1989 PLP 356 (PLC)

‑‑‑Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Order based upon findings of ex parte enquiry without due notice to accused workman‑‑Permission for fresh enquiry, whether necessarily to be given by Labour Court‑‑Charge of absence from duty for 14 days‑‑Name of Enquiry Officer incorrectly informed to accused resulting in failure of accused to appear before Enquiry Officer conducting enquiry and enquiry thus held ex parte‑‑Labour Court set aside dismissal order and permitted employer to hold fresh enquiry‑‑Held: It was discretion of Labour Court to permit fresh enquiry but before doing so nature of offence should have been considered‑‑Allegation, held, though amounted to misconduct but being not serious, ends of justice would have been met if dismissal order had been set aside without back benefits and permission for fresh enquiry should not have been given‑‑Appellate Tribunal maintained order of reinstatement without back benefits and permission for holding fresh enquiry set aside. Farooq Zaman Qureshi for Appellant. Muhammad Saleem Khan for Respondent. Date of hearing: 3rd October, 1987. The appeal captioned above emerges from the decision dated 22‑6‑1987 recorded by learned Presiding Officer, Punjab Labour Court No. 1, Lahore whereby the appellant was directed to be reinstated in service permitting the P.R.T.C. to hold fresh enquiry. The question of back benefits was left to depend upon the result of the fresh enquiry.

2. The allegation against the appellant was of absence from duty without leave from 29‑5‑1985 to 11‑6‑1985. The defect was that in the notice of enquiry issued to the appellant, the name of the Enquiry officer was mentioned as Inaam‑ur‑Rahim but the enquiry was head by Abdul Hameed for whose appointment as Enquiry Officer the appellant had not been informed. The appellant had appeared before Mr. Inaam‑ur‑Rahim who told me that his enquiry was to be held by Mr. Abdul Hameed but when the appellant appeared before the latter, ex parte enquiry had already been completed and report prepared. In these circumstances the employer should have again appointed an Enquiry Officer and given information to the appellant and could not have dismissed him on the report of the Enquiry Officer about whose appointment as such the appellant had not been duly informed. So the learned lower Court has rightly set aside the dismissal order passed on the enquiry which was not held in presence of the appellant for not any fault of his. No doubt, it was the discretion of the learned lower Court to permit fresh enquiry but before doing so the nature of the offence should have been considered. The allegation no doubt amounted to misconduct but was not a serious conduct. The charge was not of any misappropriation deriliction of duties or misbehavior before the employer. The ends of justice would have been met if the dismissal order had been set aside without allowing back benefits to the appellant. Learned counsel for the appellant has during the arguments said if the permission of fresh enquiry is set aside, he would withdraw his appeal and would not claim back benefits. Learned counsel for the respondent has not accepted this proposal but as I have mentioned above in the circumstances of the case permission to hold fresh enquiry should not have been necessarily given.

3. As a result the appeal is accepted and maintaining the order of reinstatement the permission of holding fresh enquiry is set aside disallowing the, back benefits to the appellant as requested by his counsel. A.E./451/Lb.P Appeal accepted.