ABDUL JAMIL Versus Messrs PAKISTAN STEEL
ORDER
In the petition under section 25‑A of the Industrial Relations Ordinance for the redress of the grievance, Mr. Abdul Jamil has challenged the order of dismissal of 11‑3,‑1987, from the employment of the Steel Mill as illegal, on the ground that he was seriously ill from 9‑9‑1986 to 22‑9‑1986, being disabled to perform the routine duties and also being resident at far‑off place and not in a position to communicate illness to the Operational Head. In this context he has referred the certificate of the Medical Officer of Pakistan Steel Mill Panel, to show that there was no justification to initiate enquiry.
2. Mr. Jamil has filed this petition in a position as ex‑fitter for the purpose of jurisdiction under the Industrial Relations Ordinance.
3. The respondent in his written reply has taken this defence that applicant was appointed as a trainee in the Metallurgical Training Centre where he joined on 30‑12‑1981 and finally dismissed on 11‑3‑1987.
4. Respondent has given the background of his duty performance relating to absences what they explained, that after 15 days of his joining service, he remained absent from duty, left for home without information. He was given the notice of show‑cause and was issued the warning letter. He again remained absent. He was issued the notice of show‑cause dated 4‑8‑19,$3 and issued the warning letter. He again remained absent and notice of show‑cause was issued and was given the warning. He was again issued the notice of show‑cause dated 12‑11‑1984 and issued the warning. He was again issued the show‑cause of 18‑3 1985. He was issued the letter of warning: He was again absent and submitted application dated 1‑4‑1985 with the Medical Certificates R/24 and 25. He again remained absent and submitted applications dated 21‑4‑1985 R/26 and R/27. He again remained absent in May and submitted the Medical Certificate.
5. The respondent has given the list of the Medical Certifcates R/30 to R/50.
6. However to be precise, the case of the respondent is that he remained absent without any leave for more .than ten days which started from 9‑9‑1986 and in the domestic enquiry was held guilty of misconduct. He was given the fullest opportunity to defend the case.
7. In the case before the Labour Court, Mr. Jamil has examined himself and made the statement that since 30‑12‑1981 no disciplinary action was taken against him to show the absence by habit. He criticised the enquiry as based on partiality and referred that the appointment of Mr. Ashraf Ali Khan was without consent and the foreman himself being the complainant cannot be reliable.
8. At the next place he has said that his sickness was beyond the control.
9. The respondent has led no evidence for the statement is made by Mr. Yakoob that he does not want to lead evidence. This statement is made in the diary of 14‑10‑1987. The applicant has examined Medical Officer of the Steel Mill Dr. Muzaffar Ali Uqaili. Mr. Uqaili's evidence is referred first as what he has said in his evidence before the Labour Court by discharging responsibility on oath. What he says is as under:
"I had issued Medical Certificate to Mr. Jamil. I support the contents. He was suffering from gastro enteritis. He was advised the rest from 9‑9‑1986 to 22‑9‑1986. I am on the panel of the Steel Mill. No death is caused due to this disease in the adults usually."
10. In his impeachment under the cross‑examination, Mr. Uqaili has said as under:
"It is correct that I can only examine those patients who are registered in the Steel Mill. But at the same time he qualifies statement that he can examine the patients privately and do not submit the bill. I maintain the record of registered patients in my dispensary. If I advise the patient for the rest I issue the printed certificate. I am not aware of the certificate instructions that M.C. be issued immediately after the patient is advised the rest. He supports other certificates as well R/29 to R/50."
11. Mr. Uquaili has given the following statement further in his own words:
"It is correct that Steel Mill employees often press for issuance of sick leave certificate and then explains that first they tell about the sickness and ask for certificates:"
The witness further states that when the patient speaks of diarrhoea sickness and gastro enteritis, we issue certificates."
12. Mr. Jamil has referred to the Medical Certificates of various dates R/3, R/11, R/12, R/20, R/26, R/27, R/29 to R/50 and R/56. He has been frank to admit that these Medical Certificates were produced after the absence from duty. He has also been frank to admit about various warnings and show‑cause notices of 1983, 1984 (R/5 to R/9). He has also referred certain leave applications R/21, R/19, R/23, R/24 which are also warning letters. He has referred to 1985 enquiry and stated that enquiry was conducted in his absence and he was found guilty. Regarding the present enquiry he refers to the Annexure‑B and states that statements of Ghulam Mohammad, Mohammad Ashraf and his own statement were recorded in the enquiry. He refers to Annexure‑D which relates to the Medical Certificate on the ground of gastro enteritis. He has also been definite that these are not the forged certificates.
