' This is an appeal directed against the decision dated 8-11-1988 recorded by learned Presiding Officer, Punjab Labour Court No, 1, Lahore whereby the grievance petition of the appellant for setting aside the punishment of reduction to the minimum of the old National Pay Scale No, 4 which was enforced before 1st July, 1983 for a period of five years without future effect was dismissed.
2. The appellant had brought previously a grievance petition which was withdrawn by him on the objection of the respondent that its presentation was not proper since it had not been presented by the appellant in person. On the same date on which the said petition was withdrawn, the present petition was presented by the appellant in person. The learned lower Court had observed that no evidence was produced in support of the application for condemnation of delay. The ground in the application for condo nation of delay is that since his personal presence was not recorded at the time of the presentation of the previous petition, therefore, he had to withdraw the same and bring a fresh petition,
3. Learned counsel for the respondents has argued that the appellant did not prove that his previous application was withdrawn with the permission of the Court to bring fresh application. In his statement the appellant deposed that "The present petition had been brought after the withdrawal of that and with the permission of the Court". This statement was not rebutted by any of two witnesses examined by the respondent, therefore, it stands proved that the fresh petition was brought with permission of the Court. This is not the case of the respondent that the previous petition was time-barred. Since the present petition was brought on the same day on which the previous petition was withdrawn as observed by the learned lower Court in the impugned judgment, the petition was not time-barred. In such cases section 14 of the Limitation Act applies and the period spent in the proceedings which were without jurisdiction is to be excluded. Since the presentation of the grievance petition was objected to be improper for the reason that it had not been presented by the appellant himself, the proceedings made on that petition were without jurisdiction, because the learned Labour Court had no jurisdiction to hear and decide that petition.
It cannot be said that the appellant did not present the previous petition himself with any mala fide intention. He had been punished with reduction to minimum of scale No, 4, therefore, he consciously challenged the order. If the punishment had been of censure only, it could be said that he was not particular to challenge it and therefore, intentionally did not care to present the previous petition himself. As soon as he came to know that the presentation was improper, he withdrew the same with permission to bring fresh petition. The learned lower Court; therefore, has wrongly held that the present petition is time-barred.
4. On merits also the decision of the learned lower Court is wrong. Enquiry was not properly held against the appellant. No opportunity was afforded to the appellant to Eros-examine Abdul Hameed prosecution witness No,
2. Rather it appears that the statement of that witness was not recorded in his presence, since the said statement does not bear his signatures. The other thing is that no opportunity was given to the appellant to produce defence. He did not state that he did not want to produce any defence. The Enquiry Officer did not say that he had afforded opportunity of defence to the appellant and that he had proposed not to examine any witness. P.W. 2 did not support the prosecution version. He said that in his presence the appellant had not said anything to Abdul Rafi Khan. Since according to the prosecution Abdul Hameed was also present at the time of incident the statement of Abdul Hameed shows that no such incident took place in which the appellant may have committed misconduct. So the allegations made against the appellant were not proved during the enquiry beyond any shadow of doubt. The learned lower Court missed to consider the points discussed above, therefore, fell in error in holding that proper opportunity was afforded to the appellant during the enquiry. His grievance petition therefore, was wrongly dismissed.
5. As a result the appeal is accepted and setting aside the impugned decision the punishment awarded to the appellant is set aside.