1992 PLP 336 (PLC)

Abdul Ghani Khan for Respondent. Date of hearing: 10th March, 1991. This is an appeal against the order, dated 7-11-1988, passed by the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad; whereby the grievance petition of the appellant was dismissed.

2. I have heard Mr. Ahsanul Haq, learned Advocate for the appellant and Mr. Abdul Ghani Khan, learned Advocate for the respondents and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the appellant was an employee of the respondents. He was charge-sheeted on 20-10-1991 for having remained absent from duty without permission since 26-8-1987. In the domestic enquiry, he was found guilty and was therefore, dismissed from service, vide letter, dated 16-12-1987. After serving grievance notice upon the respondents, he filed his grievance application before the learned Labour Court which was resisted by the respondents on the ground that the appellant was not a workman and further that he was found guilty in an impartial enquiry. .

4. Mr. Abdul Ghani, Manager of the respondents and the Enquiry officer had admitted in his cross-examination that entire proceedings against the appellant was made under the provisions of the Standing Orders Ordinance. In view of this admission, the objection of the respondents that the appellant was not a workman has no value. I find that this issue was not pressed before the learned Labour Court, therefore, the learned Labour Cowl has not given its findings on this issue. As such, I need not discuss further on this issue.

5. The main objection of the appellant is that the enquiry was not fair and impartial. Admittedly, Mr. Abdul Ghani was appointed as Enquiry Officer. He was admittedly the Manager of the factory and as such would fall within the 11 definition of an `employer'. Furthermore, he has also signed the written statement and has defended this grievance application on behalf of the respondents. He, therefore, cannot be considered as an independent person and the enquiry held by him cannot be considered as an independent inquiry as envisaged under Standing Order 15(4) of the West Pakistan Industrial and'', Commercial Employment (Standing Orders) Ordinance, 1968 (herein after called as the Standing Orders). I also find that he has come to the findings that the appellant was absent from 26-8-1987 to 20-10-1987 without applying his mind properly to the record and evidence. In the cross-examination in the Labour Court he has admitted that the factory was closed from 29-8-1987 to;16-9-1987 due to curfew and on 6th October, 1987, the factory was closed; because of non-availability of glass. Then, on 6-10-1987 factory was closed because of non-availability of glass and again from 8-10-1987 to 15-10-1987, the factory was closed for want of electricity, therefore, no absent mark was put against the name of the appellant on those dates. However, still in the enquiry' report the Enquiry Officer has shown the appellant as absent on these dates also. The order of termination of services of the appellant based on such an enquiry report on basis of enquiry held by such an Enquiry Officer, is not sustainable.

6. I, therefore, allow the appeal, set aside the impugned order of the learned Labour Court and the order of dismissal of the appellant and order the reinstatement of the appellant in service. However, it will be open to the respondents to hold fresh enquiry on the basis of charge-sheet, dated 20-10-1987 by an independent Enquiry Officer in accordance with law and rules. The question of payment of back benefits would be depended upon the result of the fresh enquiry. The enquiry should be completed within 4 months. If the enquiry is not completed within 4 months and the time of completion of enquiry is not extended by this Tribunal on showing good ground/cause by the respondents, the appellant will be paid full back benefits by the respondents within one month from the expiry of the period of 4 months. The order of reinstatement is to be implemented within one month of this decision. M.Y.H./1887/Lb.S Appeal allowed.