REASONS:
1. There are number of factual aspects to be considered, whether Mr. Abdul Jamil was under the constant warnings of the absence of duty prior to the issuance of charge‑sheet, which is the basis of the case. Secondly, what Mr. Jamil has said with an emphasis in paragraph 1 of his petition that he was suffering from serious illness during the relevant period of 9‑9‑1986 to 22‑9‑1986 making him incapable of the performance of duty and what is the explanation he has advanced forward that it was the disease beyond his controlling power and to intimate the Operation Head, what he explains, more comprehensively, saying that he resides at far‑off place and in the bachelor accommodation. These niceties of his case particularly of these two aspects of serious illness and the non intimation due to his bachelor accommodation and the far‑off residence have been noted, with the background of previous warnings and the Medical Certificates sent to the management, in some of these certificates showing the disease sometime of hepatitis and sometime that he suffers from gastro enteritis. Although the word hepatitis has not been cleared by the Medical Officer nor any question asked by the respondent but what Court can sec it is a disease something connecting the liver.
2. This is also to be noted that some applications do not disclose what discease he suffers, what can be seen as one of the specimen of Annexure‑C. All that he has emphasized that he suffers from serious illness and the Medical Certificates to follow. This application is in response to the notice of show‑cause of 23‑9‑1986.
3. What further, the Court has seen that Mr. Uqaili's credibility has been impeached by suggestive questions that forged certificates are being brought by the applicant, which applicant has denied but the respondent through his representative has not been bold enough to ask the Medical Officer what he has asked from the applicant of the forged certificates. This has surprised the Court that in the Court of law, nobody is above the law, the counsel should have discharged his duty. However, that does not mean that the Court is disbelieving Mr. Uqaili. He is the Medical Practitioner, and on the panel of the doctors in the Steel Mill. He has given his opinion as a doctor and there is no other doctor of such eminence to have come forward to confront him with the medical knowledge of the disease of the nature of gastro enteritis that the patient remains paralyzed to perform the duty or ordinary routine of the work of the daily life. With all the respect to the Medical Officer the Court will be failing in its obligation if it does not ask the representative or the respondent that if they suspect that wrong certificates have been issued, what possible precautions were taken against such Panels. If Mr. Uqaili has given the evidence and very confidently that no death is caused due to this gastro enteritis in the adults but at the same time remarking with the word "usually", the Court finds that the disease was certainly dangerous. Whether Mr. Uqaili be accepted in the evidence he has presented and the Court is not the medical expert or any Medical Expert is brought in the evidence to impeach the medical knowledge possessed by this witness, the respondent is to content itself with the disability of which he has given the opinion that the witness needed the rest.
4. Besides this aspect, when the Court sees the previous background of applicant's conduct and the medical certificates it presents the marked difference; in some certificates, it is shown fever, and in some certificates it is shown hepatitis, in some certificates it is shown bronchitis, in some certificates it is shown malarial fever, in some certificates it is shown diarrohea. These medical certificates though are the matters of past supported by warning letters to the applicant with the highest margin of absences in the yearly performance of the Steel Mill, what the Court feels is that the administration officials of the Steel Mill would have examined the accuracies of such medical opinions, reacting on the working of Industrial Complex in the matter of panels and the Court feels its duty to point out such responsibilities without making comment on the genuineness of the certificates.
