Respondent No, 2 was appointed as helper by the petitioner vide appointment letter dated 20-5- 1987. The petitioner transferred the said respondent and 3 others to Khalil Jute Mills, Jauharabad, its sister concern. The other three employees reported at Khalil Jute Mills while respondent No, 2 did not report for duty. The management decided to initiate disciplinary proceedings against him.
Accordingly show-cause notice dated 15-8-1988 was issued and he was called upon to show cause why penalty should not be imposed for unauthorised absence from duty. The respondent No,2 submitted reply thereto but did not join the duty. The result was that he was dismissed from service vide order, dated 27-8-1988. The respondent No, 2 served grievance notice dated 27-10- 1988 on the petitioner and thereafter filed a grievance petition before Punjab Labour Court No, V. It was pleaded that respondent No, 2 was not allowed to enter Alipur Jute Mills by the petitioner from 1-8-1988 and ultimately the duty was refused to him saying that his services have been dispensed with. The petitioner contested this application and submitted reply thereto. The learned Labour Court recorded evidence and after hearing the arguments dismissed the application of the employee vide order dated 21-5-1989. The respondent No, 2 impugned this order through an appeal before respondent No,1, who accepted the appeal vide order dated 13-9-1989. The result was- that the employee was ordered to be reinstated with back benefits. The petitioner has now impugned this order through this Constitutional petition.
2. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No, 2 has appeared through counsel while respondent No,1 was proceeded ex parte.
3. The learned counsel for the petitioner argued that the respondent was transferred alongwith 3 others from Alipur Jute Mills to Khalil Jute Mills vide transfer orders dated 1-8-1988. The other co- workers of respondent No, 2 joined duty at Alipur Jute Mills in pursuance of this order while respondent decided to ignore the order. Thereafter he was served with a show-cause notice by Khalil Jute Mills but he still refused to honour the transfer order. It is added that the plea that he did not receive the transfer order is false on the face of it.
4. On the other hand, learned counsel for respondent No, 2 has argued that his client never received the transfer order and it was in fact a trick played by management to oust him from service. It is added that the management has failed to prove service of the transfer order, therefore, question of unauthorised absence did not arise.
5. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. It is made clear that at the very outset the respondent in spite of opportunity did not elect to submit written statement controverting the contentions of the petitioner. Now coming to the merits of the plea the petitioner examined Mulazim Hussain its Assistant Labour Officer as R.W. 1, Muhammad Nawaz its Labour Officer as R.W.2, Zaffar Masud its Time-keeper as R.W. 3 and Muhammad Shafi, Assistant Labour Officer Khalil Jute Mills as R.W.
4. The respondent No, 2 alone appeared in support of his claim in the grievance petition. It is clear from the statements of R.Ws. 1, 2 and 3 that transfer order brought to the notice but he refused to receive the same after going through its contents. The respondent No, 2 admitted in his cross-examination that he received a notice from Khalil Jute Mills to report for duty while it is clear from the cross- examination from R.W. 4 that he also received a show-cause notice dated 15-8-1988. Therefore, it is clear that the petitioner came to know of the transfer order at least after service of show-cause notice but he neither reported for duty nor challenged that transfer order. There is no merit in his plea that he was not aware of the transfer order. The learned counsel for the employee tried to explain that according to evidence of the employer the transfer order was presented for service on 31-7-1988 and according to record his client was on leave on 30-7-1988 and 31-7-1988 but this plea too was not substantiated. The question is whether he was on duty or on leave is not material. The important thing is that transfer order was tendered to him or not. There is nothing on record to disbelieve the R.Ws.
6. The respondent No, 2 has taken up the plea that he was not allowed to enter the premises from 1-8-1988. It is simply unbelieveable and is confirmed by the fact that he did not take any steps against illegal ban on his entry in the Mill premises falsified his whole contention. The learned Tribunal wrongly and illegally took up the controversy whether the appellant before it was legally and rightly transferred by the petitioner to Khalil Jute Mills or not. The transfer order has become a past and closed transaction as it was not challenged by respondent No,
2. Even after as per own contention the order came to his knowledge. The grievance petition against the petitioner was utterly misconceived and misdirected as for the petitioner was concerned. The learned Tribunal failed to appreciate that transfer order passed by the petitioner was not challenged by the appellant before it, therefore, that matter stood concluded. The respondent No, 2 has impugned verbal order dated 15-8-1982 allegedly informing him that his services have been dispensed with.
Neither there is any such order nor there could have been as the petitioner has transferred the said respondent on 31-7-1988 to its other concern. The respondent No, 2 having failed to prove any termination order dated 15-8-1988 passed by the petitioner was not entitled to any relief against the petitioner. The learned Tribunal did not keep in consideration the grievance of the appellant before it and the facts on record while accepting the appeal. There being no order of termination dated 15-8-1988 by petitioner, there was no question of that being set aside and respondent No, 2 be reinstated. The order is patently illegal.
7. The upshot of the above discussion is that this petition is allowed, impugned order dated 13-9- 1989 is set aside. The result is that the decision of the Punjab Labour Court No, 5 is restored and