' This appeal arises from the decision, dated 19th April, 1980 passed by the learned Presiding Officer, Punjab Labour Court No, 4, Faisalabad, whereby the grievance petition of the appellant was dismissed on the ground that the Labour Court had no jurisdiction and that the grievance petition was not maintainable.
2. The allegation against the appellant was that he had produced a forged B. A. Degree certificate for getting service. Show-cause notice was given to the appellant on 21st March, 1977. The appellant instead of filing reply, made application on 24th March 1977, asking for the copies of certain documents. Copies of some documents, were delivered and come were refused, he filed reply to the charge-sheet on 28th March, 1977. No enquiry was made thereafter and he was called upon by letter, dated 29th March 1977, for personal hearing. The appellant on 30th March, 1977, according to the call, appeared but the Director was not present. Thereafter, the appellant made application for the transfer of the case to the Commissioner but the Commissioner returned the case. The appellant gave a grievance notice and, thereafter, brought the grievance petition but at the same time brought a departmental appeal also. The objection was raised that two remedies were not available, therefore, the appellant made an application for the withdrawal of the case with permission to bring fresh petition. The learned trial Judge allowed the withdrawal of the petition but did not record any other order with regard to the prayer for permission to .Bring fresh application. The prayer was neither rejected nor accepted. It was also contended that the Industrial Relations Ordinance, 1969 was not applicable to the Social Security Institution vide notification, dated 20th September, 1979. On these two points the learned trial Judge dismissed the petition. So far as this question is concerned that the Social Security Institution has been excluded from the application of the Industrial Relations Ordinance, clause (f) of section 1(3) of the Ordinance was inserted on 29th September, 1979, whereas the grievance petition was brought before that on 16th July, 1979. There is no provision in the Gazette, photostat copy of which is on the record, that retrospective effect was given to the notification. Rather the direction is that the notification would come into operation forthwith. Exclusion of a particular establishment from the application of a statute is not a question of procedure, therefore, unless expressly retrospective effect has been given, the law would be prospective. Before the notification was made a right existed to challenge the orders passed by such an establishment before the lower Court. Since that right had already been exercised by making an application, the petition was to be decided and was not hit by the notification. Moreover, by clause ( f), Social Security Institution expressly has not been excluded from the operation of the Industrial Relations Ordinance, 1969, but establishments maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons have been excluded. There is no evidence that the Social Security Institution has been established and is being maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons. This is a question of fact and could be proved only by evidence. Since no enquiry was held, no question of production of evidence on this point in the enquiry arises and so far as the grievance petition of the appellant made in the Labour Court is concerned, there is no evidence to that effect. This is the other ground for which the position was maintainable before the Labour Court.
3. So far as this point is concerned that the petition was withdrawn and no permission to bring fresh petition was given, it was not a bar, because the appellant had made an express request in his application given under Order XXIII, rule 1 that he be given permission to bring fresh petition. The Court missed to give permission and since this prayer was not expressly refused, the appellant should not be made to suffer for the wrong act of the Court. If otherwise the previous application could run irrespective of the fact that the departmental appeal had been made by the appellant.
No provision has been shown which may have provided that without exhausting departmental remedy of appeal, no action can be taken in any law Court. In the absence of any such prohibition, the grievance petition was maintainable even though the departmental appeal had been preferred. Due to the wrong objections taken by the respondents in the written statement, the appellant had withdrawn the petition. The appellant waited for a reasonable time but when no response came about his departmental appeal, he rightly brought the other grievance petition for the bringing of which he had already sought permission in his application for the withdrawal of the previous petition. The petition, therefore, was competent.
4. As admittedly without making any enquiry, the appellant was terminated and as the allegation was of serious misconduct, the order of termination is not sustainable. If an enquiry had been held, the appellant would have an opportunity to show that the charge against him of producing forged B. A. Degree was groundless. The appellant, therefore, obviously was condemned unheard. In these circumstances, the appeal is accepted, the impugned decision of the learned lower Court is set aside and accepting the grievance petition of the appellant and setting aside the order of termination, I direct the re-instatement of the appellant in service. Since the appellant's counsel was also at fault in withdrawing the previous grievance petition without considering the law on the point, in my opinion the appellant is entitled to back benefits. Since the question of B. A. Degree being genuine or forged is involved, the respondents shall be at liberty to make re-enquiry, if they so like.