1993 PLP 163 (PLC)

Shabbir Ahmed Bhutta for Appellant. Ch. Altaf Hussain for Respondent. Date of hearing: 28th January, 1992. The appeal captioned above arises from the decision dated 8‑12‑199'_ recorded by learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur whereby the grievance petition of the appellant for his reinstatement in service has been dismissed.

2. The allegation contained in the charge‑sheet Exh. P‑1/R‑1 was that the appellant had refused to clean the hopper when the Fireman asked him in this respect. In reply to the charge‑sheet which is Exh. P‑2 the appellant had denied the allegation and an enquiry was ordered. No prosecution witness was examined. Exh. R‑10 is the application of the appellant wherein he admitted that he had committed a mistake and had refused to carry out the order of Muhammad Arshad. Exh. R‑10 was given by the appellant after the enquiry report had been prepared. Since the appellant had denied the charge in reply to the charge‑sheet it was necessary for the respondent to produce evidence during the enquiry to prove the charge. The charges were read out to the appellant during the enquiry but his separate statement was‑not recorded and in the order in which it is mentioned that the charge had been read out it is also recorded "I seek pardon. I will not commit such a mistake in future". Even this statement could not be recorded before recording prosecution evidence since the appellant had already denied the charges in reply to the charge‑sheet.

3. The other thing is that the refusal of the appellant to carry out the order of the Fireman did not amount to misconduct because the Fireman was not his Incharge. DW‑1 examined in the learned lower Court admitted in cross‑examination that the Incharge of the appellant was Mr. Baqir and that Mr. Baqir had never ordered the appellant to clean the Hopper, Clause (a) of Rule 3, Order 15 reads as under:‑‑ "Wilful insbordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior." The Fireman not being the superior and Incharge of the appellant could not order the appellant to clean the Hopper. According to the very charge‑sheet the appellant had said that he would not carry out the order of Mr. Muhammad Arshad unless some superior officer had given him direction. This refusal, thus, did not amount to misconduct. The learned lower Court did not advert to this aspect of the case and erred in dismissing the grievance petition. So the dismissal order is not sustainable.

4. So far as the question of back benefits is concerned, learned counsel for the appellant has not pressed it and has said that the appellant would feel satisfied if he is reinstated in service.

5. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision and the order of dismissal the appellant is directed to be reinstated in service without back benefits. H.B.T./742/Lb.P ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.