1989 PLP 38 (PLC)

‑‑‑S.25‑A‑‑Reinstatement‑‑Back benefits‑‑Appellant worker not asserting that he remained jobless during period of dismissal‑‑Back benefits not allowed on reinstatement. Ch. Sadiq Muhammad Warraich for Appellant. Mr. Mohammad Hayat Khan for Respondent. Date of hearing: 21st December, 1986. This is an appeal challenging the decision dated 6‑3‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

2. The allegation made against the appellant was that he had misused for his personal benefit the MCO of another person and thus committed breach of Corporation Rules, Standing Orders/instructions and played fraud/dishonesty in connection with the Corporation's business. Vide order Ex. P‑8 the appellant was dismissed from service on 26‑6‑1978. He, therefore, brought a grievance petition under section 25‑A. The learned counsel for the respondent stated that the order of dismissal had been withdrawn by the management on the condition that action would be taken against the appellant on the basis of charge‑sheet Ex.R‑

2. Pursuant to this statement the petition was withdrawn. The appellant was again dismissed on 7‑3‑1979 vide order copy of which is Ex.P‑

15. The appellant challenged the said order in a petition under section 25‑A. The appellant was directed to be reinstated in service for the reason that on the same ground he could not be dismissed again after having been reinstated. On appeal the order of reinstatement was set aside and the case was remanded on the ground that charge‑sheet Ex.R‑2 was different from the one on the basis of which the appellant had been proceeded against previously. The grievance petition was dismissed by the learned lower Court on the ground that the Court had nc jurisdiction, inasmuch as the appellant had been punished under Martial Lave Regulation No.

52. The order was challenged in appeal which was accepted and the case was remanded on the ground that the appellant had not been dismissed under Martial Law Regulation No.

52. Now the grievance petition has been dismissed on merits by the learned lower Court.

3. It has been argued by the learned counsel for the appellant that the inquiry officer as per his report relied upon the evidence of three witnesses namely Agha Bashir Ahmad, Khaliq Z. Babar and Aleemud Din but the said statements were not recorded in the presence of the appellant. It has also been contended that those statements are not on the inquiry file. The last contention of the learned counsel is not correct. The statements appear on pages 173 to

179. However, the statements show that the witnesses were not examined in the presence of the appellant as his signatures do not appear nor there is any note of cross‑examination. Since the statements of the said witnesses were not recorded in the presence of the appellant, they could not be used against him. The other thing is that no statement of the appellant was recorded after examining the said three witnesses in order to afford him opportunity to explain the material, if any, brought on the file by the said witnesses. So far as Khaliq Z. Babar and Aleemud Din are concerned, they did not implicate the appellant in their statements and they did not say anything which may have linked up the appellant with the allegations made against him. So far as Agha Bashir Ahmad is concerned, he did not give any such evidence which may prove the offence against the appellant. He said that he investigated the matter and found that the appellant and two others were guilty. The evidence on which A9ha Bashir Ahmad found the appellant guilty was relevant and should have been produced. What Agha Bashir Ahmad said is his opinion which he formed as a result of the investigation made by him. Since the material from which he formed such an opinion is not on the record, it cannot be said that he came to a right conclusion. So even if the evidence of the three witnesses mentioned above is used, they do not bring the offence home to the appellant.

4. Learned counsel for the respondent has argued that even if the statements of the said three witnesses are ignored, the other evidence which was recorded previously can be used against the appellant. This argument is without force because vide Ex.P‑4 the management said that during the previous inquiry all relevant facts had not been inquired into and that the management was feeling that all those facts should be inquired into and the appellant should be afforded a fiar opportunity to defend himself. This is clear that the management itself was of the opinion that during the previous inquiry all the facts were not inquired into and the appellant had not been afford fair opportunity to defend himself. So the said evidence could not be used against the appellant.

5. So far as back benefits are concerned, the appellant did not assert in his statement that he had remained jobless. The learned counsel for the appellant has said that since this is a very old case, when the view of this Court that it is necessary for the worker to assert that he remained jobless, had not come in the field, the appellant did not make any such statement. The argument has no force. The learned lower Court decided the case on 6‑3‑1986 and, therefore, the appellant had an opportunity to make statement before the learned lower Court.

6. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be reinstated in I', service without back benefits. M.Y.H./278/Lb.P. Appeal accepted