' The two appeals captioned above arises from the decision, dated 14th September, 1982 recorded by the learned Presiding Officer, Punjab Labour Court No, 8, Bahawalpur, whereby Qadeer Ahmad ( hereinafter to be called as the respondent) was directed to be reinstated in service leaving the question of the entitlement of the respondent to back benefits to depend upon the decision of his appeal pending in the Supreme Court. Bahawalnagar Sugar Mills (hereinafter to be described as the appellant) has challenged the direction of reinstatement, whereas the respondent has in his appeal claimed back benefits. Both the appeals are being disposed of together through this single judgment.
2. The allegations against the respondent were that he on 9th January, 1976 at about 10-30 p. In.
Compelled and got the workers to observe illegal strike, prevented the officers to enter the factory to discharge their duties, and raised slogans and abuses. He was charge-sheeted but without holding any enquiry was dismissed. His petition for reinstatement was dismissed and appeal disallowed. However, writ petition of the respondent was accepted and setting aside the decision of the learned lower Court and this Tribunal, the case was remanded to the appellant for reconsideration after holding an enquiry. The appellant again dismissed the respondent after issuing notice of enquiry and holding enquiry. The learned lower Court has directed the reinstatement of the respondent, holding that no charge-sheet was served. The learned lower Court has touched the point if the allegations made against the respondent were established or not. For holding that the allegations were not brought to the notice of the respondent, the learned lower Court has relied mainly upon the observations made by the High Court in the decision of the writ petition. It has been argued that the High Court did not mean to say that the first show-cause notice had not been given and that Standing Order 15 (4) was only reproduced. The reason given by the learned counsel is that in the writ petition the respondent did not contend that no show- cause notice was served within one month of the alleged commission of the misconduct. I have carefully gone through the writ petition, copy of which is Exh. R-2. No doubt, it is not clearly contended that no charge-sheet was served, but at the same time, there is no admission about its service. It is contended that the appellant failed to apply the mandatory provisions of the statute. In the absence of an admission of the service of the charge-sheet, the above-mentioned contention clearly shows that all the mandatory provisions of law were not followed. Since the service of charge-sheet is one of the mandatory provisions, so the respondent meant to say that the charge- sheet too was not given. No doubt, the respondent said in the writ petition that after the publication of the charge-sheet in daily 'IMROZ no enquiry was held but he did not say that he had within one month of the alleged commission of the misconduct read the said newspaper. Needless to say that before holding enquiry, a notice of enquiry is served, but the respondent did not say in clear words that no notice of enquiry was given to him. Should it be taken that the respondent admitted the receipt of enquiry notice for not contending in the writ petition that no such notice came to him . Of course if an admission about the service of charge-sheet had been made, it could be said that the provision of law was complied with. Since the High Court said in clear words that it was necessary to give show-cause notice, and the opportunity of being heard, this Court cannot hold the otherwise. If according to the learned counsel this observation was against the facts, clarification should have been got made. It has also been argued that the service of the previous dismissal order, dated 17th February, 1976 is admitted and that since that order contains the allegations, so the respondent did come to know of the allegations within one month of the misconduct committed on 19th January, 1976. Merely the allegations are not brought to the notice but the employee concerned is required to be called upon to show-cause why he be not dismissed or otherwise punished. By the dismissal order, dated 17th February, 1976 the respondent was not called upon to show-cause. So, it cannot he treated as a valid first show-cause notice. The observations of the High Court that the appellant will not be debarred from taking fresh action according to law, does not mean that a show-cause notice after the expiry of one month may be given. Giving of first show-cause notice within one month is necessary for passing an order of dismissal or termination but not necessary for awarding any other punishment. So, it appears that the intention was that any other action allowed by law may be taken if so advised.
3. It has been argued that show-cause notice (copy Exh. R-5) was sent by registered post vide postal receipt Exh. R-6 and that, as stated by P W.-I, the said notice did not come back undelivered.
This is true but one thing is wanting. There is no evidence that the address of the respondent had been correctly written on the envelope containing the notice. P. W.-I did not say so. There is, therefore, no presumption that first show-cause notice was served.
4. Learned counsel for the respondent has Argued that the General Manager was competent to dismiss. Therefore, the dismissal order passed by the Chief Executive was without jurisdiction. No doubt, the General Manager was the proper authority to pass the dismissal order but he was rendered incapacitated by the act of the respondent. The respondent got notice of contempt issued to him by the High Court, therefore, he in fairness to the respondent declined to further do any act in the matter and forwarded the case to the Chief Executive, who, in reality was the appellate authority. So, the dismissal order was passed by the competent authority.
5. The other point raised by the learned counsel for the respondent is that the respondent had brought a complaint against the General Manager under section 53/13 of the Industrial Relations Ordinance, 1969, therefore, he ceased to remain competent to order enquiry and appoint Enquiry Officer. No doubt, the respondent mentioned in the writ petition about the complaint under section 53/ I 5 but no copy of the complaint was placed on the file, so this is not proved against whom it was brought. Again it is not alleged whether the General Manager was sued and had appeared in the case. This is not known what was the fate of that complaint. So, I overrule the objection.
6. As a result, I do not find any force in the appeal and dismiss the same. So far as cross-appeal of the respondent is concerned, the observations of the Labour court are that the question of back benefits will depend upon the decision of the appeal of the respondent pending in the Supreme Court. Subject to the decision of the appeal by the Supreme Court, otherwise the respondent is not entitled to back benefits as he has succeeded on a technical defect of failure to prove the service of charge-sheet. His appeal is disposed of accordingly.