1984 PLP 489 (PLC)

(b) Industrial dispute‑-- ‑‑Dismissal for misconduct‑Charge of absence for more than ten days‑Enquiry report establishing charge‑Competent authority on receipt of enquiry report serving a notice upon accused that his guilt proved but Management did not want to take serious view and that he had been reprimanded and further asked him to report for duty Accused not reporting for duty‑Competent authority passing dismis sal order‑Punishment of reprimand being unconditional accused, in circumstances, held, could not be punished twice thus subsequent dismissal order not legal‑Reinstatement with fifty per cent back benefits awarded by Labour Court upheld by Appellate Tribunal Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3). Mian Muhammad Yasin for Appellant. Ch. Ghulam Qadir Cheema for Respondent. Date of hearing : 10th May, 1982. In this appeal the decision, dated 19th April, 1978 passed by the learned Presiding Officer, Punjab Labour Court No. 9, Multan has been challenged, whereby the grievance petition of the respondent was accepted and he was directed to be re‑instated in service with fifty per cent wages.

2. The respondent was given a charge‑sheet Exh. P. 3 on 23rd August, 1976 on the allegation that he had remained absent without leave for more than ten days. An enquiry was held against him, which culminated in his dismissal.

3. The stand taken by the respondent was that he had been stopped at the gate of the factory and was asked to sever his connection with the union as the others had done and then he would be allowed to work. Earlier in his absence the respondent was transferred as doffer to the frame section and this was the cause of trouble and his becoming absent from duty. After the completion of the prosecution evidence, the respondent was asked by the Enquiry Officer to produce his defence and to come in the witness‑box, but the respondent said that the authority who had transferred him to frame section namely Imtiaz Ali be summoned as prosecution witness, so that he could cross‑examine him and, thereafter, he would produce his defence and would make his own statement. The Enquiry Officer told him that the prosecution could not be forced to examine that witness and that if he (the respondent) wanted to examine Mr. Imtiaz Ali, he could be sum moned as defence witness, but the respondent ins1sted that Mr. Imtiaz Ali be summoned and examined as prosecution witness and since his request was not acceded to, he neither made his own statement in defence, nor examined any other witness. The learned trial Judge re‑instated the respon dent on the ground that the prosecution had not proved that the respondent had not been stopped at the gate and that only this much was proved that the respondent was absent without leave. The evidence in negative is not to be produced. Since it was the contention of the respondent that he had l been stopped at the gate not allowing him to perform his duty, the onus was upon the respondent to prove the said plea.

4. However, on other grounds the order of re‑instatement of the respondent appears to be correct i. e. that after the Enquiry Officer returned the verdict of guilty against the respondent, the competent authority instead of taking action sent a notice to the respondent telling him that his guilt had been proved but the Management did not want to take serious view of the matter and informed him that he had been reprimanded and asked him to report for duty. When in spite of the said notice, the respondent did not report for duty, the dismissal order was passed against him. In the notice non‑appearance was not made a condition for dismissing the respon dent, nor the punishment of reprimand was made conditional. Since action had been taken‑against the respondent for his absence without leave by recording an order of reprimand against him, he could not be punished twice, therefore, the subsequent punishment of dismissal was not legal. I after that the respondent had remained absent without leave for more than ten days, he could have been proceeded against afresh and if the absence proved could have been dismissed. In these circumstances, the order of re instatement with fifty percent wages cannot be d1sturbed. The appeal, therefore, is dismissed. A. E. Appeal dismissed.