5. However, the overall conclusion that can be briefly summarized is that the enquiry was conducted in the open atmosphere. The applicant had the opportunity to vindicate his position. The record was before the Enquiry Officer which was produced by the witnesses. It was the question of fact for the Enquiry Officer to have appreciated which he has appreciated all the niceties and the shortcomings of the applicant that he was not sending the intimation in advance of his illness. The Enquiry Officer has also taken the view that the medical certificate is issued by Dr. Muzaffar Uqaili including the present one for fourteen days wherefor more than 7 days he had to refer the case to C.M.O. Pakistan Steel Mill. The Enquiry Officer has been remarkably honest in his observations. What he writes is as follows:
"In face of issuance of frequent medical leave certificates to the employees by Pakistan Steel Mill advisors C.M.O. Pakistan Steel Mill may be asked to have control over these practices and such practices are encouraging the leave of the employees which is seriously affecting production:"
6. The Enquiry Officer has rightly come to the conclusion and the Court respects his view in the enquiry. But what has been the feature of the case that Mr. Uqaili has been examined before this Court. He was not examined before the Enquiry Officer. This fact goes without saying that Mr. Jamil has acknowledged that he did not send intimation being far away. This is no ground, what the Court expects is the explanation. He could depute any person to send the intimation. His record of warning has been extremely unpleasant, what is supported by mild action of warning.
7. But the secondary question is and the Court has examined that aspect presently in the context of the evidence of Mr. Uqaili, against whom no other data has been made available to show that his opinion of the Medical Certificate is inaccurate or false certificate. So, the main question is what is the quality of the evidence presented by the highly respectable witness, when all previous certificates were not before the Court of law in the enquiry findings to make comments except with limited observation discussed in the judgment.
8. Finally Standing Order 15 speaks of subsections (1), (2) and (3). Subsection (1) deals with the list of acts and omissions. Subsection (2) deals with the liability of punishment. Subsection (3) deals with the acts and omissions treated as misconduct i.e. habitual absence without leave or absence without leave for more than ten days. In the context of the notice of show‑cause it has been shown that he was absent for more than ten days ignoring the earlier part. Similarly subsection (1) speaks of reprimand or fines as prescribed under the Payment of Wages Act or in cases where the Wages Act is not applicable. But the language of fine used in subsection (1) and subsection (2) practically is the same that those who commit the misconduct can be liable to any of the punishments and for those acts and omissions which are of lesser gravity the punishment prescribed in subsection (1) of reprimand or fine.
9. However another aspect of law has been raised by the counsel for the applicant that enquiry report is not given and the notice of second show‑cause was given for personal hearing. Indeed, in view of the judicial precedents and the; pronouncements of the superior Courts, the emphasis regarding enquiry report' has been made as a mandatory observance. This Labour Court, previously also; has been taking view that the enquiry report is the right of the person to know,, what is the adverse finding, to make representation, review or an appeal.
10. In this case, the enquiry report first time is placed, in the Court on the request by the counsel. What is necessary to be pointed is that it was equally; obligatory for the party to ask for the enquiry report, by making application in writing, and to give confidence that such attempt was made. But it was disallowed for otherwise every person accused of misconduct can take protection of this technicality, what has been found as experience in the Court's decision to affect the cases. What the Court emphasises is that justice is the basic concept to avoid technicalities, in the context of the realism of the approach. If enquiry report now has been acted upon and not shown that it was a false report or the enquiry document very well reveals that the series of absences are admitted except showing the disability, now there is no prejudice if on the same report the applicant has tested the accuracy of the credibility of the management's officials.
11. Regarding second show‑cause notice the Court is referring decision of P L D 1981 S C 225. The observations respectfully read:
"Issuance of second show‑cause notice of personal hearing is not the mandatory requirement of law unless provided by some statutory or departmental rules."
12. This reference was made when learned Labour Court Judge of Vth Court referred by going through 1986 PLC 1018 of which the Court has also referred in case of Haider Zaman v. Mohammad Farooq Textile Mills.
13. In the result, therefore, if the medical certificate has been made as a basis from the Medical Officer of the Steel Mill, the Court allows the application subject to the minor punishment of reprimand, in view of the discussion in the judgment and expects that applicant will avoid absences in future except of the compelling reasons, to appeal to the management within their discretion. The absence's days will be treated without pay, unless the leave is outstanding whether from Medical leave or from Earned leave. He is reinstated. He cannot be allowed the back benefits when his entire absences have remained, history of the sense of duty where different kinds of medical certificates are produced and discussed casually in the context whether the medical illness is real. If in the days of absence which is in the basis of charge‑sheet, the Court has allowed reinstatement, it is because the medical certificate of respectable Medical Officer has been believed. But his previous medical certificate has remained under discussion. Copy of the decision of Court of law be sent to Medical Officers, by the Steel Mill.
Application is allowed of reinstatment subject to reprimand.
A.E/1132/Lb. S Application allowed.