1989 PLP 739 (PLC)

‑‑‑Ss.25‑A & 38(3)‑‑Grievance petition against dismissal for misconduct‑‑Enquiry officer alleged to be biased‑‑Allegations against Enquiry Officer leveled in grievance petition as well as in affidavit‑in‑evidence‑‑Enquiry Officer not produced and examined before Labour Court‑‑Labour Court not drawing any adverse inference due to non‑production of Enquiry Officer nor recording reasons for not drawing such inference‑‑Order of Labour Court was set aside and case remanded with direction to employer to produce Enquiry Officer before Labour Court to consider merits of case and to decide it afresh. Messrs Souvenir Tobacco Co. Ltd. v. Sind Labour Court No.2 and others 1987PLC605rel. Muhammad Ashraf Khan for Appellant. Iqbal Akhtar for Respondent. Date of hearing: 16th March, 1989. This appeal is directed against the order of the learned Presidng Officer, Sind Labour Court No.I at Karachi, dated 8‑10‑1988.

2. The brief facts of the case arc that the appellant admittedly was an employee of the respondents. He was charge‑sheeted for remaining absent for more than 10 days without leave and was dismissed from service after domestic enquiry. After serving grievance notice upon the respondents, he filed the grievance petition which was dismissed by the learned Labour Court. The respondents resisted the petition on the ground that it was time‑barred and that the appellant was held guilty of the misconduct by the enquiry officer in the legally held domestic enquiry.

3. I have heard Mr.Muhammad Ashraf Khan the learned Advocate for the appellant and Mr.lqbal Akhtar, the learned Advocate for the respondents.

4. The learned Presiding Officer held the grievance petition as time‑barred as he did not exclude the period consumed by the appellant in the proceedings before the Civil Court on the ground that in the Civil Court, the appellant had challenged the legality of the show‑cause notice and had asked for restraining the respondents from acting upon or giving effect to the same but did not seek any relief against the order of dismissal though the order of dismissal was passed during the pendency of the said proceedings. I am unable to agree with the learned Labour Court as if the show‑cause notice had been held to be illegal, all the subsequent proceedings would also have become illegal. The mere fact that the appellant did not amend the plaint seeking the relief against the order of 1 dismissal would not deprive him from getting the period spent in the civil litigation to be computed towards the period of limitation. If this period of litigation is excluded then the grievance notice and the grievance petition would be within time. The appellant had relied upon the case reported in 1987 P L C 479 before the learned Labour Court. The instant case does not appear to be distinguishable from the reported case and as such in my opinion, the grievance petition would not be time‑barred. The decision of the learned Labour Court with regard to the limitation is set aside.

5. On merits, the main ground of the appellant was that the enquiry officer was biased and did not conduct the enquiry in fair and impartial manner. He has levelled allegations against the enquiry officer in his grievance petition as well as in his affidavit‑in‑evidence. However, the enquiry officer has not been examined to rebut or deny the allegations. Before the learned Labour Court, the appellant had relied upon the case of Messrs Souvenir Tobacco Co. Ltd. v. Sind Labour Court No. 2 and others 1987 P L C

605. In the reported case, the learned Single Judge of the High Court of Sind has held that it was incumbent upon the petitioners (employers) to produce enquiry officer in order to rebut the allegations made by the respondent No. 1 duly supported through evidence against him. In that case due to non‑production of the enquiry officer an inference was drawn by the learned Labour Court against the employer and the inference was also confirmed by the Appellate Tribunal. The High Court held that the inference drawn by the Sind Labour Court as well as by the Appellate Tribunal was in consonance with law and the High Court declined to interfere with just and lawful order. 5‑A. In the instant case though this case was cited by the learned Labour Court, but, it has not been discussed. The learned Labour Court has not drawn any adverse inferene dur to non‑production of enquiry officer nor has given any reason for not drawing adverse inference against the respondents for non- examination of the enquiry officer. Under the circumstances, without going into merits I set aside the impugned order and order retrial of the case with the directions to the respondents to produce the enquiry officer before the learned Labour Court. The learned Labour Court to give fresh decision on merits unprejudiced by the previous order. If the respondents fail to produce the enquiry officer, the learned Labour Court to consider merits of the case keeping in view the failure of the respondents to produce the enquiry officer. A.E./1427/Lb. S Retrial of case ordered.