1990 PLP 687 (PLC)

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss. 25‑A & 38(3)‑‑‑Grievance petition for reinstatement‑‑‑Back benefits‑‑ Petitioner stating to have constructed a small shop and earning his livelihood during intervening period by selling goods in that shop‑‑Quantum of earning per month not disclosed ‑‑‑Held petitioner was not entitled to back benefits. Asghar Mahmood for Appellant. M. Aslam Kalyar for Respondents. Date of hearing: 5th June, 1989. This is an appeal directed against the decision dated 22‑2‑1989 recorded by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad, whereby the grievance petition of the appellant for his reinstatement in service has been dismissed.

2. The ground on which the appellant was dismissed from service was absence without leave for about five months. But this is an admitted fact that the appellant had been sending leave applications. The copies of the leave applications are Exhs. P‑2 to P‑8 produced before the learned lower Court. Postal receipts under which they were sent are Exhs. P‑9 to P‑

15. The charge‑sheet was issued and inquiry notice was sent at the home address of the appellant but he had given his fresh address for the leave period in his applications for leave. Therefore, the charge‑sheet and inquiry notice should have been sent at the said address. The said documents were received by the brother of the appellant, but a brother not being an adult male member of the family, service upon him was not proper. The learned lower Court says that since the copies of the medical certificates were not produced in the Court, the assertion of the appellant was wrong that they were sent to the respondent alongwith the leave applications. On the face of it this ground given by the learned lower Court is not cogent to disbelieve the appellant in this respect. If an inquiry had been held in the presence of the appellant, he may have produced copies of the medical certificates. Since neither the charge‑sheet nor the inquiry notice was sent at the fresh address of the appellant, there was no justification in holding ex parte inquiry and thus the appellant was condemned unheard. Of course if the appellant had not furnished fresh address, the respondent would have been justified in sending the charge‑sheet and the inquiry notice at his home address and to hold ex parte inquiry. On such an inquiry, therefore, the dismissal order cannot be based and thus is not sustainable. The learned lower Court wrongly accepted the service of charge‑sheet and inquiry notice on the ground that they were received by the brother of the appellant, but there is no evidence that the brother of the appellant had delivered the said documents to the appellant. If the documents had been delivered to some adult male member of the family, of course, it could be presumed that they had been delivered to the appellant by a person who had received them. Adult son can be an adult male member of the family but not a brother.

3. So far as back benefits are concerned, the appellant is not entitled to the same. He had in his statement deposed that he had constructed a small shop and was earning his livelihood by selling goods therein. He has not disclosed the quantum of his earning per month.

4. As a result of the discussion made above, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the order of dismissal, the appellant is directed to be reinstated in service without back benefits. A.E./695/Lb. P Appeal accepted.