This appeal arises from the decision dated 29th April, 1978, passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the appellant for his re- instatement was dismissed.
2. The' appellant was employed initially in the West Pakistan Agricultural Development Corporation as Depot Supervisor on 12th August, 1966. On dissolution of the above-mentioned Agricultural Development Corporation, his services were transferred to the respondent Corporation in 1973. He was given a charge-sheet Exh. P-1 on 15th February, 1975 on the allegation that he was party to the sales of fertilizers even though the sales have been stopped. He submitted reply to the charge- sheet Exh. P-2. Subsequently, notices Exhs. P-3 and P-4 were issued to him by the Enquiry Officer and District Manager, Sialkot, res--pectively. After enquiry was held, the appellant was dismissed.
3. Learned counsel for the appellant has argued that enquiry was geld by Mr. Khizer Aslam, District Manager and not by Nazir Hussain Siddiqui as contended by the respondent. The appellant brought griev--ance petition under section 25-A of the Industrial Relations Ordinance but in the pendency of the said petition the letter of dismissal on 22nd January, 1976 (Exh. P-3) was withdrawn and the appellant asked to join duty. The appellant, however, refused because his petition was pending. The Lower Court filed the grievance petition of the appellant on 5th July, 1976 for the reason that the order of dismissal had been withdrawn and directed the appellant to resume duty with effect from 7th July, 1976 allowing back benefits upto 21st May, 1976 but disallowed the back benefits for the period after 21st May, 1976 for the reason that in spite of the withdrawal of the order of dismissal, he did not resume duty. The appellant brought appeal and challenged the order of the Labour Court , to the extent it did not allow back benefits for the period from 22nd May, 1976 to 7th July, 1976. The respondent brought separate appeal challenging the order of back benefits. The appeal of the appellant was accepted and that of the respondent rejected,
4. After the withdrawal of the order of dismissal, the respondent issued show-cause notice Exh. P-10 dated 3rd February, 1976. He was again dismissed on the previous charge of dishonesty and on the strength of the enquiry already made vide Exh. P-15 dated 17th July, 1976. The grievance petition was made on 23rd August, 1976 from the dismissal of f which the present appeal arises Making reference to rule 8 of the depart--mental Efficiency and Discipline Rules, learned counsel has argued that it was necessary to give opportunity of hearing before passing the dismissal order. He also has said that service of show-cause notice was necessary. This is factually wrong that second show-cause notice was not given. Notice Exh. P-10 dated 3rd February, 1976 was the second show- cause notice, the first one being the charge-sheet. By means of this notice the appellant was asked to give the reply. Since the appellant was asked to give the reply he was given a chance of hearing by the employer before passing the dismissal order Exh. P-10 did not prohibit the appellant from appearing in person before the employer. If he had made request for personal hearing and the game had been refused, it could be said that opportunity of personal hearing was not given. It is not necessary for the employer to ask the employee concerned to appear before him in per-- son because the employee may not be willing to be heard in person. There is, therefore, no force in the arguments of the learned counsel for the appellant that the appellant was not afforded opportunity of personal hearing.
5. The other point raised by the learned counsel is that the same authority who charge-sheeted the appellant had made a preliminary en--quiry and thug the appellant was prejudiced. Admittedly, Mr. K. G. Ansari, Regional Manager was the employer of the appellant, therefore, he was competent to charge-sheet him. In order to fix responsibility, it was considered proper to make preliminary enquiry, therefore, the notice making preliminary enquiry was to the benefit of the appellant and not detrimental to him. I do not find any force in the argument of the` learned counsel that the same authority who made preliminary enquiry could not have charge-sheeted the appellant.
6. The other point raised by, the learned counsel for the appellant is that the enquiry was not made by Nazir Hussain, but by Khizer Hussain. No doubt, P. W. 2 and P. W. 3 stated before the lower Court that they appeared before Khizer Aslam, but in reality this is not so, Since they were dismissed from service, therefore, they made such a statement be--fore the lower Court. Learned counsel has pointed out that the officer who appeared in the lower Court and stated that he had made the enquiry is named in the statement as Niaz Hussain Qureshi, whereas, according to the case of the respondent, enquiry was made by Nazir Hussain. The name of the witness appears to have been incorrectly recorded in the lower Court because the enquiry proceedings bear the signatures of Nazir Hussain.
7. However, this argument of the learned counsel for the appellant is not without force that in the enquiry extraneous matters not included in the charge-sheet were brought on the record which must have prejudiced the mind of the dismissing authority. The enquiry officer also observed is his report that the appellant had y overstayed leave by remaining absent and that he was guilty of negligence of duty. Obviously these allegations were not included in the charge-sheet and thus were extraneous matters. Needless to say that the dismissal order has been passed on the inquiry report. The dismissing authority did not mention in the dismissal order that he had not taken notice of the observations of the enquiry officer to the effect that the appellant had remained absent and was guilty of, negligence of duty. If he had done so, it could be said that although -the Enquiry Officer had brought on the record extraneous matters, yet the dismissing authority did not act upon it. The possibility cannot there fore, be excluded that if the extraneous matters referred to above had not been brought on the record by the Enquiry Officer, the dismissing authority may have prescribed lesser penalty. Thus, the order of dismissal stands vitiated.
8. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the lower Court and the order of dismissal, direct the re-instatement of the appellant.
As the appeal has succeeded on technical point only the appellant is not entitled to back benefits.