QADIR BUX Versus DISTRICT MANAGER, KARACHI TRANSPORT CORPORATION, LANDHI
ORDER
Senior counsel Ch. Rashid Ahmed has raised the only contention, whether the enquiry conducted against Mr. Qadir Bux, permanent employee of Karachi Transport Corporation was rightly conducted, to conform to the judicial requirements and the requirements of the rules of natural justice, when he submitted medical certificate of the qualified doctor to justify his absence, he was on leave, admittedly from 2‑4‑1986 to 16‑4‑1986.
2. The counsel has also referred the enquiry report, the observation of the Enquiry Officer, the overall effect of the conclusion drawn by the Enquiry Officer, to hold him guilty of misconduct whether the judicial norms were observed, what can be expected of justice to the applicant, which was the prime consideration. The counsel has also taken the critical view of the hurried procedure in completing the enquiry.
3. The respondent Corporation has justified the enquiry that absence from 17‑4‑1986 of Mr. Qadir Bux was not justified. He was given the fullest opportunity to defend on the charge sheet of 3rd May, 1986. They have shown the active participation of Mr. Qadir Bux in the enquiry on 25‑5‑1986. They have also referred to the important aspect that no reply to the charge sheet was furnished by the applicant, accused of misconduct.
R E A S 0 N S :
1. Indeed, the Enquiry Officer, approached the matter, feeling the sense of responsibility, that the absence of an employee, is the lapse under the Disciplinary Conduct of the Corporation Transport service, but when the Enquiry Officer takes up the responsibility as an Enquiry Officer to do justice between both the parties, whether he fulfilled the legal obligations, really in concept of justice, or simply to do his own duty to submit the finding, holding particular person guilty of misconduct on the right appreciation of the evidence and the application of the reason, to sound that justice has been done.
2. What he concludes in the last paragraph on page 19 of the report he writes in this manner which the Court quotes:
"In this respect when medical certificate submitted by the accused was verified by the KTC Medical Officer who has given his opinion that Medical Certificate is not acceptable in KTC, because of the reasons that in the Certificate it is mentioned that this Certificate is not valid for Court's purpose. In light of the above facts accused is proved guilty for unauthorized absence for more than 10 days."
3. If this is the reasoning on which the Enquiry Officer has done justice, the Court has again to examine, whether any possible effort was made by the Enquiry Officer to support his observations by the logical reasonings and the application of judicial conscience that justice was not done, in the matter. It is true that justice is a difficult task but efforts must be made in context of what the evidence is placed and examined by taking analytical view that what has beer said regarding the sickness was true to give the inference that explanation was not capable of a reasonable belief to justify the conduct of act and omission. The Enquiry Officer has made reference to the Certificate of 23‑5‑1986 of the qualified doctor and rightly he has not gone beyond the scope what he has said in his finding that this certificate is not valid for Court purpose. By this expression of the qualified doctor, the only Enquiry Officer could draw the inference that this may not be used in the Court of law or the expression would have conveyed some other sense that it should not be valid for Court's purpose. But that has not changed the complexion of the disability which applicant proposed to bring forward on the request of the Manager that he should produce the medical certificate, if he wants to justify absence. This certificate shows that Mr. Qadir Bux was under his treatment from 17‑4‑1986 to 23‑5‑1986, suffering from typhoid fever. It is an accepted fact that typhoid fever is a serious disease or what to say serious ailment, sometimes paralysing the movements. It is therefore, the basic question was to be asked whether A he was sick man. His absence was not intentional. This was not basic question before the Enquiry Officer that certificate is not valid for Court's purpose. This was the secondary question where the man who has no literary knowledge of the medical ethics, to know the legal implication of the reception of the documents. The Enquiry Officer therefore had the factual aspect before him either to believe that he was not a sick man or to reject that he was physically able to resume duty. This aspect in the appreciation of the evidence the Enquiry Officer has overlooked that illness is the natural phenomena. Sometimes illness occur in the human families. Therefore the acceptance or the rejection of such explanation was primarily the function of the Enquiry Officer, in light of the certificate of the qualified doctor signed with full sense of responsibility. This aspect could not be ignored, unless the finding was contrary that certificate was basically false or inspired no confidence. Such observation must have found in the report of the finding, for the Court of law to have the appraisal of the evidence and the observation of the Enquiry Officer in the first instance to know his opinion.
