' The appeal captioned above has been preferred against the decision dated 27th September, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 1, Lahore whereby the grievance petition of the appellant for his reinstatement in service was dismissed.
2. The appellant was working as supervisor accounts at Lahore. The Chief Manager, Karachi had left service and as Mr. Piar Ali Hamani, Accountant/Officer Incharge was unable to cope with the additional duties, the appellant was transferred to Karachi. The appellant applied for leave. The Medical Superintendent, Services Hospital, recommended rest for one week and leave for the said period was allowed. Thereafter, no medical certificate from the Services Hospital was produced, yet leave for the said period was sanctioned, but further leave was disallowed and the appellant was charge-sheeted (Exh. P. 3) for disobedience of lawful and reasonable order of transfer. The appellant instead of replying to the charge-sheet asked for the copy of relieving order since in the charge-sheet it was mentioned that he had been, on the same day on which the transfer order was conveyed to him, relieved from Lahore Office. No copy of relieving order was given and instead Enquiry Officer was appointed, the date of enquiry was fixed and the appellant informed accordingly. The appellant joined the enquiry. Some evidence recorded in his presence and some documents were considered in his absence as he did not appear after 17th January, 1975. The enquiry ultimately culminated in his dismissal from services.
3. The pleas of the appellant argued before me are that Director, being above the Managing Director, could not be appointed as Enquiry Officer, that no opportunity to cross-examine the witnesses was given whose evidence was recorded by the Enquiry Officer in the absence of his counsel, that no second show-cause notice was given, that the order of transfer amounted to victimizing him for his trade union activities, that the transfer was against the terms and conditions of service, that by transfer he was being placed under the control of Mr. Piar Ali, who was junior to him anti that no relieving order was issued.
4. This is wrong that no second show-cause notice was issued. The second show-cause notice is Exh. P. 10 and its reply is Exh. P.
12. It is mentioned in Exh. P. 10 that copy of enquiry report was being sent with the notice. So far as the objection as to the opportunity of cross-examination is concerned, it has no force. The counsel for the appellant did not appear on 17th January, 1975 and the appellant requested that his counsel would cross-examine the witnesses on the next date. After recording the evidence of the prosecution witnesses, the case was adjourned to 25th January, 1975 on the request of the appellant for his defence but on the said date neither he nor his counsel appeared. If they had appeared, they would have cross-examined the witnesses and produced defence also, if any.
5. The point that copy of appointment order of the appellant was not produced in compliance with the Court's order dated 21st January, 1978 is not material. No doubt the-learned lower Court had directed the production of the appointment order, but on 23rd January, 1978 another order was passed by the Court calling many documents and the order of the appellant's appointment does not figure in it. It is thus clear that neither the learned lower Court nor the appellant was particular about the production of the order of appointment. Apart from this the document was not relevant.
In the grievance petition no such point was raised that the transfer was against the terms and conditions of service. Transfer in the exigencies of service can be ordered unless it is specifically prohibited by the terms and conditions of service.
6. So far as the question of victimization for trade union activities is concerned, this is an admitted fact that at the time of transfer the appellant was not holding any office in the C. B. A. He said that he was appearing in an industrial dispute but firstly nu copy of such proceedings was produced which could support him in this respect and secondly the mere fact that he was conducting any such dispute was not sufficient to ward off an order of transfer. No copy of demands was produced to show that the question of transfer of employees was covered by any demand or that the appellant was in any manner concerned with the said dispute. Moreover, transfer is not a punishment, so taking of permission in the pendency of an industrial dispute for transferring a worker is not necessary. The appellant pleaded that when he was an office holder of the C. B. A. He had objected to certain petrol bills and other expenses of some officer working at the Headquarter and for this reason he was transferred after he ceased to remain office-bearer, but the said plea is no sufficient to say that his transfer was ordered to take revenge. Of course if the transfer had not been warranted by rules or terms and conditions of service, it could have been successfully challenged. Moreover, it has not been shown that the authority who passed the transfer order, was the same in respect of whose bills the appellant had raised objection, nor it has been shown that at the instance of the said officer, the order of transfer was passed.
