1991 PLP 216 (PLC)

These two appeals are directed against the order of the learned Presiding Officer, First Sindh Labour Court at Karachi, dated 4‑4‑1989, whereby he ordered reinstatement of the workman M. Mustafa Kamil, hereinafter called the `respondent' without back benefits. The employer M/s. Karachi Shipyard & Engineering Works Limited, hereinafter referred to `appellant' filed Appeal No.KAR‑272 of 1989 against the order of reinstatement whereas the respondent filed Appeal NOXAR‑278 of 1989 against the order refusing him back benefits.

2. The brief facts of the case are that the respondent was admittedly employed as Clerk by the appellant at the relevant time. On 22‑12‑1983, he applied for 40 days Special Leave (Ziarat) for visiting Iran. He was granted 40 days (Ziarat) Leave with pay w.e.f. 8‑1‑1984 to 16‑2‑1984 and 14 days leave without pay from 17‑2‑1984 to 1‑3‑1984. On return from leave, the respondent was asked to produce necessary documents regarding performance of Ziarat vide letter dated 19‑3‑1984 and subsequent reminder dated 12‑4‑1984. On 22‑4‑1984, he informed the appellant that the passport and other documents were lost. A preliminary enquiry was held by Mr.M.Siddiq Oureshi. The Immigration Department informed the appellant by letter dated 20‑1‑1985 received by them on 27‑1‑1985 that the respondent had neither entered nor left Pakistan via Taftan Check Post. The respondent was charge‑sheeted on 31‑1‑1985 and after domestic enquiry he was dismissed from service vide letter dated 4‑7‑1985. The respondent after serving grievance notice upon the appellant filed grievance petition before the learned Labour Court which was resisted by the appellant on the ground that charge was duly proved against the respondent in the domestic enquiry. 3. 1 have heard Mr. Ch. Rasheed Ahmed, learned Advocate for the appellant and Mr. Mirza Muhammad Kazim, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

4. On the pleadings of the parties the learned Labour Court framed the following issues:‑ (1) Whether the charge‑sheet was time‑barred? (2) Whether the applicant has been dismissed from his service during the pendency of legal and valid industrial dispute without permission of Labour Court and his dismissal is contrary to section 47 of the I.R.O., 1969? (3) Whether the dismissal of the applicant is illegal and contrary to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the applicant is entitled for the relief prayed by him?

5. During the course of arguments Mr. Ch. Rasheed Ahmed, submitted that under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 no formal charge‑sheet has to be drawn but only the misconduct is to be brought to the notice of the respondent. He contends that first time misconduct was brought to his notice vide letter dated 19‑3‑1984. 1 am afraid that I cannot accept his arguments as the parties cannot go beyond the pleadings. The appellant claimed in the written statement, that for the first time they came to know was from the letter of Immigration Authorities which was received by them on 27‑1‑1985 and therefore, charge‑sheeted him on 31‑1‑1985. The letter dated 19‑3‑1984 does not appear to be produced before the learned Labour Court nor does it appear in the enquiry proceedings, nor reference is made to it in the enquiry report. The Enquiry Officer while dealing with the plea of the respondent with regard to limitation has given his opinion as under:‑ "The contention of the workman which he stated in his explanation dated 7‑2‑1985 to the charge‑sheet and again in his application dated 19‑5‑1985 that the charge‑sheet issued to him is time‑barred is not correct as it was issued on 31‑1‑1985, which was just after four days of confirmation of misconduct having committed by Mr.M.Mustafa Kamil, known to the charge sheeting authority."

6. From this opinion of the Enquiry Officer it would be seen, that the appellant was already aware of this misconduct, but it was confirmed from the letter of the Immigration Authorities on 27‑1‑1985. It may be pointed that the preliminary enquiry conducted by Mr. Siddique was started against the respondent in 1984. The report of Mr. Siddique which has also be relied upon by Mr. Zaheeruddin, Enquiry Officer has not been produced. However, all these facts indicate that the appellant had the knowledge of misconduct much before 31‑1‑1985 when even according to the appellant for the first time the respondent was charge‑sheeted. The act of misconduct was allegedly committed by the respondent in January to March, 1984. Under the Standing Order 15(4) the misconduct has to be brought to the notice of the workman within one month from the misconduct or from the date of knowledge of the employer. Admittedly the charge‑sheet dated 31‑1‑1985 is much beyond one month from the date of the alleged misconduct, therefore, burden of proof was upon the employer to show that it came to his knowledge within one month from the date of the charge‑sheet. It may be pointed the letter of the Immigration Authorities which is referred to and relied upon by the Enquiry Officer has neither been produced before the learned Labour Court nor it appears in the enquiry papers. It appears from the circumstances and facts of the case that the appellant was aware of the misconduct even in 1984, but he did not bring it to the notice of the respondent but entered into investigation. As a matter of fact investigation/enquiry under, Standing Order 15(4) should follow the service of notice or charge‑sheet and not precede it. The learned Labour Court, therefore, rightly held that the charge sheet was time‑barred. .

7. I further find from the enquiry report, that the Enquiry Officer mainly based his report on the letter of Immigration Authorities and preliminary report of Mr. Siddique. It appears that neither Mr. Siddique nor the writer of letter dated 20‑1‑1985 was examined before the Enquiry Officer and, therefore, the respondent was deprived of his right to challenge their averments by cross- examining them. It will be against the principles of natural justice to base adverse finding upon the report of persons, whom the accused person did not have opportunity to cross‑examine.

8. The dismissal order of the respondent is not only violative of Standing Order 15(4) but is also based on the report of Enquiry Officer, which as pointed above, is unfair and against the principles of natural justice. Such dismissal order is not sustainable and has rightly been set aside by the learned Labour Court.

9. In view of the above, I need not discuss other points raised by the appellant. I, accordingly dismiss the Appeal No.KAR‑272 of 1989 filed by the appellant.

10. The learned Labour Court has pointed out that neither in the grievance i application nor in his affidavit‑in‑evidence the respondent has averred that during the intervening period he was jobless. As such, the learned Labour Court has rightly refused him the back benefits. Mr.M.M.Kazim under the circumstances does not press his appeal for back benefits. I, therefore, dismiss the Appeal No.KAR‑278 of 1989 filed by the respondent. M.Y.H./1668/Lb.S Appeals dismissed.