' This appeal arises from the decision dated 4-4-1979 passed by the learned Presiding Officer, Punjab Labour Court No,2, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be re-instated in service with back benefits.
2. The misconduct, for which the respondent was dismissed, was of absence from 15-8-1977 to 30- 8-1977. According to the appellant, charge-sheet Exh.R-4 was sent to the respondent through postal certificate Exh.R-5. No reply was filed. Enquiry notice, copy of which is Exh.R-6, is alleged to have been sent vide postal certificate Exh.R-7. An enquiry was held which was followed by the dismissal letter Exh.R-8.
3. According to the case of the appellant, the respondent participated in the enquiry and signed the proceedings, but the case of the respondent is that neither any charge-sheet was issued to him nor any enquiry notice, nor he joined the enquiry proceedings. He admits the signatures on the enquiry proceedings, but has said that he was told that his signatures were being received for the payment of salary. The learned lower court has accepted the plea of the respondent that neither any charge-sheet, nor any enquiry notice, nor the dismissal order was served upon the respondent, nor he participated in the enquiry.
4. Learned counsel for the appellant has argued that the petition was hopelessly time-barred by seven months and some days and that since in the application for condonation of delay contradictory position was taken, the petition cannot be regarded as within time. Learned counsel is mistaken. There is no application for condonation of delay on the lower court file. The case of the respondent was that, as mentioned above, neither any charge-sheet, nor any enquiry notice, nor the dismissal order was served upon him and that he learnt about his dismissal from the written statement filed by the appellant in answer to his application for claiming wages made to the authority under the Payment of Wages Act. However, in the grievance petition the respondent took up the plea that while on his way to the factory he was attacked by some persons on account of old enmity, as a result of which he was seriously injured and remained admitted in the Mayo Hospital from 27-6-1977 to 7-11-1977. This period covers the period of his absence from duty as well as the delay in making the grievance petition. Learned counsel further says that the respondent had made an application to the management on 28-1-1978 for reinstatement, which is Exh.R-3, in which he explained that thieves broke into his house and injured him, whereupon he was admitted to the hospital, but in para.2 of his grievance petition he said that on 27-6-1977 while on way to the factory, he was attacked. .Copy of the F.I.R. And a discharge certificate are also on the record. In the F.I.R.It is mentioned that he was attacked outside his house and was injured. The discharge slip shows that actually he suffered injuries and remained in the hospital. It, therefore, appears that the assertion of the respondent that he was attacked by his enemies does not appear to be incorrect.
So far as the discrepancies in his application dated 28-1-1978 Exh.R-3 and what is mentioned in paragraph 2 of his grievance petition are concerned, no opportunity was given to the respondent to explain the same. He should have been confronted with his application Exh.R-3 as well as paragraph 2 of the grievance petition and the copy of the F.I.R. Made by him with the police and enquired as to whether the contents of the application Exh.R-3 or paragraph 2 of the grievance petition or the F.I.R. Were correct. Learned counsel says that confrontation is necessary in criminal cases. I do not agree with him. Whenever a witness is to be discredited, on account of discrepancies, it is necessary to bring the discrepancies to him by confrontation and he be given opportunity to explain the same. The explanation given by him then is to be considered to come to a conclusion whether the discrepancies are sufficient to discredit the witness or they have been satisfactorily explained. Since in the present case the respondent was not confronted and given opportunity to explain the discrepancies, he was rightly not discredited by the lower court. So far as the contents of the F.I.R. And paragraph 2 of the grievance petition are concerned, the discrepancies are not material. Only the difference is that in the grievance petition it is mentioned that while he was on his way to the factory, he was attacked, whereas in the F.I.R. It is mentioned that when he was present outside his house, he was attacked. While he was outside his house, he may be on his way to the factory, but he may have not considered it necessary to mention it in the F I R. There is no postal certificate with regard to the service of the dismissal order. It, therefore, does not stand proved that the dismissal order was in reality sent to him. The assertion of the respondent, therefore, appears to be correct that when written reply to his application given to the Authority under the Payment of Wages Act was filed, he learnt that he had been dismissed. The said written statement is dated 23-3-1978 and is exhibited as Exh.P-4. From this date the grievance notice and the grievance petition are within time and are not time-barred. The learned counsel says that the F.I.R. And the medical certificate were objected to by him at the time when they were admitted in evidence. He says that without the examination of their authors the documents were not admissible in evidence and that they were photostat copies. So far as the objection of non- production of the authors is concerned, the Evidence Act is not applicable to the labour cases and purposely the said Act was not made applicable, because the requirement of the Industrial Relations Ordinance, 1969 is that the cases should be decided within seven days. Within such a short time the cases cannot be decided if all legal formalities which are necessary according to the Evidence Act are followed. If the appellant was seriously attacking the documents produced by the respondent, he was at liberty to summon the police officer who recorded the F.I.R and the doctor who issued the discharge