' This is an appeal directed against the decision dated 11-4-1990 recorded by the learned Presiding Officer, Punjab Labour Court No, 8, Bahawalpur, whereby the grievance petition of the appellant for his reinstatement in service has been dismissed.
2. The facts are that the appellant, who was a helper, was issued a charge sheet on the allegations that he did not work, came late, remained absent and instigated the other workers to go on strike.
3. An objection was raised by the learned counsel for the respondent that the appeal was time- barred and there was no good ground for condonation of delay. On the point the appellant came in the witness-box and deposed that after he had applied for the copy on 5-5-1990 he had been going to the learned lower Court for the collection of the copy but Ghulam Hussain, Ahlmad, who had to deliver the copy, was not present on account of his marriage and the copy was delivered to him on 20-6-1990. In answer to a Court question the appellant stated that he was not given any date for the collection of copy. In the seal affixed on the copy the date of preparation of the copy is given as 9-5-1990 and the date of delivery of the copy is 20-6-1990. Usually the Labour Courts do not fix any date for the collection of copies, therefore, the appellant rightly stated that no date for collection of copy was given. On behalf of the respondent Mr. Shahid Akhtar, Stenographer, has been examined, but he has not been able to rebut this part of the statement of the appellant wherein he said that no date for the collection of copy was given to him. So even if it be said that the appellant did not go to the learned lower Court for the collection of copy before 20-6-1990, he was not at fault since he was not called upon to appear on 9-5-1990 for the collection of copy.
Excluding the days spent from the date of the application for copy was given, to the date, on which the copy was actually delivered, the appeal is not time-barred. The application for copy was given on 5-5-1990 and the copy was delivered to the appellant on 20-6-1990. The date of the impugned decision is I 11-4-1990 and the appeal was lodged on 23-6-1990. The appellant brought application for condonation of delay, but since there was no delay, the application for condonation of delay appears to have been made as a precautionary measure. The appeal, therefore, is treated as within time.
4. The legal objections raised by the learned counsel for the respondent before the learned lower Court were rejected. The grievance petition has been dismissed by the learned lower Court on the ground that the order of termination was impugned on the ground that no reasons were assigned, although certain assertions were made challenging the validity of the enquiry. It has been observed by the learned lower Court that explicit reasons are given in the order of termination. No finding has been recorded by the learned lower Court with regard to the assertions of the appellant about the validity of the enquiry. Learned counsel for the respondent has argued that since in the grievance petition legality or otherwise of the inquiry was not challenged, therefore the learned lower Court rightly did not touch that matter. The provision of section 25-A(4) of the Industrial Relations Ordinance, 1969 is a double check upon the proceedings made by the employer to dispense with the services of his employee. Subsection (5) of section 25-A reads as under:-- "In adjudicating and determining a grievance under subsection (4) a Labour Court shall go into all the facts of the case and pass such order as may be just and proper in the circumstances of the case."
' It was thus the duty of the learned lower Court to go into all the facts of the case and examine whether the enquiry had been properly held giving the appellant opportunity of defending himself.
A perusal of the enquiry proceedings shows that the appellant did not participate in the enquiry.
There is no order on the enquiry file that the appellant had refused to participate. The appellant had come in the witness box before the learned lower Court and deposed that he was asked to sit outside and wait and thereafter the order of dismissal was announced to him. Learned counsel for the respondent has argued that since the appellant stated in his statement that the enquiry was held against him, it is clear that actually the enquiry was held. Merely holding of enquiry is not the requirement of law but the person against whom an enquiry is being held is to be allowed to participate in the enquiry and given an opportunity to cross-examine the witnesses and to produce his defence. Learned counsel for the respondent says that the statement of the appellant that he was asked to sit outside and then order of dismissal was announced to him, is false. A statement cannot be declared as false unless it has been rebutted by some cogent evidence. The solitary witness examined on behalf of the respondent deposed in cross-examination that he was not present at the time of enquiry. Therefore, whatever he stated in examination-in-chief was wrong and did not rebut the statement of the appellant. The enquiry proceedings and the enquiry report were got proved from RW-1 stenographer. Since R.W.-1 was not the person who had held the enquiry, he could not prove the enquiry. No reason was given by RW-1 why the Enquiry Officer was not examined. R.W.1 stated that the statements of the witnesses were recorded by him (he means to say Enquiry Officer) but when in cross-examination he admitted that he was not present when the enquiry was held, it is apparent that he did not personally know that the statements of the witnesses were recorded by the Enquiry Officer. The other defect is that the enquiry proceedings do not bear the signatures of the Enquiry Officer and it is not known who had held the enquiry. The other glaring defect is that the charge-sheet was issued on 10-10-1974. The appellant gave reply on 12-10-1974 and on the same day he was dismissed, meaning thereby that on the date on which he submitted reply the enquiry was held and order of dismissal was recorded. No opportunity was given to the appellant to prepare the case to defend himself in the enquiry. Since on the same day on which he submitted his reply to the charge-sheet enquiry was held, it is apparent that he was not afforded opportunity to appoint any assistant. On the basis of such an enquiry the appellant could not be removed from service.
5. The legal points raised by the respondent before the learned lower Court which had been decided against him have been reargued before me by the learned counsel for the respondent.
First objection was that Karkhana Alaat-e-Zari was taken over by the Agriculture Department of the Government on 1-11-1976, but the Government was not impleaded as party. The other objection was that at the time the grievance petition was lodged, Karkhana Alaat-e-Zari was being run by the Administrator, Cooperative Development Fund and Projects under the West Pakistan Cooperative Board (Dissolution) Act, 1966, therefore, the Administrator, Cooperative Development Fund and Project was a necessary party. In the written statement no such objections were raised, therefore, at the argument stage in the learned lower Court and at the appellate stage the respondent cannot raise such questions of fact. The learned lower Court thus rightly repelled back the above- mentioned objections. The other objection raised before the learned lower Court by the learned counsel for the respondent was that since the grievance petition was brought in the Junior Labour Court and in its pendency the Junior Labour Courts were abolished and afterwards sections 6 and 7 of the Industrial Relations Ordinance, 1969 were deleted by Order XI of 1977 without substituting any other sections and without inserting any saving clause, the petition stood abated. The argument was rightly repelled back by the learned lower Court. Just as argued by the learned counsel for the respondent, on the abolition of Junior Labour Courts, the cases pending there stood transferred to the Labour Courts, therefore, the said Courts became competent to decide the cases and no question of abatement arises on the abolition of Junior Labour Courts. There was no occasion and necessity to insert any clause saving the pending cases, because they already stood transferred to the Labour Courts on the abolition of Junior Labour Courts.
6. So far as back benefits are concerned, the appellant is not entitled to the same, because neither in his grievance petition, nor in his statement he urged that he remained without any earnings during the period of dismissal.
7. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be reinstated in service without back benefits.