This is an appeal against the order recorded by the learned Presiding Officer, Punjab Labour Court No.5, Faisalabad, whereby the grievance petition of the appellant for his re-instatement in service was dismissed.
2. The allegation against the appellant was that he had in his application for service, mentioned his qualification as F. A. Second division and Matric third division whereas he had not passed the F. A.
Examination. He was asked after about 7 years to produce the F.A. Certificate but he did not give reply. The learned lower Court has held that the appellant committed fraud by writing in his application for service that he was F.A. Second division. The acts amounting to misconduct punishable with dismissal are enumerated in sub-para. E- of para 258 of First Wage Commission Award. Its opening words are "where an employee who commits..." It is clear from sub-para. 2 that acts mentioned in the para amount to misconduct if they are committed by an employee. The learned lower Court missed to consider that at the time, the appellant had mentioned in his application for service that he was F. A. Second division he had not yet entered in the service of the respondent but had only applied for service. Since as at that time he was not in the service of the respondent he could not be said to have committed misconduct by writing in his application that he was F. A. Second division. Admittedly, the minimum qualification for the post on which he was appointed was Matric, so the appellant was rightly taken in service. Of course if he had not been a Matriculate his service may have been terminated on this ground. The learned counsel for the respondent has argued that the second portion of the charge-sheet amounts to misconduct He says that omission on the part of the appellant to produce F.A. Certificate amounted to misconduct. Contravention of those instructions and orders amounts to misconduct that have been given in connection with official work. The appellant was asked to produce his F.A. Certificate not in connection with his official work, therefore, it did not amount to misconduct. Likewise insubordination to the competent authority in connection with the official work and duties amounts to misconduct and not-otherwise. No doubt, the appellant did not bother to give reply to the order to produce F. A . Certificate but it was not in connection with some official duty, therefore, it too did not constitute misconduct. If the appellant had been directed to produce Matriculate certificate to see whether he was Matriculate or not and he had failed to do so even then he would not have committed misconduct. But if he had not been a Matriculate which is a minimum qualification for being taken in service, he could have been terminated simply from service on this ground. Even Wage Commission Award was not applicable at the time the appellant applied for service vide his application dated 19-11-1974. He was appointed, vide order, dated 8-2-1975 and at that time the Wage Commission Award had not yet been published in the official Gazette. Before the First Wage Commission Award was enforced minimum qualification as given on page 220 of the First Wage Commission Award was Matric No division is mentioned. So the fact that the appellant was Matirculate third division was no bar and he, therefore, could not be terminated.
3. Even the order of dismissal copy of which is Exh. R.7 was not passed by the competent authority.
It was passed by Senior Vice---President whereas the competent authority was the Senior Executive Vice-President or the Head of Circle. Exh.R.19 no doubt is the letter of Circle Office but it was not issued on its own initiative but it was only sent to the Zonal Office on the basis of a letter received from Head Office Karachi. Since in the Head Office Karachi the order was not passed by the Senior Executive Vice-President but by the Senior Vice-President, obviously the order of dismissal was not passed by the competent authority. The second show-cause notice was also not legal. It was issued after the Senior Vice-President had decided to dismiss the appellant. The order of dismissal, for reasons given above therefore is not sustainable and the learned lower Court erred in not setting it aside. However the appellant is not entitled to back benefits as he did not state that he since the time of his dismissal remained jobless.
4. As a result the appeal is accepted and setting aside the impugned order of the learned lower Court and the order of dismissal the appellant is directed to be re-instated in service without back benefits.
A.E.