' This is an appeal directed against the decision dated 5-7-1987 recorded by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, directing the reinstatement of the respondent in service with back benefits.
2. The allegation made against the respondent, for which he was dismissed from service, was that he on 3-10-1984 was in possession of a copy of Jumma Magazine which was still to be published and circulated on 5-10-1984 and before that no employee could either acquire or keep the said magazine and that he had supplied the said copy to Mr. Sattar Masih, a part time sweeper, who was caught by the Security Staff while trying to smuggle it away and that he had been working as press reporter of Weekly Lalkar and had been supplying news/photos to Nawa-e-Waqt and Imroze.
3. So far as charge No, 1 is concerned, mere possession of a copy of Jumma Magazine did not amount to misconduct. If the copy of a printed magazine to be published on a future date was retained by him it does not mean that it was published before the date on which it was to be actually published and circulated. Being an employee if he had a chance to look into that copy, it did not constitute misconduct. So far as this allegation is concerned that he had supplied a copy of Jumma Magazine to one Sattar Masih, there is no evidence on the record. Sattar Masih was the witness to prove this allegation but he was not examined during the inquiry. No witness deposed that the respondent was seen delivering the copy of Jumma Magazine to Mr. Sattar Masih.
Muhammad Abdullah Adeeb (P.W.1) gave evidence with regard to the copy of Jumma Magazine but his evidence is only this much that he had picked up a copy of Jumma Magazine from the table of the respondent. He does not say that the respondent had in his presence delivered the said copy to Sattar Masih. So far as the second charge is concerned, the witnesses examined before the respondent entered upon his defence did not state anything material in that respect. No witness deposed before the Inquiry Officer that he had seen the respondent working as Press reporter of Weekly Lalkar or supplying news/photos to Nawa-e-Waqt and Imroze. According to P.W.
2, since the respondent used to attend to his duties late, therefore, he was presumed to be working for other newspapers. This is not sufficient. If at all the respondent was late, it does not mean that it was due to the fact that he was working for other newspapers. P.W. 2, also stated that the respondent took part in the meeting of an Anjuman which was attended by the Press Reporters and the respondent seeing him went into a corner to avoid his exposure to the Camera. The respondent is alleged to be sitting with Press-reporters in a photo but that photo has not been produced in the Court. Even if this part of the evidence of the witness is believed, it does not mean that every person who per chance attends a meeting in which the representatives of newspapers are present, he works as representative of any newspaper. After the respondent closed his defence the Inquiry Officer recorded the statements of two more witnesses, who according to the learned counsel for the appellants, were Court witnesses but according to the learned counsel for the respondent, they were prosecution witnesses. After recording the statements of the said two witnesses, no further opportunity of production of defence was given to the respondent. He was not inquired if he wanted to examine any other witness in defence to meet the evidence given by the said two witnesses. Learned counsel for the appellant has argued that since the inquiry report was not prepared on the same date on which the evidence of the two additional witness was concluded, therefore, there was ample opportunity for the respondent to tell the Inquiry Officer or to make an application that he wanted to examine some more witnesses in defence. I do not find any force in this argument. It was the duty of the Inquiry Officer to inquire from the respondent, after recording the evidence of two more witnesses, whether he wanted to produce any other defence.
Even in answer to the second show-cause notice the respondent had raised an objection that after he had closed his defence the Inquiry Officer had recorded the evidence of two more witnesses who had deposed against him but he had not been afforded opportunity to produce defence. In spite of it, before passing the order of dismissal, the respondent was not asked to produce defence at the stage of second show-cause notice, nor on account of this glaring blunder committed by the Inquiry Officer, the inquiry was remanded to him for giving further opportunity to the respondent to examine witnesses in defence to meet the evidence of the two additional witnesses examined by the Inquiry Officer after the respondent had closed his defence. A letter dated 31-10-1984 Exh. P.E. Is at page 83 of the file. It bears the signatures of Syed Sarwar Bokhari, Malik Muhammad Sharif Awan, Malik Masood Ahmad and Munir Ahmad Alvi. Muhammad Sharif and Muhammad Munir Ahmad were examined as Court witnesses or prosecution witnesses, they have admitted their signatures thereon. Mr. Munir deposed that he participated in many functions where the respondent described himself as a representative of Lalkar. Both of them also deposed that a board was hanging on the wheat market in which the respondent was mentioned as representative of Lalkar and that, thereafter, those words were removed. Anyhow, this evidence is relevant to a part of charge No, 2 which is to the effect that the respondent was working as Press reporter of Weekly Lalkar. The evidence of Muhammad Sharif and Munir Ahmed was controverted by the witnesses examined by the respondent before the learned lower Court. They arc the Press reporters of the Lalkar and they said that they and not the respondent was Press reporter. Since opportunity of defence was not afforded to the respondent after the statements of Muhammad Sharif and Munir Ahmed were recorded, therefore, the respondent could not examine the witnesses and examine them in the Court, therefore, in my opinion the evidence given by the said witnesses stands controverted by the witnesses examined by the respondent in the Court. Apart from it since the respondent was not afforded any opportunity to produce defence against the deposition made by the said witnesses, the Inquiry Officer wrongly used those statements against him.
4. The Enquiry Officer has observed in the report that the respondent may not have worked as Press Reporter but he may have worked to increase his income. It shows that the Enquiry Officer is not definite that the charge that the respondent had been working as Press Reporter of Lalkar was established. Learned counsel for the appellant has argued that the employer was justified in disagreeing with these remarks of the Enquiry Officer. The argument has no force. In cases where the employer disagrees with the finding of the Enquiry Officer, he may remand the enquiry to the same Enquiry Officer after setting aside his report or to appoint a new Enquiry Officer but he cannot dismiss the employee against the report of the Enquiry Officer. Learned counsel has not cited any ruling in support of his argument in this behalf.
