1981 PLP 860 (PLC(CS))

Abdul Khaliq Khan for Appellant. Respondent in person. Date of hearing : 21st September, 1980. The respondent, who was employed as a Thing Piecer in the appellant Mills, was dismissed from service with effect from 17th January, 1979. He challenged his dismissal orders by way of a grievance petition before the learned VIth Labour Court. The appellant mill resisted the griev ance petition on the grounds that the respondent had been found guilty, on the basis of a domestic enquiry of remaining absent without leave for more than 10 days with effect from 3rd December, 1978, and conse quently, he had been dismissed from service with effect from 17th January, 1979. It was further claimed by the appellant mills that after his dismissal orders, the respondent himself had submitted his resigna tion on 30th January, 1979, stating that be was unable to continue in the service of the mills and, therefore, he should be paid his full dues. This was also the explanation submitted by the appellant mills to the Labour Directorate to whom the respondent workman had submitted a com plaint. The learned Labour Court allowed the respondent's grievance petition and directed the appellant mills to reinstate him with full back benefits, as in its view there was no tangible evidence that the respondent had been served with notice of the domestic enquiry or had been afford ed a proper opportunity of defence, that further it had not even been established that a domestic enquiry was held out the order of appoint ment of an Enquiry Officer was not produced and that it was difficult to believe that after the respondent was dismissed, he would be so ignorant as to submit his resignation.

2. I have heard Mr. A. Khaliq, the learned counsel for the appel lant‑Mills, and with his Assistance have examined the record in the case. In my opinion, the appeal must fail on a number of grounds. In the first place, although the reply statement was filed on behalf of the appel lant mills by one Saleem Butt, who has not cared to state his position in or in connection with the appellant‑Mills, but be was not examined in the Labour Court, and consequently, the written statement cannot be taken into consideration, in view of the decision of their Lordships of the Supreme Court in the case of Khairun Nisa v. Muhammad Ishaque (PLD 1972 SC 25). The, second major flaw in the proceedings is that the Enquiry Officer was not examined but the enquiry proceedings were produced through Saleem Butt, whose reply statement, as I have already pointed out, cannot be taken into consideration. Since neither the Enquiry Officer was examin ed nor there is any other evidence for proving the enquiry proceedings and the report of the Enquiry Officer, the same also cannot be taken into consideration, in view of the provisions of section 67, Evidence Act and the decision of their Lordships of the Supreme Court in the case of Mohammad Yousuf v. S. M. Ayub (PLD 1973 SC 160).

3. It has also not been established that the respondent was served with notice of the enquiry or the second show‑cause notice or was furnished with a copy of the Enquiry Officer's report. It is claimed by the appellant‑Mills that these notices were sent to the respondent at his home address in the N.W.F.P., because his local address at Hyderabad was not available. This plea is obviously unfounded because according to the respondent, at the time of his entry in service with the appellant‑Mills, he had given in his application his local address at Hyderabad as well as his address N.W.F.P. In the circumstances, the appellant‑Mills could have made an attempt to serve the respondent at Hyderabad, and if this attempt had been unsuccessful, then only they should have either sent the notices to the respondent at his native place or published the same in the newspapers, which admittedly they failed to do. The result was that the notices were returned unserved with the endorsement that the respondent was employed at Hyderabad. It has thus been established that the respondent neither received notices of the enquiry nor was given an opportunity of replying to the second show cause notice and that fur ther he was not supplied with the copy of the Enquiry Officer's report. It was pointed out by their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. v. Mohammad Yaqoob (PLD 1978 SC 207), that the inten tion of subsection (5) of section 25‑A, I.R.O., appears to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal is based. Consequently, if the employer fails to lead evidence before the learned Labour Court to prove jurisdiction of orders passed by him on merits, the dismissal cannot be maintained. In the instant case no proof in justification of the dismissal orders has been led.

4. For the foregoing reasons, I would concur in the orders passed by the learned Labour Court and dismiss the appeal. However, since the appeal is being dismissed on technical grounds, it would be open to the appellant mills to held a proper and fresh enquiry in accordance with the law. Appeal dismissed.