1988 PLP 582 (PLC)

‑‑Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Domestic enquiry‑ Charge is to be proved before awarding punishment‑‑No enquiry conducted and impugned dismissal order amounting to unheard condemnation‑‑Proof of guilt produced before Labour Court when impugned order challenged, held, would be immaterial‑‑Impugned order, was not sustainable, and set aside. Abdul Ghafoor Wattoo for Appellants. Malik Hamid Mahmood for Respondent. Date of hearing: 11th May, 1987. This is an appeal lodged against the decision dated 29‑1Q‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.2, Lahore, whereby the grievance petition of the appellants for their reinstatement in service has been dismissed.

2. The case of the appellants is that the respondent is a seasonal factory, that when the factory restarted during the season they reported for duty on 12‑9‑1985 but duty was refused to them. The case of the respondent is that the factory works only for t wo months, in a year and is not a seasonal factory, that the appellants went oft strike, therefore, they were dismissed from service.

3. The learned lower Court has held that the grievance notice was time‑barred. Since the case of the respondentis that the appellants went on strike and that they were dismissed, the period of limitation for challenging the order of dimsissal started from the date of service of the dismissal order but there is no evidence about it. R.Ws. 1 A and 3 speak of the service of certain notices and not of the dismissal order. R.W.3 stated that he had taken the notices personally to the appellants which they did not receive. He also stated that he had asked the appellants to resume duty but they did not do so. It is thus clear that the notices were to resume duty and to call off the strike and not of the dismissal order. R.W.2 clearly stated that the notices to resume duty were sent to the appellants. RW‑1 also stated about some notices. Notice Ex.R.3 may be said to be a charge‑sheet, inasmuch as within three days reply was invited but is not a dismissal order. Ex. R‑4 is 15 days' notice to resume duty. Exs.R‑5 and R‑6 are letters of dismissal but none of the three witnesses examined on behalf of the respondent deposed that they had served these orders upon the appellants. RW‑1 deposed that the appellants were terminated from service vide order. Ex.R‑6 but did not say whether this order was served. RW‑2 does not speak of the orders of dismissal Exs.R‑5 and R‑

6. Similarly, RW‑3 did not say anything in that respect. So, service of the dismissal order has not been proved. The appellants could give grievance notice after the date of knowledge of the dismissal orders. The learned lower Court has taken the matter of limitation very lightly. Para. 9 of the impugned judgment deals with this question. It states, "The petitioners were terminated from service on 10‑12‑1984. Their grievance notice Ex.P‑1 should have been given within three months but it was given after almost nine months. It is barred by time and renders the petition out of time as well." It is clear that the learned lower Court has not said as to on what date the orders of termination/ dismissal were actually served upon the appellants. The appellants could think of challenging the orders only after they were conveyed to them.

4. The allegation is of going on strike and remaining absent. Son far as absence is concerned, it does not exceed ten days, therefore, did not amount to misconduct. So far as the allegation of going on strike is concerned, no inquiry was held and thus the appellants were condemned unheard. The learned lower Court has made reference to the statement of RW‑2 Propaganda Secretary, but failed to consider that the evidence produced during the inquiry was to be seen and not the one produced in the Court. This is a broad principle of law that first of all the charge is proved and then punishment is awarded and not that the punishment be awarded first and when the employee challenges the order in the Court, the proof of the `guilt be produced. Since no inquiry was held, the appellants have been condemned unheard and thus the orders of termination from service are not sustainable.

5. So far as back benefits are concerned one of the appellants stated that the appellants remained jobless. No evidence was produced by the respondent to show that all the appellants or any of them got employment elsewhere during the period they were required to work with the respondent. So, the appellants are entitled to all those wages and benefits which they would have received from the respondent but for the order of removal from service.

6. As a result the appeal is accepted and setting aside the impugned decision of the learned lower Court it is declared that all the appellants were wrongly removed from service. They are entitled to what they would have been paid as wages and other benefits if their services had not been terminated. In future they will be recalled whenever the seasonal factory starts functioning. A.E./355/Lb.P Appeal accepted.