1994 PLP 148 (PLC)

‑‑‑‑S. 2(c)‑‑‑"Employer"‑‑‑Definition‑‑‑General Manager whether "employer"‑‑ General Manager who was head of Department, could be classified as employer and was competent to pass dismissal order against employee. (c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑S. 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15‑‑‑Dismissal on charge of misconduct‑‑‑Employee was dismissed on charges that he had misappropriated amount which he had received in excess of fare from passengers and allowed certain passengers to travel without tickets‑‑‑Employer contended that it could not compel attendance of passengers in Court from whom excess amount of fare was charged by employee or also were allowed by employee to travel without tickets in order to prove charges against employee‑‑‑Contention of employer was repelled as burden was on employer to have proved charges levelled against employee and to discharge that burden employer should have adopted all necessary measures‑‑‑Employee could not be held guilty on account of inability or lapses of employer in circumstances. Muhammad Latif for Appellant. Nisar Ahmad Khan for Respondent. Date of hearing: 29th May, 1993. The appellant being dissatisfied with the decision of the learned Presiding Officer, Labour Court, Peshawar dated 19‑6‑1991, whereby while accepting the grievance petition of the respondent he was reinstated in service.

2. The relevant facts are that the respondent was employed as Conductor by the establishment of the appellant but he was dismissed from service on 28‑12‑1988 on the charges that he has misappropriated some amount as he had received excess amount of fare from eleven passengers while he was carrying three passengers without any ticket. The grievance notice of the respondent having proved unsuccessful he preferred grievance petition which was accepted through the impugned order.

3. The learned counsel for the appellant while making submission regarding the issuance of the charge‑sheet beyond the prescribed period of limitation argued that the petitioner‑respondent was on sick leave in his village, therefore, it was not thought advisable to serve him with a charge‑sheet at his home address, because, firstly, the service of charge‑sheet was not that much necessary and secondly, that would have harmed the petitioner in deterioration of his health and would have caused him mental agonies. This argument is rather ridiculous. It is mandatory in law in term of Standing Order 15(4) of the Standing Orders Ordinance that no order of dismissal shall be made unless the worker is informed in writing within one month of the alleged misconduct and is given opportunity to explain the circumstances alleged against him. It was, therefore, mandatory requirement of law that notice should have been given within one month of the knowledge of the charge, however, therein no denying the fact that in this case the charges were framed on 1‑7‑1988 but the notice was given on 29‑8‑1988 which being beyond one month, therefore, no dismissal order could be passed on the basis of such belated charges. The decision on this count of the learned trial Judge is perfectly correct and needs no interference. It was next submitted that the grievance notice was not served on the employer as in case of the respondent it was the Traffic Manager who was the employer and, therefore, the grievance notice should have been served on him but instead it was given to the General Manager. The learned counsel appearing for the respondent opposed this submission as according to him this was never raised before the learned appellate Court. Moreover, he also referred to the record to indicate lack of evidence for decision on this point. In any case under section 2(c) of Standing Orders Ordinance the General Manager who is head of the Department can be classed as employer and, therefore, was competent to pass the dismissal order. It was in the end argued that the Department could not compel the attendance of the passengers from whom excess amount of fare was charged or who were allowed to travel without ticket in order to prove the charges against the respondent. This argument will also hold no ground as the burden was on the appellant to have proved the charges levelled against the respondent and for that they shall have adopted all necessary measures. The respondent could not be held guilty on account of the inability or lapses of the appellant. The trial Court has, therefore, not flawed in accepting the grievance petition. I find no merit in the appeal and accordingly dismiss it without any cost. H.B.T./168/Lb.N Appeal dismissed.