' This appeal is directed against the judgment and order of the Presiding Officer of the Labour Court, Peshawar (Camp at Mangora) dated 29-2-2000 vide which the grievance petition filed by one Aftab Ahmed, an employee of the Forest Development Corporation, N.-W.F.P., against forfeiture of his Golden Hand Shake amount of Rs,66,357, was dismissed.
2. Facts leading to the filing of the instant appeal are that one Aftab Ahmad joined Forest Development Corporation (hereinafter referred to as FDC) as Assistant Forest Munshi on 14-1-1990 vide Exh. P.W.3/1. After satisfactorily serving 6/7 years in the said capacity, in November, 1996, he applied for six months leave without pay and on verbal assurance from his immediate boss regarding approval of his leave, he proceeded on leave and then went abroad. In the year 1997, certain complaints were received by the high-ups of FDC from the royalty holders of FDC Lot No,172/M regarding illicit cutting of trees in Lilowani Compartment Nos.12, 13, 14 and 15, and on which, the Manager Forest Operations, N.-W.F.P. FDC, Swat, ordered enquiry into the allegations vide order dated 2-7-1997 and the Inquiry Committee consisting of two members/Officers of the FDC started enquiry into the facts. In the meantime, the CBA Union of the FDC accepted the Golden Hand Shake offer of the Government and agreement was arrived at between the Government and the CBA of FDC on 20th December, 1997 and in this agreement it was also decided that the amount of Golden Hand Shake would not be paid to those employees against whom embezzlement cases were pending till decision of their cases. The enquiry initiated on the complaints of royalty holders of Lot No,172/M was completed on 3-1-1998 wherein the said Aftab Ahmad, Assistant Forest Munshi, being Incharge of the said Lot No,172/M during the said period, was held responsible for cutting trees and also for tampering in the record. In the said report it was recommended that the amount of Golden Hand Shake may not be paid to him and be forfeited in favour of the FDC. The Manager Forest Operations/respondent No,3 in the light of enquiry report dated 3-1-1998, addressed a letter dated 5-1-1998 (vide Exh. P.W.1/9 to the Managing Director, FDC, N.-W.F.P./respondent No,2 for necessary action and the Managing Director/respondent No,2 consented with the enquiry report and ordered forfeiture of amount of Golden Hand Shake of Aftab Ahmed, vide letter. Order dated 10th February, 1998.
3. Aftab Ahmad, being aggrieved of the order dated 10-2-1988 regarding forfeiture of his Golden Hand Shake amount of Rs,66,357, served a grievance notice upon the high-ups the FDC and thereafter he filed a grievance petition under section 25-A of the Industrial Relations Ordinance before the Labour Court. The petitioner in support of his petition appeared as P.W.-1 as his own witnesses besides producing three other witnesses while the FDC produced a sole witness Muhammad Afzal Deputy Forest Manager_Alpuri as R.W.1. The learned Presiding Officer of the Labour Court after going though the material placed by the parties in support of their claims and hearing the arguments of their learned counsel, came to conclusion that the FDC has rightly forfeited the petitioner's amount of Golden Hand Shake in view of fraud committed by him as per enquiry dated 3-1-1998, vide order of the learned Labour Court dated 29-2-2000, hence the instant appeal by Aftab Ahmad.
4. The learned counsel for the appellant has contended that the appellant was permanent worker of the FDC, having served for 6/7 years, and till winding up of the FDC, he was performing his duties satisfactorily; that the appellant was not associated with the proceedings of the Enquiry Committee nor he was given any show-cause notice showing hig guilt in the alleged cutting of the trees etc. And as such the proceedings of the Enquiry Committee qua the fixation of responsibility upon the appellant regarding cutting of illicit trees, etc., are not binding upon him and that the amount of Golden Hand Shake was illegally withheld by the respondents and that the learned Labour Court has confined its findings of the extent of absence of the appellant though it was not the matter in dispute and as such decided the petition on wrong premises.
5. While on the other hand, the learned counsel appearing for the FDC, has submitted that on the basis of proper enquiry conducted by the FDC, the appellant was found guilty and in terms of Clause-8 of the Golden Hand Shake Scheme, the appellant's amount of Golden Hand Shake was forfeited in favour of the FDC; that the grievance petition before the Labour Court was not maintainable on two fold grounds i.e, firstly, no grievance notice w as served upon the respondents and secondly, the same was lacking any of the circumstances provided under Order 12(3) of the Standing Order Ordinance, 1968, requiring him to invoke the provisions of section 25-A of the I.R.O.
6. The perusal of enquiry report Exh. R.W.1/9 clearly shows that appellant was not associated with the enquiry proceedings as it contains certain observations to the effect:-- "The statement of Lot I/C Mr. Aftab Ahmad could not be recorded as he is gone abroad. Thus the genuine reasons for changes in the record may be well-known to him."
Admittedly, there is nothing on the record to show that the appellant was abroad and this fact has also been admitted by the sole witness of the respondents in his cross-examination and as such before taking any action against the appellant, the mode laid down in Order 15(4) of the Standing Order Ordinance should have been followed which implies that as and when any misconduct of any worker/workman comes to the notice of the employer, the workman shall be informed, within a period of one month in writing of the alleged misconduct and shall be given an opportunity to explain the circumstances alleged against him. But conversely, the Authorities at the helm of affairs of the FDC did not bother to fulfil such legal formalities in that after receipt of facts findings enquiry indicating fault of the appellant, a proper enquiry against the appellant should have been conducted and the appellant should have been given show-cause notice/charge-sheet to explain the alleged accusations levelled against him and if the appellant was abroad and his service through ordinary mode of service was not possible, then the appellant should have been informed about the initiation of enquiry through publication of notice in the Newspaper and as such the maxim of golden principle of natural justice "audi alteram partein" has flagrantly been violated and this legal lacuna on the part of FDC created a vacuum which out rightly makes the impugned order on their part a sheer nullity in the eye of law.
7. As regards the non-service of grievance notice upon the respondents, suffice to say that the appellant while appearing as P.W.1 has produced the copies of grievance notice dispatched to the respondents through registered post which have been exhibited as Exh. P.W.1/1 to Exh. 1/4 and the postal Receipts bearing Nos.78,79 80 are exhibited as Exh. P.W.1/5. So in view of the dispatch of the grievance notices through registered post, for all practical purposes , the same are deemed to have been served upon the respondents.
8. So far as the third contention of the learned counsel for therespondent that there was no circumstance in terms of Standing Order 12(3) of the Standing Order Ordinance, 1968, requiring the appellant to move the Labour Court, suffice to say that the appellant along with other employees of the FDC was terminated from service on the basis of agreement arrived at between the CBA of the FDC and the Government and as per the Scheme the appellant was given an amount of Rs,66,357 as Golden Hand Shake but later on, as a punishment, the same amount through an order dated 10th Feb., 1998, impugned herein, was withheld/forfeited in favour of the FDC on the ground that the appellant was found responsible for illicit cutting of the trees as well as changes in the record and this unilateral action on the part of FDC is tantamount to dismissal of the appellant attracting the provisions of the aforesaid Standing Order. So the appellant has rightly invoked the jurisdiction of the Labour under section 25-A of the I.R.O.
9. In view of the above discussion, the order of the Labour Court is set aside and while accepting this appeal, the appellant is allowed Golden Hand Shake withheld/forfeited by the respondent i.e, amount of Rs,66,357, with no order as to costs.