5. The other point argued by the learned counsel for the appellant is that before subsection (5) was added to section 25-A of the Industrial Relations Ordinance, 1969 the provision was different and since in subsection (5) it is provided that the Court has to pass such orders as may be just and proper in the circumstances of the case, it is not necessary for the Court to set aside the order of reinstatement and that the Court can pass some other proper orders. The argument has no force.
Learned counsel in this respect has cited PLD 1959 SC 31. Firstly no observations can be found in the ruling and the other thing is that the case from which the authority arose was brought under the Industrial Disputes Act and not under the Industrial Relations Ordinance, 1969. The learned counsel has not shown that the provision made in the Industrial Disputes Act and in the Industrial Relations Ordinance, 1969 is identical. In PLD 1962 SC 60 it has been observed:- "It would, however, depend upon the circumstances of each case whether the relief of reinstatement or compensation for wrongful discharge from service would be the appropriate remedy. No hard and fast rule can be laid down in this connection."
' Learned counsel has failed to show that the provision contained in Industrial Disputes Act in this respect is identical to subsection (5) of section 25-A of the Industrial Relations Ordinance, 1969.
Apart from it in cases where the Court finds that the alleged misconduct has not been established no question arises to award some other punishment or to order the payment of compensation for wrongful removal from service instead of passing an order of reinstatement. If a party wishes to get compensation for wrongful termination then the jurisdiction is of the civil Courts and that is for those cases where the case is not within the jurisdiction of the Labour Court. The Labour Court has to pass an order of reinstatement if it finds that the order of dismissal or termination is wrong.
6. Even otherwise, the order of dismissal was not sustainable and has been rightly set aside by the learned lower Court. The reason is that out of two charges only on a part of charge No, 2 evidence was produced after the respondent had closed his defence and even if the said evidence is accepted, only a portion of charge No, 2 stands established. It has been held in 1978 LSLR 7 "The allegation leveled in charge No, 3 may perhaps amount to misconduct within the meaning of clause (a) of Standing Order 15(3) but in so far as two out of these charges on the basis of which action has been taken do not amount to misconduct, the action of dismissal on the assumption that all the three charges stood proved vitiated the entire order." Reliance has been placed upon PLD 1962 (W.P.) Lah.
172. The observations made in the said ruling were, "Wherein it has been held that if extraneous considerations have been taken into account while passing an order the entire order is liable to be quashed." In the present case, although the Enquiry Officer found that both the charges were established and the employer relying upon the said report dismissed the respondent, yet since charge No, 1 was not established and only a portion of charge No, 2, was proved, the order of dismissal was not sustainable. The wisdom behind this proposition is that the employer considering that all the three charges had been established, decided that the person like the respondent should not be retained in service and decided to impose extreme penalty of dismissal.
Possibility cannot be excluded that if the finding of the Inquiry Officer and the employer had been that only one out of the three charges had been established, he may have prescribed some other kind of punishment short of dismissal. So, even if the evidence of two witnesses examined after the respondent had closed his defence is accepted, the dismissal order was not sustainable and has been rightly struck down by the learned lower Court.
7. So far as back benefits are concerned, the learned counsel for the appellant has not made reference to the additional evidence produced in the appeal. Even no documentary evidence was produced to show that actually the respondent joined service, after his dismissal from service with Malik & Co. The witnesses examined by the appellant in this behalf gave only oral evidence and said that since the company had been closed no documents were available. The respondent must have been given receipts for the salary he received, therefore those receipts could be produced in evidence and this is not believable that the whole record has been destroyed. Learned counsel for the appellants has argued that the case in the learned Lower Court remained pending for a long time from 16-2-1985 to July, 1987 and the wages for the period of delay due to the adjournments taken by the respondent or for the reason that the learned Presiding Officer was on leave or was not available, could not be delivered, to the respondent. He also says that the provision of law is that the cases are to be decided in 7 days. The provision is merely directory and in view of the ever-increasing labour work and small number of Labour Courts the said provision has become impractical. Learned counsel in this respect has cited 1972 PLC 255, PLD 1959 SC 31 and 1976 PLC
67. 1972 PLC 255 no doubt, supports the plea of the learned counsel but this is a judgment of the Labour Court and not of the higher Courts, therefore, has no pursuasive value. So far as second mentioned ruling is concerned it does not support the argument of the learned counsel for the appellants as no such point was involved nor was decided. So far as the third mentioned ruling is concerned the point involved was whether the wages for the period spent in the proceedings brought by the employer in a wrong Court could be awarded or not. But no such point is involved in the present case. Obviously where a party comes to a wrong forum, he cannot claim back benefits for the said period. Where the employer passes a wrong or illegal order of dismissal or termination and the employee has shown that he remained jobless during the period, the employer cannot say that since the case was not decided by the Court earlier, the employee is not entitled to the wages for the period spent in deciding the case. However, every case depends upon its facts. If there appears to be some ground for not allowing full back benefits the Courts have discretion to allow lesser back benefits in the circumstances of each case. In the present case the disposal of the case was delayed for some time for the reason that on some dates the learned Presiding Officer was not available and for the reason that the Presiding Officer was on leave. The respondent cannot be penalized by rejection of back benefits on this ground.
8. As upshot of the observations made above, the appeal is dismissed.