evidence. Since on 17‑1‑1984 duty was refused to him, it was unnecessary for the respondent to again ask for duty after he received the publication made on 27‑2‑1984 in the newspaper that leave had been refused to him. Secondly the charge‑sheet was delivered to him on 26‑2‑1984. Since action had been proposed to be taken against him on 26‑2‑1984. it was not necessary for the respondent to have reported for duty after he received publication on 27‑2‑1984 to the effect that leave had been refused. Since before he was charge‑sheeted, no intimation was given to the respondent that extension of eave had been refused, it cannot be said that he remained absent unauthorisedly. Since he did not receive any intimation of rejection of leave, he was justified in thinking that his prayer for extension had been accepted. The circumstances that previously he was allowed long leave for r 503 days he was a justification in thinking that his employer was very generous in matters of allowing leave and for this reason also the report he was justified in believing in the absence of intimation to the contrary that his prayer for extension of leave had been allowed. The learned counsel for the appellant has cited 1986 PLC .192, wherein it has been held by the learned Sindh Labour Appellate Tribunal that merely entertaining of application for leave does not raise a presumption that it has been sanctioned and rather if no intimation had been received it will be presumed that the leave had not been allowed. With great respect to my learned brother I cannot agree to the view taken. Question arises for how long the worker should wait for the intimation and then presume that leave has not been granted. There is no provision in Standing Orders Ordinance, 1968 fixing the period upto which the worker should wait for the reply and then in the absence of any reply to presume that leave has not been collided. So far as the present case is concerned, the respondent reported for duty on 17‑1‑1984, whereas the leave applied for was to expire in March, 1984. It, therefore, can be said that he after waiting for sometime presumed that the leave may not have been sanctioned, so reported for duty. It, therefore, cannot be said that he remained absent unauthorisedly. The appellant was bound to intimate him about the rejection of leave if action was to be taken for the absence.

3. The other point raised by the learned counsel for the appellant during arguments is that the service of grievance notice was not proved by the respondent. He has made reference to the statement of postman who appeared as PW‑2. The postman said that he was entrusted registered letter on 26‑9‑1984, which he had delivered to one Aleem‑ud‑Din. Exh.P‑1 is the postal receipt dated 25‑9‑1984. No doubt the postman said that he had delivered the letter to a clerk namely Aleem‑ud‑Din and not to the addressee but since the letter was delivered in the Mills, the postman was justified in thinking that the person receiving the letter had authority to do so. No doubt RW‑2 said that no person by the name of Aleem‑ud‑Din was employed in the appellant‑Mills but this oral evidence was not sufficient to show that actually the notice was not served. Register of employees could be very easily produced by the appellant to show that no Aleem‑ud‑Din was mentioned in the said register. The mere fact that the receipt of grievance notice was not entered in the receipt register was not sufficient to show that the postman had not delivered the notice to any employee of the appellant. The respondent was not bound to shadow the postman to satisfy himself that he had delivered the notice to a rightful person. If the postman per chance delivers a notice not to the addressee but to some other person at the residential or working place of the addressee, the sender of the notice is not to be blamed.

4. It has also been argued that the grievance notice was time‑barred, inasmuch as the date of dismissal is 10‑6‑1984 and grievance notice is dated 24‑9‑1984 and is alleged to have been delivered on 26‑9‑1984. Admittedly, the dismissal order was not delivered to the respondent in person. Exh. R‑33 is the envelope in which intimation is alleged to have been sent. It bears the report that the addressee was not available. Ex. R‑35 is the publication made in the newspaper on 21‑6‑1984. It has been argued that from the date of publication the grievance notice delivered on 26‑9‑1984 was time barred. Since the respondent was not on duty on the date on which dismissal order was passed and had not been allowed to resume duty as stated by the respondent, the period of limitation was to start from the date on which the dismissal order was actually served upon the respondent. If the letter Exh.R‑33 had been received back with the report that the respondent was not available, another attempt should have been made instead of making publication in the newspaper. It cannot be expected that male should be found present at their residences throughout the day. There is no evidence on what actual date the respondent had got information about the factum of his dismissal. The learned lower Court was, therefore, justified in holding that the grievance notice was within time.

5. As a result of what has been discussed above, the appeal is without merits and thus is dismissed.

A.A/176/Lb.P Appeal dismissed