' The two appeals captioned above were decided by this Tribunal on 24th November, 1981 dismissing both of them. The Pakistan Tourism Development Corporation is aggrieved against the direction of reinstatement given by the learned lower Court and Muhammad Saleem attacks the correctness of the order of learned lower Court to the extent it disallowed back benefits to him. The parties went in writ petition. The learned High Court has remanded the case for recession holding that Standing Order 15 (4) was amended after the alleged misconduct was committed and the amendment was not retrospective but this aspect of the legal question was not considered and although in the memorandum of appeal the employer had contended that the lower Court failed to properly appreciate and evaluate the evidence on the record and wrongly held that there was no defect in the enquiry proceedings but this Tribunal did not record any specific finding on the said point. It may be said in this respect with regret that both the learned counsel for the parties did not argue these points, either in advertently or intentionally in order to be retained to be argued before the Honourable High Court. The points not argued at bar are considered to be left over or not pressed. There could be no reason not to consider and answer this legal point that the amendment of Standing Order 15 (4) was made after the misconduct was committed. This is true that Labour Laws (Amendment) Ordinance (XXVI of 1975) (hereinafter called the said Ordinance) is not retrospective in its operation but it does not mean that in cases where misconduct has been committed before the enforcement of the said amending Ordinance, 1st show-cause notice can be served after indefinite period. In cases where before the enforcement of the said Ordinance, 1st show-cause notice (charge-sheet) has not been served, the period of limitation of one month would start from the date of the enforcement of the said Ordinance or from the date on which the misconduct came to the knowledge of the employer whichever is later. In the present case undisputedly the charge-sheet was delivered to the employee concerned on 5th January, 1976, whereas the amending Ordinance was enforced on 23rd December, 1975. An attempt had been made to serve the charge-sheet in the month of December, 1975 also but the employee refused to receive the same. Report of the District Manager in this respect is Exh. R. 28, dated 9th December, 1975 in reply to letter Exh. R. 27 sent to him for service of the charge-sheet upon the employee. Even if the contention of the employee is accepted that the charge-sheet was not offered to him and the report Exh. R. 28 is false since admittedly the charge-sheet was delivered to him on 5th January, 1976, it was as observed above within one month of the enforcement of the amending Ordinance (XXVI of 1975).
2. There is a serious defect in the enquiry. When Mr. Zubair P. W. Was being cross-examined by Muhammad Saleem (hereinafter to be called as the respondent) the Enquiry Officer disallowed certain questions whereupon the respondent walked out saying that he had no confidence in the Enquiry Officer. The Management replaced the Enquiry Officer on the request of the respondent, but the said Enquiry Officer did not complete the cross-examination of the respondent upon Mr. Zubair and proceeded further. Since the respondent had walked out, his signatures could not be received on the statement of Mr. Zubair, nor the statement could be read over to him. Without the completion of cross-examination the Enquiry Officer could not proceed further. If the respondent had made statement before the said Enquiry Officer that he did not want to further cross-examine Mr. Zubair, of course the enquiry could be proceeded onward, Learned counsel for the appellant says that since the respondent did not of his own accord ask the 2nd Enquiry Officer that he had yet to cross-examine the witnesses, there is no defect in the enquiry. I do not find any force in this argument. Since the ground on which the respondent walked out of the enquiry and asked for the replacement of the Enquiry Officer was that he had been prevented from further cross-examining, the witness it was the duty of the second Enquiry Officer to recall Mr. Zubair P. W. For completion of cross-examination or to record the statement to the effect that he did not want to put any more question to the said witness. The enquiry proceedings do not show that when the second Enquiry Officer resumed the enquiry Mr. Zubair was in attendance. When the witness was not in attendance, how the respondent could complete the cross-examination. Learned counsel has said that if the case is remanded to the Enquiry Officer to proceed further from the stage at which the previous enquiry officer had left Mr. Zubair P. W. Cannot be produced by the appellant as the said witness is no longer in service. However, it has been argued that the Enquiry Officer be asked to consider the case and record his verdict on the remaining material present on the enquiry file ignoring the whole statement and cross-examination of Mr. Zubair P. W. The respondent who is a lawyer also agrees to it. I, accordingly, accept the appeal and dismissing the appeal of the respondent and setting aside the decision of the learned lower Court hold that the charge-sheet is within time and remand the case to the second Enquiry Officer with the direction that he should after recording the statement of the respondent in defence, if the latter is willing, and giving opportunity to produce defence should again record his verdict on the basis of the material available on the enquiry record excluding the statement and cross-examination of Mr. Zubair P. W.