1981 PLP 926 (PLC(CS))

Appellant in person. Malik Sher Muhammad for Respondent. Date of hearing : 9th February, 1981. The appellant, who was employed as a workman in the respondent industries, was dismissed from service with effect from 28th June, 1979, on two separate charges, the first being that he had disobeyed the orders of his transfer from one Department to another and the second that he had remained absent without leave for a period exceeding ten days. The dismissal orders are said to be based upon two separate charges- sheets, one dated 9th February, 1979, and the other dated 7th May, 1979. It appears that separate enquiries, though by the same Enquiry Officer, were held in respect of the above charges and separate enquiry reports made by the Enquiry Officer. In fact, in respect of the first charge‑sheet, dated 9th February, 1979, alleging disobedience of the transfer orders of the appellant, a dismissal order, dated 22nd March, 1979 is said to have been issued to the appellant, but the said order was withdrawn, by the letter of the respondent Industries, dated 29th May, 1979, as the appel lant was an office‑bearer of a Trade Union in the respondent company and the registration of the Trade Union was then under consideration before the Registrar of Trade Unions. The appellant challenged the orders of his dismissal before the learned Fourth Labour Court, which took the view that the two domestic enquiries were fairly and impartially conducted against the appellant and, accordingly, dismissed the appellant's grievance petition. The appellant has now come up in appeal to this Tribunal against the said decision of the Learned Labour Court.

2. I have heard the appellant, who appeared in person, and Mr. Malik Sher Muhammad, who appeared for the respondent‑Industries.

3. As already stated, the orders of dismissal from service of the appellant are based on two separate charge sheets, one dated 19th February, 1979, and the other dated 7th May, 1979. Although the enquiry proceedings and the report of the Enquiry Officer in respect of the first charge‑sheet, containing the allegations that the appellant refused to obey the orders of his transfer from one department to another, have been produced by the respondent Company in its reply statement, but these documents have not been proved, for they were neither put to the appellant, who was examined before the learned Labour Court, nor have they been admitted by him. Moreover, though the Enquiry Officer, Masood Rahat, was examined on behalf of the respondent‑Company, he has made no mention about the holding of the first enquiry nor has he stated that the enquiry proceedings or the enquiry report in respect of the first enquiry were conducted or made by him. It may finally be mentioned that the first enquiry admittedly was conducted ex parte and, therefore, the appellant could not be expected to have knowledge of what evidence, If any, was given against him in that enquiry. There is, thus, total absence of admissible evidence in respect of the first charge against the appellant. The requirement of subsection (5) of section 25‑A, I. R. O. is, as pointed out by their Lordships of the Supreme Court in the case of Crescent Jute Products v. Muhammad Yaqoob (P L D 1978 S C 207), that the Labour Court has to go behind a dismissal order and to see for itself as to whether in the facts and circumstances of the concerned case it was justified or not both on merits as well as law. Since no admissible evidence was adduced before the learned Labour Court in support of the first charge‑sheet obviously the learned Labour Court could not uphold the order of dismissal so far as the first charge sheet is concerned.

4. No doubt, the order of dismissal was based on two separate charge‑sheets and two separate enquiries and the learned Labour Court has held that the second enquiry was fairly and impartially conducted. However, where a dismissal order is based in two charge‑sheets or two separate allegations and one of them has not been established, the dismissal orders cannot be upheld, as the employer is presumed to have passed the orders of dismissal on the assumption that both the charges had been established against the workman and further more he could not but have been influenced by the finding of guilty even of the charge on which there is no admissible or tangible evidence. Support for this view is provided by the decisions of the Lahore High Court in the case of Chan Pir Shah v. Congothene Chemical Industries Ltd. (1981 P L C 981) and Sher Muhammad v. Basher Ali Khan (P L D 1962 Lah. 172). The latest ruling on this issue is contained in the decision of their Lordships of the Supreme Court in the case of Islamabad Club v. Punjab Labour Court No. II (P L D 1980 S C 307) in that case the Supreme Court while upholding the decision of the High Court in setting aside the order of dismissal passed against the workman observed as follows :‑ "The High Court seems to us to be right in observing that the employee was given notice of only one misconduct, namely, that of holding meetings during working hours in the Club premises without obtaining previous permission, yet the findings of the Inquiry Officer covered other matters also which disclosed far more serious‑acts of misconduct on the part of the respondent, which could not be said to be included in the original charge framed against him. We think that it is clear that the findings recorded by Inquiry Officer on matters, which were not included in the original charge, rust have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent. In the circumstances, it could not be said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no copy of the inquiry report was furnished to him and he was, therefore, not in a position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held, as the High Court has done, That the require ments of reasonable opportunity, as embodied in cause (4) of Standing Order No. 15, were not fulfilled in this case."

5. In the result, I would set aside the orders of dismissal of the appellants and order his re‑instatement in service. However, it would be open to the respondent‑Company to pass separate orders based on the charge‑sheet, dated 7th May, 1979. and the enquiries made in respect of the said charge sheet. I do not find this a fit case for the award of back benefits as, firstly, the dismissal orders of the appellant are being set aside on a purely technical ground and, secondly it would appear that the second charge regarding the absence of the appellant without leave for a period exceeding ten days had been duly established against him. Appeal accepted.