1976 PLP 67 (PLC)

(1) That petitioner was employed on 13-I1-1969 and was dismissed from service on 27-11-75 on the charge of misconduct. (2) The dismissal of the petitioner was illegal and void due to the fact that no enquiry was held against the petitioner which was legally necessary. (3) That no second show-cause notice was given to the petitioner before dismissal. (4) The charges on the basis of which dismissal order was passed do not constitute misconduct. (5) The respondent did not comply with the provision of Standing Order 15 (4) of West Pakistan (Standing Orders) Ordinance, 1968. (6) The petitioner filed a petition under section 25-A of I.N.C., 1969 against his dismissal before Junior Labour Court which was dismissed for want of jurisdiction due to enforcement of Essential Services (Maintenance) Act, 1952 to the respondent's Project and the appeal of the petitioner was also dismissed by the Punjab Labour Court No. 2 on the same ground hence the present petition before the NIRC.

2. The respondent was ordered to submit written reply to the petition which was submitted by him on 9-10-1974. In view of the preliminary objections the petitioner was ordered to file replication which was duly filed on 24-10-1974. As the respondent had raised a preliminary objection regarding the jurisdiction of NIRC to entertain such like petitions, which objection was also raised in many other cases pending before me hence this was fixed for arguments alongwith other cases and vide my detailed order dated 30-12-1974, the preliminary objection was submitted by him on 9-10-74. In view of the preliminary objection the learned Chairman and the Member, NIRC authorised by him in this behalf had the jurisdiction to entertain such like petitions. The case was thereafter fixed for consideration on merits. The parties and their learned counsel were heard at length on 8-1-1975, regarding the merits of the case and the file of the case was also carefully gone through by me. The arguments of the learned counsel of the parties and the perusal of the file showed that the petitioner was served with a show-cause notice on the allegation that after joining employment in the respondent's establishment, the petitioner remained in the service of P.O.F. (Wah) (as is evident from discharge certificate, copy Annexure A on the file). Copy of show-cause notice is Annexure A/I on the file, the show-cause notice was duly replied to by the petitioner (Copy of his reply is Annexure B on the file) which shows that the petitioner had denied the charge levelled against him and stated that he had submitted application for resignation from P.O.F. (Wah) in October 1969 on the ground of illness. The result of application was not made known to him by P.O.F. (Wah) and the petitioner being under the impression that he had resigned from his previous post in Wah Factory did not go there at all and applied for employment to the respondent and was employed on 13-11-1969. It was afterwards that he came to know that the Wah Factory considered him absent. That he could prove these facts. The respondent considered the reply to be not satisfactory and served the petitioner with a second show-cause notice dated 8-11-1973. The second show-cause notice was also replied to by the petitioner (copy of the reply Annexure D on the file) denying the charge levelled against him and further stating that if required he could get his contention certified from the Wah Factory. Thereafter, the respondent on the basis of office note passed the following order dated 21-11-1973. This is a misconduct and therefore, I order his dismissal from service. A formal order of dismissal was passed by the respondent on 27-11-1973. I have given serious thought to the arguments of the learned counsel for the parties. It was contended by the learned counsel for the respondent that the petition was much belated because the petitioner was dismissed on 27-11-73 and the present petition was lodged on 22-8-1974, but this argument loses force in view of the fact that the petitioner has not been sleeping over his right and has been trying to get his grievance redressed during this period from the Junior Labour Court and the Punjab Labour Court No. 2 who dismissed his petition, for want of jurisdiction due to the enforcement of Essential Services (Maintenance) Act, 1952 to the respondent Project.

3. Moreover, when all is said, the fact remains that after denial of charges levelled against him, in his reply to the show-cause notices in view of the mandatory provision of Standing Order 15(4) of West Pakistan Standing Orders (Ordinance) 1968, which is quite in conformity with natural A justice and equity, it was incumbent on the respondent to institute independent enquiry before dealing with the charge against the petitioner. It has been held in 1972 P L C 327, para. 15 by Mr. Justice Nasim Hasan Shah that I may add that I should not be understood to mean that employer could proceed to take action merely after serving the workman with a charge-sheet and obtaining a written reply from him. It is established law that if charges are levelled against a person which raise questions of fact and these are challenged by a person concerned, it becomes bounden duty of the authority, levelling the charges to hold an enquiry into them after giving a fair opportunity to the person complained against to offer his defence, if he is so advised. See Rehanuddin v. Government of West Pakistan (P L D 1958 Lab. 486). The judgment was upheld by the Supreme Court of Pakistan reported in Supreme Court Monthly Review 1973, page 453 wherein it has been held that in our opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an oppor tunity to show why the order of dismissal should not be passed against him. Evidently an opportunity must take the form of written show-cause notice to the respondent. The mere fact that the respondent had a personal audience with his employer when he asserted he was not guilty, could not replace the aforesaid requirement of law.

4. In view of the above discussion the respondent having contravened the mandatory provision of Standing Order 15 (4) of West Pakistan Standing Orders (Ordinance), 1968, by instituting no enquiry whatsoever the order off", dismissal of the petitioner pasted by the respondent cannot be held to be justified. Hence, I direct as under: - (1) Mohammad Daud son of Rehmat Din ex-Fabricator, Class II, H.M.C., Taxila, Ticket No. 269 be re-instated as such. (2) The petitioner Mohammad Daud, having been dismissed on 27-11-1973 and instead of approaching the right forum (the then Central Labour Commissioner) he chose to approach the Junior Labour Court and the Punjab Labour Court No. 2 which resulted in much lapse of time and subsequently approached the NIRC on 22-8-74 and in view of the fact that he did not do any work in the respondent's Project after 27-11-73 I do not consider it just and equitable to burden the respondent with payment of back benefits to the petitioner, hence I direct that period commencing from 27-11-1973, up to the date of his re-instatement be treated as leave without pay so that there should be no break in the service of the petitioner.