' The above-captioned appeal arises from the decision, dated 20th March, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad whereby the respondent was directed to be reinstated in service. The respondent has brought cross-objections also that are being disposed of along with the appeal.
2. The allegation against the respondent in nutshell was that he was, in connivance with Sadaqat Hussain, Manager, running a parallel bank in the branch by receiving amounts from the account- holders for being credited to their accounts, but without entering the amounts in the bank's books, advanced the same to others privately.
3. The learned lower Court without giving findings on the allegations contained in the charge-sheet has directed the reinstatement of the respondent on the sole ground that the Enquiry Officer was incapable of acting as such, because he, before being appointed as such, was the member of the raiding party and had signed alongwith the other members of the checking party on the cash book. Such a question was put to Mr. Abdur Rashid Shahid (R. W. 1) Enquiry Officer but he flatly repelled back the suggestion. But when the cash book was brought he had to admit his signatures on it. Photostat copy of the relevant page of the cash book is Exh. P-14. It not only bears the signatures of the Enquiry Officer but of other officers as well. Some writing also is present but is not decipherable. However, writings in token of checking of cash can be read. It is recorded that the cash was found in order. The signatures of the Enquiry Officer appear on two maces. One signatures are in relation to the checking of the cash. The second signatures are without any writing. R. W. 1 did not admit the suggestion that the respondent was raided and that R. W. 1 signed Exh. P-14 in the capacity of raiding party but at the same time he did not explain why and in what capacity he and other officers signed P.
14. In the absence of any explanation of signing Exh. P. 14, the assertion of the respondent appears to be correct that he was raided, that the Enquiry Officer (R. W. I) was the member of the raiding party and that he and others signed Exh. P. 14 in that capacity. This point was not taken up by the respondent abruptly but was taken in para. 2 of the grievance petition and thus the appellant had to meet it and to disclose/explain in the written statement why surprise checking was made and that it had no connection with the charges levelled against the respondent but it was not done.
Rather the Enquiry Officer (R. W. 1) did not accept the suggestion. The opening para. Of the charge- sheet shows that the charges were based upon detailed scrutiny of books and physical verification of cash transactions of Sargodha New General Bus Stand branch. The evidence led by the appellant does not aim at any other checking and scrutiny. So the checking referred to in the charge-sheet can be a raid made on 3rd October, 1980. So the raid had a direct connection with the charges and as the Enquiry Officer was the member of the raiding party, he came to know of the facts and thus could not be appointed as Enquiry Officer. It has been argued that no objection during the enquiry was raised, so now such a plea cannot be taken. This argument is not tenable. It was not the duty of the respondent to get defects removed by which he could be ultimately benefited. Whatever was detected in the checking the Enquiry Officer was witness to it, thus could not act as Enquiry Officer. The respondent therefore was prejudiced in the enquiry on account of appointment of Mr. Rashid (R. W. 1) an Enquiry Officer. The learned lower Court has, thus rightly held that on the basis of such an enquiry, the respondent could not be convicted.
4. It has been argued that the Labour Court had no jurisdiction as the Award of the Wage Commission is not that award as defined in section 2 (ii) of the Industrial Relations Ordinance, 1968.
This is true that the award mentioned in section 25-A is the award as defined in section 2 (ii) but according to section 38-D, all provisions of the Industrial Relations Ordinance, 1969 apply to such an award, meaning thereby that the provisions of section 25-A apply to the award. Section 25A gives jurisdiction to the Labour Courts, so there is no force in the contention that Labour Courts have no jurisdiction. Likewise this objection raised in appeal too fallacious that no award has guaranteed any right to the respondent. Wage Commission Award has guaranteed right that the independent enquiry is to be made. Since the Enquiry Officer was, on account of being member of the checking party, prejudiced, he was not competent to be appointed as such.
5. It has also been pleaded in appeal that the respondent being a dismissed employee was not a workman. This objection has been raised for the first time. No objection was raised in the written statement. Now it is too late for the appellant to raise such an objection. It has been argued that the dismissal of the respondent has no connection with any industrial dispute, so he does not come within the definition of 'workman' given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969. The condition that the dismissal etc. Of an employee should have connection with an industrial dispute is for those employees, who otherwise are not covered by the definition. The respondent being cashier could not have 3 supervisory or managerial powers and thus does not come within the mischief of exceptions (a) and (b). No doubt, present tense has been used in the definition such as 'who it employed' but it does not mean that the person concerned should in service at the time of coming before the Labour Court. Not only in the Industrial Relations Ordinance, 1969 but in other enactments also, present tense is used while defining an employee, for example section 2 of the Civil Servants Act, 1973 (Central) and Provincial, 1974, section 2 (n) of Workmen's Compensation Act, Factories Act and section 2 (i) of the Standing Orders Ordinance, 1968. If section 2 (xxviii) is interpreted to mean that only that person is workman, who is in service, then dismissed and the persons removed from service in any manner cannot ask for reinstatement. But this is not the intention of the Legislature. If this had been the intention, then there was no need of making special enactments such as Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 etc., and the rule of master and servant would have been allowed to prevail. So I overrule the objections.
6. Since the Enquiry Officer was incapable and incompetent to hold Enquiry, the learned lower Court should have permitted fresh enquiry as the allegations are very serious. I, therefore, partly accept the appeal and D allow fresh enquiry, if the appellant feels interested to hold it. The question of back benefits would depend upon the result of fresh enquiry. If no enquiry is held, the respondent will not be entitled to back benefits as he has succeeded only on purely a technical defect. The cross-objections stand disposed of accordingly.