1989 PLP 116 (PLC)

‑‑‑S. 15(4)‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3)‑ Dismissal for misconduct‑‑Domestic enquiry‑‑Defective procedure, effect of‑ Request of accused for being allowed to be represented m enquiry by another worker of his choice not allowed‑‑Accused, held, was prejudiced by such refusal hence was rightly awarded re‑instatement by Labour Court‑‑Case was that of fresh enquiry but fresh enquiry not allowed for reasons that matter remained ending for long time. Muhammad Saleem Khan for Appellant. Ch. Ghulam Rasul for Respondent. Date of hearing: 1st November, 1987. This is an appeal emerging from the decision dated 14‑2‑1979 passed by learned Presiding Officer, Punjab Labour Court No. 1, Lahore whereby the respondent was directed to be reinstated in service with back benefits.

2. The allegation against the respondent was that he had lost the file of a disciplinary case. The respondent had taken the plea that he had delivered the file to Mohsan Hashmi who had not been examined by any of the parties during the enquiry. The learned lower Court reinstated the respondent on the ground that the request of the respondent for the appointment of Mr. Muhammad Ishaque as representative in the enquiry was rejected. The ground on which Mr. Muhammad Ishaque was not allowed to represent the respondent was that he was serving in the training institution which was a different establishment. The case of the respondent was that the said institution was part of P.R.T.B. and had no separate entity. In appeal the order of the learned lower Court was set aside and the grievance petition of the respondent was dismissed but the High Court has remanded the case for reconsideration and re‑decision of the point whether Muhammad Ishaque could be appointed as representative of the respondent.

3. The respondent has examined one witness namely Muhammad Ishaque besides appearing as his own witness. On behalf of the appellant Mr. Abdur Rashid, Stenographer and Mr. Nazir Ahmed, Assistant have been examined. R.W.1 deposed that there was a training school which was branch of the Saddar Depot. About the respondent he deposed that he was in Saddar Depot in those days which was under the Administrative Control of the District Manager. He added that at the time he was appointed by the respondent as his assistant he and the respondent were employed m the same Depot i.e. Saddar Depot. In cross-examination he said that he was in the training school of Saddar Depot in 1978 and the respondent was not working in that training school though the bills of the salary of the employees working in the training school and the branch where the respondent was working were prepared jointly and that the Principal of the school was under the District Manager of Saddar Depot. The respondent deposed that the training school in which he was employed was under the control of the District Manager of Saddar Depot and the bills of the employees working in the training school and the said Depot used to be prepared jointly, that leave applications of the employees working in the training school were sanctioned by the District Manager Saddar Depot and that the employees working in the training school and in the Saddar Depot were inter‑transferable. A.W.1 did not depose anything on the point whether the training school was a separate entity or a part of the Saddar Depot. However, A.W.2 deposed that the Manager of the school and District Manager were different persons and the administration was separate. In cross‑examination he showed his inability to state who used to sign the bills of the establishment of the training school and of the Depot. He also showed ignorance if the District Manager of the Saddar Depot used to sanction leave applications of the employees of the institution. Likewise he did not know if bonus of the employees of the institution and Depot were calculated jointly. He admitted that Accounts Officer and Superintendent for both were one and the same. He also admitted that overall control over the Saddar Depot and the institution was of the District Manager who used to sign bills of employees of both the branches. The solitary statement of Nazir Ahmed did not rebut the evidence of the statement of the respondent of R.W.1. The admissions made by A.W.2 in cross‑examination support the evidence produced by the respondent. It is, therefore, proved that the institution had no separate entity but was part of the Saddar Depot and was under the control of the District Manager of the same Depot. Since the two branches had no separate entity it cannot be said that Muhammad Ishaque was employed in a different establishment. In these circumstances the request of the respondent for the appointment of Muhammad Ishaque as his representative was genuine and was wrongly refused. Since Muhammad Ishaque was not allowed to represent the respondent, the latter was justified in not attending the enquiry. However, the point was not very simple and it cannot be said that in order to deprive the respondent of proper assistance his request was refused. Since nature of the duties performed in the institution and in the Depot is different, the Management appears to be in doubt, whether Muhammad Ishaque could be appointed as assistant of the respondent in the enquiry. But since the respondent had a right of to be represented by a person of his choice, he was prejudiced by the refusal and in these circumstances he has been rightly reinstated by the learned lower Court in service. It was a case of fresh enquiry but since the case has remained pending for a long time I do not deem it proper to allow fresh enquiry. Since the appellant did not act mala fide in refusing the assistance of Muhammad Ishaque to the respondent in the enquiry I modify the order of the learned lower Court to the extent it allowed back benefits to the respondent. However, the respondent will be entitled to the wages for the period from the date previously the appeal of the appellant was accepted upto the date the writ petition was accepted and the case was remanded. A.E./458/Lb. P Order accordingly.