slip and a medical certificate to show that the documents were forged or in genuine. However, this argument is not without force that the photostat copies are not admissible. But the difficulty is that the record of the lower court does not show that objection was raised by the learned counsel at the time the documents were admitted in evidence. Only the words 'objected to' in brackets are written and it is not written what precisely the objection was. The learned counsel should have got recorded the objection to the effect that the photostat copies were not admissible. Now it is too late for the learned counsel to say at the time of arguments in the appeal that since the medical certificate and the F.I.R were the photostat copies, they were not admissible. If such an objection had been taken at the time the documents were admitted in evidence, the respondent would have an opportunity to produce the originals or the certified copies. Failure on the part of the appellant to examine the authors of these documents clearly shows that the objection was raised only to exclude the use of these documents in evidence, whereas otherwise the appellant was satisfied about the genuineness of these documents. The F.I.R. Shows that the respondent had got registered a case under section 307, P.P.C. Against the persons who are alleged to have attacked him. The F.I.R. And the medical certificate show that the respondent could not attend his duties since he was attacked and had been injured, as a result of which he had to be admitted in the hospital. About the non admissibility of the documents referred to above, the learned counsel has cited 1979 PLC 506, PLD' 1978 Lah . 31 and 1975 PLC 601, in Which it has been observed that the photostat copies are not admissible. I had already observed above that such an objection is well founded, but it should have been raised at the time the documents were admitted in evidence. Even otherwise these documents are not material for the point under discussion, because even if they are ignored, the grievance petition is within time from the date on which written statement Exh.P-3 was filed on behalf of the appellant before the Authority under the Payment of Wages Act, containing that the respondent had been dismissed.
The date of the written statement is 23-3-1978 and as observed above from that date the grievance notice and the grievance petition are within time. The grievance petition was presented on 14-5-1978 and the grievance notice was given prior to that.
5. The learned counsel for the appellant has said that section 65-B of the Industrial Relations Ordinance, 1969 is not applicable for the condonation of delay made in giving the grievance notice.
This point is not relevant, because I have observed above that the grievance notice and the grievance petition are within time. As a matter of fact, as mentioned above, actually there is no application for condonation of delay on the file.
6. The next point raised by the learned counsel is that the order of dismissal was passed under the Economic Reforms Order (President's Order 1 of 1972), therefore, the same could not be challenged.
The dismissal order is Exh.R-8 but there is no mention in it that it was passed under the Economic Reforms Order. Rather in paragraph 1 reference is made to Standing Order 15(3)(e) of the Standing Orders Ordinance, 1968 stating that the absence of the respondent amounted to misconduct. It is also mentioned in the dismissal order that the enquiry hold and he was found guilty. It is thus clear that the action way not taken under the Economic Reforms Order, but under Standing Orders Ordinance, following the procedure given in it. So, there is absolutely no scope to say that the dismissal order was passed under the Economic Reforms Order. Every order of dismissal cannot be said to have been passed under the Economic Reforms Order, unless actually and expressly it has been so passed. I, therefore, overrule the objection.
7. The last point raised by the learned counsel is that the respondent is not entitled to back benefits as he did not show that he was not gainfully employed anywhere else. Learned counsel for the appellant has not been able to point out any provision in the Industrial Relations Ordinance, in which it may have been provided that back benefits can be claimed by the successful workers only if he alleges and proves that during the period he remained out of service he was not gainfully employed anywhere else. There is a case-law no doubt on this point, but only parties to a particular case are bound by any such finding and not others. No doubt, the respondent did not say in his statement that he was not gainfully employed anywhere else, but it was the duty of the appellant also if he wanted to be saved from the payment of back benefits to enquire from the respondent or to suggest to him that remained out of service. This appears to be correct that he participated in the enquiry, because the enquiry proceedings bear his signatures and this is not believable that by deceitful means his signatures were obtained. Since the respondent had been injured which fact stands proved from his statement and the copy of the F.I.R. And the medical certificate, it cannot be said that he wilfully absented himself, therefore, the dismissal order is not maintainable, no doubt the respondent had participated in the enquiry, but since no reply to the charge-sheet had been filed by him, first of all his reply should have been taken and after considering it, an enquiry should have been started. The other thing is that it has not been proved that second show-cause notice was sent and further that it was accompanied by the copy of the enquiry report. R.W-1 has stated only this much that the charge-sheet and the enquiry notice and dismissal letter were sent. He has not said anything about the second show-cause notice, nor he stated that the copy of the enquiry report was sent to the respondent. Since on technical grounds the respondent has succeeded, therefore, he is not entitled to back benefits.
8. I, accordingly, partly accept the appeal and modify the decision of the learned lower court by disallowing back benefits to him.