4. Regarding the defect of the procedure Ch. Rashid Ahmed has pointed out, that on 24‑5‑1986 charge sheet was served. Enquiry was held on 25‑5‑19$6. Second show‑cause notice was served on 26‑5‑1986. By this continuity of the dates he wants to show that the opportunity which was to be afforded, calling, as reasonable, was not provided where the applicant, to submit the reply to the charge sheet.
5. In the context of this, mala fide of the proceedings or to say the over interest of the proceedings or to say of the honest conduct of the proceedings, the Court has examined the evidence of the District Manager. Very striking aspect of the evidence has engaged the Court's attention. When the question was asked from the District Manager, whether the reply of the charge sheet was given and is on his record the District Manager has said that the reply of the charge sheet R/1 is found in the papers of his file but it has no initial of the clerk concerned. Perhaps this fact was overlooked that Mr. Qadir Bux himself has taken the stand in his evidence under the impeachment of cross‑examination that no reply was filed before the Enquiry Officer in respect of the charge sheet. It is not understood, how the reply of the charge sheet was found in the file of District Manager without the initial of the concerned staff member.
6. However the District Manager, has also admitted that when, Mr. Qadir Bux appeared before him and made application showing the absence he told him to produce medical certificate or resume duty. On 24th, he submitted joining report. On 25th, the enquiry proceedings were made against Qadir Bux. In this situation, the fact of medical certificate was to be appreciated by the Enquiry Officer, instead of basing his finding, simply on this expression that Mr. Qadir Bux is guilty of misconduct, because the KTC doctor has given the opinion that it is not to be used for Court purpose. This reasoning was E; highly absurd, un-intellectual. The Enquiry Officer would have seen, what disease he was suffering from. Whether it was 'false typhoid, fever, by putting querry to the concerned medical officer, to discredit' his medical certificate when certificate was issued by qualified doctor with the academic qualification of M.B., B.S. The presumption, as argued by the counsel to be drawn that this medical certificate was manipulated by Mr. Qadir Bux, such presumption without any positive proof of evidence if it was available will be difficult to draw for otherwise it will loose the confidence in the credibility of the certificate unless questioned with absolute propriety. The Enquiry Officer to have called the medical officer as the defence witness to show whether the disease he was suffering from was true or false. Then alone, he could base the finding of such presumptions.
7. Regarding other defects, in the procedure of the enquiry, the Court has found no defect, otherwise in the enquiry proceedings where he participated and explained position.
8. Standing Order 15 speaks of acts and omission which are treated as misconduct. Clause‑E speaks of absence without leave for more than 10 days or habitual absence without leave. This is not a case of habitual absence. It is a case of the absence of 10 days. Whether the absence was intentional absence or unintentional absence or the absence beyond the control of human being or by unforeseen factors. Absence from duty, no doubt, is the violation of gross discipline and reduces the adjective of the dignity of labour for which he gets the remuneration. But, if the absence is in the natural phenomenon, and can be equated from the outstanding leave, which the employee enjoys under the Factories Act or in the commercial establishment, as the case may be, such absence if it is explained, can be treated as medical leave. This is not a case of Essential Service, where his indispensability, was the matter of concern. The explanation of the disability confirmed by the medical opinion, calls, for recalling of the order of dismissal, which was based rather on sentiments.
9. In the result the dismissal is set aside. The absence will be treated as medical leave. Application is allowed accordingly. He is reinstated.
A.E./999/Lb.S
Application allowed.