7. There is no legal defect in the appointment of Enquiry Officer who is higher in rank than the competent authority. The appointed person may object to it but the worker under enquiry cannot have abjection.
8. The other point raised on behalf of the appellant is that Mr. Piar Ali Hamani is junior to the appellant and by the transfer order he was placed under the control of his junior, so the appellant was justified in not obeying the order. No doubt, the appellant did state in his statement that Mr. Piar Ali Hamani was junior to him but this deposition is incorrect. The appellant was a supervisor in Accounts Department at Lahore, whereas Mr. Piar Ali was Accountant/Officer Incharge at Karachi.
The appellant stated that he was to be promoted as Accountant at Lahore, therefore, he was transferred. This shows that next step for the supervisor is the post of Accountant. Since Mr. Piar Ali was already working as Accountant. It is, therefore, manifest that on account of holding a higher post he could not be said to be junior to the appellant. No seniority list was caused to be produced by the appellant to show that he was in any capacity senior to Mr. Piar Ali. If at all before Mr. Piar Ali was promoted as an Accountant, he was junior to the appellant as supervisor he on account of superseding the appellant had become senior to him. The order of transfer, therefore, was not an unreasonable order and its non-compliance amounts to misconduct on the part of the appellant.
9. However, there is one point which goes in favour of the appellant. The plea that the appellant had been relieved from the post of supervisor has not been established. The appellant had demanded the copy of the relieving order also as he requested that he would answer the charge- sheet thereafter. No doubt the relieving order was produced before the learned lower Court but its service upon the appellant was neither proved during the enquiry nor before the learned lower Court. The said order is Exh. D-5. There is a report of some official or officer on this document to the effect that the original order was delivered to the appellant but the latter had left it in the office. The said report does not suggest that the appellant was asked to put his signatures in token of receiving the order and that he refused. The official or the officer who made the report was not examined in the enquiry to prove the delivery of the relieving order. None of the witnesses examined before the Enquiry Officer by the respondent deposed that they had delivered the relieving order to the appellant. Since no relieving order had been issued, the appellant was justified in demanding the copy of the said order before submitting reply to the charge-sheet. No copy of the said order was supplied and instead Enquiry Officer was appointed and the date of enquiry was fixed. Without taking reply, enquiry could not be held, so the whole structure raised on the enquiry fell to the ground.
10. After 14th November, 1974 the appellant had been applying for leave to the respondent but the leave applications upto 16th December, 1974 were allowed as is evident from the dismissal order Exh. P-21 and charge-sheet Exh. P-3. After 16th December, 1974 the appellant applied for further leave for one week i. e. Upto 23rd December, 1974 but it was disallowed and he was charge- sheeted on 24th December, 1974. Even in the charge-sheet Exh. P-3 it is not mentioned that further leave from 17th December, 1974 to 23rd was disallowed. Uptil 16th December, 1974 the illness of the appellant was admitted by allowing leave and the respondent is debarred from now saying that during the said period the appellant was healthy. He was not informed upto the date he was delivered the charge-sheet that further leave was disallowed. On account of being ill the appellant could not obey the transfer order upto the delivery of the charge-sheet. So he did not commit any misconduct. The proper thing was to disallow leave for the period after 16th December, 1974, to inform the appellant accordingly, and to issue to him the relieving order since before that no such order stands proved to have been issued. If this had been done and in spite of it the appellant had not proceeded to Karachi without any further just cause, of course, there could have been justification to charge-sheet him and to dismiss him after proving the misconduct in a proper enquiry. The dismissal order, therefore, is not maintainable.
11. As a result of what has been said above, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the dismissal order, the appellant is directed to be reinstated in service. The decision of the case was very much delayed in the learned lower Court and the respondent should not be made to suffer for that by allowing full back benefits. If the respondent had not committed the mistake pointed out above, and yet the appellant had not obeyed the transfer order, it would have amounted to misconduct. It appears that the appellant had no mind to go to Karachi. So in these circumstances I allow only 15% back benefits to the appellant.