1. SALMAN ANSARI, J.--- This appeal has been filed by the appellants who being aggrieved and dissatisfied with the impugned judgment dated 29-4-2006, whereby the applicant/respondent's grievance application was allowed and the appellant/respondent was directed to reinstate the applicant in employment with all back-benefits.
2. ' Learned counsel for the appellants has urged that the matter be remanded back to the Labour Court as the findings are apparently on the face of it erroneous. Learned counsel has pointed out that the learned Presiding Officer has in his judgment concluded that no cross-examination of the respondent's witness was conducted, hence the respondent had failed to substantiate his plea through the witness but the R&P shows that there is order on the affidavit-in-evidence filed by the witness for the respondent Shahidul Haq Haqqi, by which 'none' was found present for the applicant and cross of the witness was marked as nil. This order was dated 10-4-2006, hence the judgment is based upon incorrect appreciation of the facts of the case and the respondent had suffered because the learned Labour Court failed to appreciate the correct facts as on record of the case. The learned counsel has relied upon Muhammad Sain v. Muhammad Din 1996 SCM R 1918, in support of his arguments.
3. ' Learned counsel for the respondent has argued that there is no requirement to remand the matter back to the Labour Court as this Court is empowered to hear and decide the matter and it there is any error in the judgment, such error can be corrected at the appellate stage and hence the matter be heard and decided by this Court. Learned counsel has relied upon Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207, Pakistan International Airlines Corporation, Karachi, v. Junior Labour Court No,IV Karachi PLD 1978 SC 239.
4. ' Having heard the arguments of the learned counsel for the appellants and the respondent. In this case in para. No,18 of the impugned judgment, the findings are given as under:- "During the evidence in Court, respondents have failed to controvert the main allegations of the applicant that he was sleeping. The respondents, in their reply statement, have also failed to explain the situation and charge of misconduct levelled against the applicant. They have just filed copies of charge-sheet, reply thereto and enquiry proceedings conducted against the applicant.
5. The respondent witness though filed his affidavitin evidence but failed to appear in Court on the date fixed for his cross-examination, hence respondent have failed to substantiate their plea through their witness. So from the above, it is evident that the dismissal of applicant consequent of enquiry proceedings was illegal. This point is therefore, answered in affirmative."
6. In the R&P the affidavit of the witness for the appellant/ respondent Shahidul Haq Haqqi, is shown to have been filed and there is an order on the same which reads as under: "None present for the applicant. No intimation to Court. Advocate for respondent present. Witness also present. Cross on witness marked nil."
7. Hence in my opinion this error is very apparent on the face of the record of the case and hence the matter is being remanded back to the Labour Court to examine afresh the evidence and afford an opportunity for cross-examination of the respondent's witness and if the witness fails to appear or other side fails to cross-examine without sufficient cause, then the order as deemed fit be passed and the matter be decided accordingly, within a period of one month from the receipt of this order.
8. ' Learned counsel for the appellants has undertaken that the respondent Abdul Rehman, shall be paid his monthly emoluments without any break till disposal by the Labour Court. The amount of back-benefits deposited with the Nazir of this Court are to be invested in some profitable saving scheMe.
9. ' As stated by both the learned counsel the Labour Court No,IV who decided this matter is vacant hence the matter be remanded back to the Labour Court No,2. Ordered accordingly.
10. ' With due respect to the case-law cited by the learned counsel for the respondent, at this stage appears finding would not apply to the facts of the present case, though reference is made to the citation relied upon by learned counsel for the appellant.
11. ' That the impugned order is set aside and the matter is remanded back as mention above.
12. ' This appeal stands disposed of accordingly.