KHURSHEED HUSSAIN Versus GENERAL MANAGER, PAKISTAN RAILWAYS, LAHORE

DECISION

This appeal calls in question the order of the Labour Court, Sukkur dismissing the petition under section 25‑A of the IRO filed by the petitioner. The circumstances in which it arose in brief are as follows:‑‑

The petitioner was a driver in the employ of the respondent. He had proceeded on casual leave from 1‑1‑1980 to 10‑1‑1986. At the end of it he had submitted another application requesting for leave without pay for 90 days with effect from 11‑1‑1986, as he had to attend on his ailing mother. Thereafter another application for 90 days leave more, was repeated on the same grounds with effect from the 12th of April, 1986, and there was one more application for 15 days leave with effect from 25‑7‑1986, though he had come across a public notice published in the daily Nawa‑i‑Waqt dated 14‑7‑1986, that he had to face a domestic enquiry.

2. He replied to the same on 24‑7‑1986 by a registered letter. This reply was found to be unsatisfactory and he was ordered to appear before the Enquiry Committee at Patidon on 25‑8‑1986. Pursuant to the direction he appeared and on the submission of the report by the Enquiry Officer he came to be dismissed on 21‑1‑1987.

3. He had preferred a departmental appeal wherein the order of dismissal was converted into compulsory retirement with 5% deduction in pension.

4. The petitioner then gave a grievance notice and later filed the petition before the Labour Court.

5. In the Reply Statement filed on behalf of the respondent the maintainability of the petition was challenged, as per Notification dated 1‑3‑1985 the Railway drivers had been declared employers. On facts it was urged that the petitioner did proceed on casual leave for 10 days but his application thereafter for the grant of 90 days casual leave was not sanctioned for want of Medical Certificate and such an information was sent to him through his Incharge. The next application was rejected and the petitioner was directed to report on duty immediately. This was done through a letter sent through his home address alongwith a charge‑sheet. However the same was returned undelivered. It was thereafter that a show‑cause notice was issued in the local newspaper and it was in reply thereof that the applicant had sent his reply on 24‑7‑1986. He had however failed to resume his duties and instead applied for further leave which was rejected. The other allegations detailed in the petition came to be denied.

6. The petitioner was his own witness while Sardar Bux was examined on behalf of the respondent. The Labour Court, for the reasons given by it dismissed the petition.

7. Before adverting to the merit I might refer to the contention raised by Mr. Awan, though in muted terms, about the non‑maintainability of the petition in view of the Notification referred to earlier. All that need be said in that context is, that a driver is employed neither in a managerial or administrative capacity nor by any stretch of imagination in a supervisory capacity. Under the circumstances the Notification transgressed clauses (a) and (b) of the definition of the worker as to be found in clause (xxviii) of section ..

8. It was contended by Mr. Tauqir Hassan learned counsel for the appellant that the show‑cause notice had not been served upon the appellant before the actual enquiry. The fact remains that it had been sent to him with the address supplied by him to the department. Though it remained undelivered, at any rate he was well aware of the contents of the charges from the public notice which he had himself perused. Not only that, he had sent a reply and later appeared before the authorities. No prejudice under the circumstances was even remotely involved.

9. It has also been urged that the Committee was biased and he was not allowed to lead any defence. Firstly there are no details and particulars of the alleged bias, and secondly the best defence that he could give, could be that from the Head Clerk who according to him had informed him that his application for leave had been granted. The latter was duly examined by the Committee and had outright denied this assertion. Otherwise too, the ingredients of the charge were only documentary and these speak for themselves. Annexures `B to F show that the application for the grant of leave stood rejected and due information had been sent to the appellant though undelivered. Their veracity had not been denied. Therefore there is no merit in this contention either.

10. What clinches the matter, is the fact that the appellant on his own showing, was fully aware of the doings of the department through Public Notice dated 14‑7‑1986. In spite of this he had the temerity to repeat an application for the extension of time. With such a contumacious and defiant behaviour, the view taken in the departmental appeal was more than generous.

11. An employee cannot sit back at home, without duly sanctioned leave except under circumstances beyond his control and in this case it was going on for month at a stretch. He had himself asked for trouble. (See Taus Khan v. Wellcome Pak Limited v. Hidayatullah Textile Mills 1987 PLC 108).

There is no merit in the appeal. I will therefore uphold the order of the Labour Court and dismiss the appeal.

H.B.T./2132/Lb.S Appeal dismissed.