1989 PLP 690 (PLC(CS))

‑‑‑Ss. 25‑A(4) & 38(3)‑‑Direction in S.25‑A(4), Industrial Relations Ordinance that decision be given within seven days was merely directory as no words such as "and not more than that" have been used‑‑Labour Courts, being over‑burdened, it would be physically impossible for them to decide cases within seven days of the date on which they were brought to them. (c) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑S.38(5)‑‑Contempt of Court proceedings against employer for non‑compliance of Tribunal's direction‑‑Prayer on behalf of employee that employer be directed to pay back benefits and that no further action be taken against him‑‑Employer was directed to pay back benefits to employee within specified period‑‑No further action was taken against employer. H.R.Haider for Petitioner. Abdul Rashid for Respondents. Date of hearing: 22nd May, 1988. This is a petition brought under section 38(5) of the Industrial Relations Ordinance, 1969 for proceeding against the respondents and punishing them for committing contempt of Court.

2. The facts are that the petitioner was removed from service and he brought an application under section 25‑A of the Industrial Relations Ordinance, 1969 which was accepted on 3‑12‑1985 and he has directed to be reinstated in service permitting the respondents to hold fresh inquiry. It was further directed that subject to all just exception fresh inquiry, if started, should be completed within thre6 months of the date of the judgment and in the event of failure of holding or completion of inquiry, the petitioner would be entitled to back benefits. The case of the petitioner is that since the inquiry was not completed within three months as directed in the decision dated 3‑12‑1985, he is entitled to back benefits and non‑payment of the same, therefore, constitutes contempt of curt on the part of the respondents. As the condition for payment of back benefits was not completion of the inquiry within three months and as admittedly the inquiry was not completed within the said period, the only point to be seen is whether the petitioner or the respondents are responsible for the delay. According to the order of the Court dated 3‑12‑1985, the inquiry was to completed within three months of the date of the decision, but the inquiry could not be started before the petitioner could join duty. Needless to say that the inquiry can be held only against an employee who is in service and not otherwise he petitioner, no doubt, gave duty report on 4‑11‑198.5 but as admittedly the sport was not accompanied by a certified copy of Labour Court's decision, time did not start from the said date. The petitioner was asked to supply the certified copy which he supplied on 15‑12‑1985 vide Ex.R‑

8. The respondents were justified in insisting that the copy of the judgment be produced. So the time of free months for the completion of the inquiry started from 16‑12‑1985 which was to end on 14‑3‑1986, Vide Ex.R‑7 dated 11‑1‑1986 and matter was referred to the legal branch of the L.DA. and upto 18‑1‑1986 the report from the legal branch as awaited and since no report came, Mr. Inamul Haq was appointed inquiry Officer on the said date and he was asked to submit his report upto 20‑2‑1986. Interim report of the Inquiry Officer is Exh. R‑11 dated 2‑3‑1986 wherein the inquiry officer had said that for ten days the petitioner had remained on leave and lour days' further adjournment was granted since Muhammad Zaman, prosecution witness, was not available. The prosecution evidence was completed In 2‑3‑1986 and as stated by the inquiry officer, who appeared as RW‑3, the petitioner got one week's adjournment due to sickness on 2‑3‑1986. Final inquiry report was sent by the inquiry officer (RW‑3) on 16‑4‑1986. The employer did not agree with the inquiry officer and remanded the inquiry report on 31‑5‑1986. before sending the report the inquiry officer had asked for the entrustment of the inquiry to some other officer on the ground that six inquiries were already ending with him. The management insisted that Mr.Inamul Haq should complete the inquiry since he was the judicial officer. Final report was sent by the inquiry officer on 6‑7‑1986 Ex.R‑13/A maintaining his previous report. The Inquiry officer explained that the period from 12‑3‑1986 to 11‑4‑1986 was wasted a the record of 1978 was not traceable due to the shifting of the office. Further, explanation given it ExA‑2 was that further delay was due to the non‑availability of the stenographer. He thus sent report written in longhand consisting of 16 pages. Vide Ex.R-I dated 21‑7‑1986 the petitioner was called for personal hearing appear on 26‑7‑1986. Vide Ex.R‑17 dated 7‑8‑1986 the competent authority ordered that fresh charge‑sheet be given to the petitioner on the points mentioned in the order, whereby the inquiry had previously been remanded to Mr. Inamul Haq. Vide Ex. R‑14 the second inquiry officer was appointed on 8‑1‑1987 and he was asked to complete the inquiry by 8‑1‑1987. The second inquiry officer RW‑4 and his report is Ex.R‑

