1993 PLP 612 (PLC)

This appeal has been moved under section 37(3) of the Industrial Relations Ordinance to call in question the correctness of the decision, dated 23‑2‑1991 of the learned Presiding Officer, Labour Court, Peshawar. Where by while accepting the grievance petition filed by the petitioner respondent it was ordered that he be reinstated in his job with all pecuniary benefits.

2. The relevant background, giving rise to the litigation between the parties as contained in the petition under section 2,5‑A and the other materials on record is that the petitioner‑respondent was employed as Shift Chemist by the appellant on 14‑1‑1982. Through a show‑cause notice dated 24‑5‑1989 Exh. P.W.1/2 the petitioner‑respondent was asked to explain the following:‑‑ "On 23rd May, 1989 the undersigned who was Night Duty Officer found you missing from the place of your duty at 22‑45 hours. Explain your position that why you left the place of your duty without waiting for incoming Shift Chemist and giving him the charge properly." The reply of the petitioner as contained in Exh. PW.1/3 having been found unsatisfactory an enquiry as per Exh. PW.1/4 was ordered in the matter. The Enquiry Officer found the respondent guilty of the charge and accordingly recommended his dismissal. The Manager Administration by his order dated Z3‑6‑1989 Exh. PW.1/6 accordingly dismissed the respondent. The grievance notice Exh. PW.1/7 was rejected on the ground of its incompetency. Thereafter, the grievance petition was filed before the Labour Court. 2‑A. At the trial the respondent‑petitioner appeared as his own witness and supported whatever had been stated in the grievance petition while on behalf of the appellant Muhammad Yousaf, Technical Manager appeared as RW‑1 who had conducted enquiry into the allegation against the petitioner respondent. He brought various documents from the enquiry record on the case file.

3. I heard the learned counsel for either side and studied the record.

4. The perusal of the decision of the learned Presiding Officer, Labour Court reveals that it had come to the conclusion that the show‑cause notice if at all is to be treated a charge‑sheet was not issued by the employer as it had been issued by the Production Manager. It has also been held that the Enquiry Officer was not appointed by the employer and accordingly the entire proceedings are null and void for want of jurisdiction. The learned counsel for the appellant was unable to controvert the correctness by referring to anything on the record of the case to show that the persons issuing the charge‑sheet or ordering the enquiry were competent to do so as employer. In absence of pointing out anything contrary to whatever was held by the Presiding Officer, Labour Court, I am left with no option but to hold that neither' the charge -sheet nor the order of starting the enquiry were made by the competent authority and accordingly I would confirm the finding of the Presiding Officer, Labour Court on this count. The next finding of the Presiding Officer, Labour Court is to the effect that even if the show‑cause notice is treated as a charge- sheet that would not be covered by any of the clauses of 15(3) of the Standing Orders Ordinance. The respondent was held guilty by the Enquiry Officer of remaining absent from his duty on 23rd May at 2245 hours. Even if this charge is established the alleged solitary absence on one occasion and that too for a short time would not fall under the definition of (habitual) absence. Moreover, it was admitted by the Enquiry Officer in his statement that during the enquiry all the witnesses were present and their statements were recorded at the same place and in the presence of one another. This procedure has also caused miscarriage of justice and has resulted into material irregularity and has definitely prejudiced the respondent.

5. I have not been persuaded to differ in any way with the conclusion reached by the Presiding Officer, Labour Court and accordingly dismiss this appeal with no order as to costs. H.B.T./158/Lb.N Appeal dismissed.