' This is an appeal preferred against the decision dated 15th September, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi, whereby the respondent was directed to be reinstated in service with back benefits. The respondent has brought cross objections which are being disposed of alongwith the appeal.
2. A driver of the appellant Company namely, Ghulam Sarwar was injured in an accident. He was not admitted to the hospital. The union felt aggrieved against the appellant for not bothering to get the said injured employee admitted to the hospital. Muhammad Ahsan, President of the Union, alongwith some others and the respondent stopped work, invited a gathering of the members of the union, instigated other workers to stop work and caused disturbance, by raising slogans against the Management. Four persons in all including the respondent were issued charge-sheets.
Reply to charge-sheet was considered as unsatisfactory and enquiry was held which culminated in the dismissal of the respondent alone. One employee was found innocent by the enquiry officer and two were let off by the employer in this manner that one was not punished because he had been dismissed in some other matter and Mr. Muhammad Ahsan, President of the Union, was let off as he had apologised.
3. It has been argued that the learned lower Court has misread the enquiry report, inasmuch as it was wrongly held that the charge was proved. The factual position is that only one charge, according to the enquiry report, was not proved but other charges had been established against the respondent. There were five charges against the respondent and out of them four, according to the enquiry officer's finding, were established. As most of the charges were established, Chan Pir Shah's case is not applicable. The learned lower Court says that discriminating treatment was1 given to the persons undergoing disciplinary action, inasmuch as only the respondent was dismissed and rest were exonerated. Firstly, this is also wrong. One man was found not guilty by the enquiry officer, so how could he be punished by the employer. The other man had already been dismissed in some other case. Since he was no longer in service, no punishment could be awarded to him. Much emphasis has been laid on this that Muhammad Ahsan, President of the Union, was the principal offender or at least he took equal part in the creation of disturbance but he was let off.
The ground on which Mr. Muhammad Ahsan was left off is that he confessed his guilt and tendered apology, which was accepted. This is not the case of the respondent that he too apologised.
Secondly, the employer is not bound to punish all the employees. He can forgive and forget.
4. Arguing the cross-objections the learned counsel for the respondent has said that the enquiry officer failed to consider the pros and con of the case, inasmuch as he said in cross-examination that he did not know if the respondent was a Propaganda Secretary. The argument ex facie betrays its hollowness. Relevant material brought on the record is to be considered and not the position holding by the person under enquiry. This was not the case of the respondent that he had ever in the capacity of Propaganda Secretary annoyed the employer. So the fact of the respondent being an office-holder was not relevant.
5. The other point argued is that an excessive fee of Rs, 4,000 was paid to the lawyer for holding enquiry, therefore, he had to give finding in favour of the appellant. In view of the pains taken and the work done by the enquiry officer, the fee of Rs, 4,000 does not appear to be excessive. So the point raised is without any substance.
6. The last point raised is that the Secretary who charge-sheeted and passed the dismissal order was one of those who are alleged to have been abused, so he was not competent to take action.
No doubt, the Secretary was also absurd and slogans were raised against him, but this point was raised for the first time in the cross objections and not raised earlier in enquiry, grievance notice or in the grievance petition. Not only the Secretary but other higher officers were also abused. It is thus doubtful if some authority higher than the Secretary was spared and thus he could have taken action. .If such an objection had been taken at a stage when the appellant could have an opportunity to meet it, of course it could have taken notice of. The appellant may have shown that there was no other superior authority. So now it is too late to raise such an objection. In the circumstances discussed above, the learned lower Court was not justified in directing the reinstatement of the respondent.
7. As upshot of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, restore the order of dismissal and dismiss the grievance petition of the respondent. (1978) L S L R 2