15. He held the enquiry ex parte on he plea that the petitioner was summoned but he did not appear. The case of the Petitioner is that he had received the inquiry notice from the second inquiry officer on 6-1-1987 after 12.30 p.m. and that he had gone to the inquiry officer but he told him that he had already sent the report. Period of three months for the completion of the inquiry was more than sufficient. It has been experienced that where the employer is vigilant inquiries are completed within a week or in some cases in a couple of days. So, if vigilance had been shown inquiry could have been completed within the period allowed by the Court. Anyhow, since sometime was taken by the petitioner and sometime was spent on account of non‑appearance of the witnesses and non‑availability of the record, the delay caused in that manner is condonable, but the employer did not act with due care and caution after the first inquiry report was submitted by the inquiry officer, namely Inamul Haq. If he was not inclined to agree with the inquiry officeer, he could have appointed another inquiry officer instead of remanding the report to the same inquiry officer, after keeping with him for one and half months. There is no explanation for detaining the first inquiry report for one and half months. On receipt of the second inquiry report again the employer did not feel satisfied and instead of p appointing the second inquiry officer he passed an order on 7‑8‑1986 that fresh charge‑sheet be given to the petitioner. If he was not a judicial officer, he could have taken legal advice before passing such an order. Since Standing Orders Ordinance, 1968 applies to L.D.A., the period for issuing the charge‑sheet had expired and therefore, the employer was not justified in passing such an order on 7‑8‑1986. The employer slept over the matter from 7‑8‑1986 to 3‑1‑1987 when he decided to appoint the second inquiry officer. The learned counsel for the e respondents has not been able to justify this delay. Since as a result of the second inquiry some punishment has been awarded to the petitioner, nothing can be said about the said inquiry as the matter is likely to come under consideration again.

4. Learned counsel for the respondents has by citing 1978 S C M R 137 argued that non‑payment of back benefits does not amount to contempt of Court. The ruling is not helpful, inasmuch as in that case no direction for payment of salary or fixation of security had been given. The order was that the petitioner in that case be deemed to be in service throughout. In compliance with that order the person had been reinstated. It was held that the order was duly complied with. In the present case there was an express direction that if inquiry was not completed within three months, the petitioner would be entitled to back benefits. The respondents knew that the inquiry had not been completed within three months, therefore, it cannot be said that non‑payment of back benefits does not amount to contempt of Court.

5. It has been further argued by the learned counsel for the respondents that since the learned lower Court did not decide the grievance petition within seven days as directed by section 25‑A(4) of the Industrial Relations Ordinance, 1969, the decision is ab initio void and its non‑compliance does not amount to contempt of Court. The line of argument of the learned counsel is that the direction for the decision of the cases within seven days is not merely directory but his mandatory, inasmuch as unlike section 38(3) it is not provided that if the decision is not given within seven days, it shall not be rendered invalid by reason of the delay in its delivery. The mandatory provision given in subsection (4) is that the Labour Courts shall give decision on the matters brought to it. The direction that the decision be given within seven days is merely directory as no words such as and not more than that have been used. Almost every Labour Court is overburdened, therefore, it is not physically possible for them to decide the cases within seven days of the date on which they are brought to them. However, since at the Bar prayer on behalf of the petitioner has been made that a direction be issued to the respondents for payment of back benefits and that for the present no action be taken. I decline to take action and direct the respondents to calculate and pay back benefits to the petitioner within one month of this order. If any legal advice is to be taken or other formalities are to be observed, the same may be I completed within the said period. This disposes of the contempt petition. AA./561/Lb.P ???????????????????????????????????????????????????????????????????????????????????? Order accordingly.