' These 2 appeals by the Textile Corporation of Pakistan Ltd., the appellants herein, are directed against 2 separate decisions, passed by the learned VIth Labour Court on 6th November, 1980, setting aside the orders of termination of services in respect of the 2 respondents and directing the appellant to re-instate them in service. The reasons which prevailed with the learned Labour Court in passing the impugned orders were that no proper opportunity was given to the 2 respondents to defend themselves in the domestic enquiry which was allegedly held against them.
2. The facts which form the background of these appeals which have been heard together, shortly stated are that the 2 respondents were charge-sheeted on 9th July, 1979, for allegedly assaulting Abdul Karim Qureshi, the Administrative Officer of the appellant-Corporation, during working hours.
A domestic enquiry, based upon the above charge-sheets, was ordered and by the letter, dated 13th August, 1979, Mohammad Bashir Shamim, Production Manager, was appointed as Enquiry Officer and he was directed to hold the enquiry on 18th August, 1979 at 2-00 p.m., in the case of respondent. Mohammad Zarrian at 12 noon in the case of respondent Mohammad Buksh. Notice of this enquiry is said to have been given to the 2 respondents by the letter, dated 13th August, 1979, The said letter is said to have been sent to the respondents by registered post, A. D. According to the respondents the said notices were received by them on 18th August, 1979 at 3-00 p.m. After the time fixed for the holding of the enquiry. They claimed that they had brought this fact to the notice of the appellant-Corporation but their letters in this behalf were returned by the postal authorities as the mills of the appellant-Corporation were closed. It appears that on account of the absence of the respondents, enquiry officer Mohammad Bashir Shamim held ex parte enquiries against the 2 respondents and on the basis of his report, the services of the 2 respondents were terminated with effect from 19th August, 1979.
4. The sole question which arises for consideration in these 2 appeals is whether the respondents were given reasonable opportunity of defending themselves and had due notice of the bolding of the enquiries on 18th August, 1979. As already stated, the enquiry in respect of respondent Mohammad Zaman was to be held at 2-00 p. m., and in respect of respondent Mohammad Bux at 12 noon. However, there is no tangible evidence on the record to show that the respondents were served with notices of the holding of the enquiry in due time to enable them to attend the domestic enquiry. It was asserted by Syed Zahid Hussain, the General Manager of the appellant corporation, in his evidence before the learned Labour Court that notice of the holding of the enquiry was given to the 2 respondents through R/6, which was sent to them by registered post, A. D. In the first place, the said letter, which is dated 13th August, 1979 is addressed only to the enquiry officer, Mohanimad Bashir Shamim, and there is no endorsement on the office copy thereof that copies thereof were to be sent to the respondents. Further more, neither there is any indication on the letter in question to suggest that it was sent by registered post, A. D., to the 2 respondents nor have the registration receipts or the acknowledgement receipts been produced by the appellant-Corporation. It appears to me that neither the said letter, dated 13th August, 1979, was meant to be sent to either of the respondents nor in fact it was sent to them. What perhaps was sent to the respondents is another letter, dated 13th August, 1979 which appears as Exh. A-6 on the record of the learned Labour Court. However, neither the postmen who delivered this letter to the respondents examined nor were the AID slips in respect of the said letters or other evidence produced to establish when the said letter was received by the respondents. In fact no mention of this letter has been made by witness Syed Zahid Hussain the General Manager of the appellant-Corporation. The respondents no doubt admit the receipt of the letter A-6, date 13st August, 1979, but claim that it was received by them after the time fixed for holding the domestic enquiry. There is no evidence on record to contradict or rebut their claim. As such, their word, has to be accepted and it would appear that no fair or proper, opportunity was given to them to defend themselves. The ex parte orders, therefore, are considered as invalid as also the Enquiry Officer's report and the orders of termination of services of the 2 respondents, based on the invalid and ex pate enquiry. I would accordingly concur in the finding of the learned Labour Court in regard to the re-instatement in service of the two respondents. The question, however, that has to be further considered is whether the appellant- Corporation should not be given an opportunity to bold a fresh and proper enquiry against the 2 respondents. It is settled law that if the orders of termination of services are set aside on a technical ground or on an error committed in the holding of a domestic enquiry, ordinarily an option is to be given to the Management to hold a fresh and proper enquiry against the workman concerned. In the case of Mahrnood Shah v. Dawood Cotton Mills, being Constitutional Petition No, D/804/79, a Division Bench of the Karachi High Court, while upholding the order of this Tribunal, setting aside the orders of dismissal passed in respect of a workman, but at the same time giving an option to the management to hold a fresh enquiry against him and making the award of back benefits depending upon the result of such enquiry, observed as follows :- "Mr. Mohammad Shafiq Qureshi, learned counsel for the petitioner, contended that the learned Labour Tribunal was not justified in withholding the back benefits awarded to the petitioner by the Labour Court. The learned counsel, however, conceded that in view of the finding of the learned Labour Court, that the enquiry conducted in the matter was not fair, the evidence recorded during the enquiry proceedings could not be relied upon. This being so, it cannot, therefore be said that the petitioner was absolved of the charge altogether and thus, if the same set of evidence could not be used for the purpose of awarding punishment, it could equally not be utilised for awarding back benefits to the petitioner. In the circumstances no exception can be taken to the order of the learned Tribunal, more particularly because he also ordered that the question of granting back benefits should abide by the result of the fresh enquiry."
4. Respectively relying upon the above decision of the Karachi High Court, I would while upholding the decision of the learned Labour Court regarding the reinstatement in service, of the 2 respondents, give an option to the appellant-Corporation to hold a fresh enquiry in accordance with the law against the 2 respondents and will make the award of the back benefits depend upon the result of such fresh enquiry If no enquiry is held against the respondents within 2 months from the date of this order, it is to be construed that the appellant-Corporation has waived the option of holding the enquiry and in that case, the respondents would be entitled to all their back benefits.
The back benefits deposited by the appellant-Corporation at the time of admission of the appeals are ordered to be refunded.