JUDGMENT This is an appeal against the order dated 28-2-74 passed by Labour Court No. 3, Lyallpur under section 25-A of Industrial Relations Ordinance, 1969.
2. Facts of the case are that some cloth of the value of Rs. 600 or so was stolen on 11-6-72 at about 10-00 p.m. Three employees including Shamsher Ali, appellant, were given notice of misconduct and an inquiry was held vide enquiry report Exh. R-3 dated 15-7-72. Charges of theft and habitual absence without leave were proved against the appellant and he was ordered to be dismissed. Vide dismissal order Exh. P-13 dated 23-7-72. Aggrieved by that order the appellant filed a petition under section 25-A of I.R.O.
1969 before Labour Court No. 3, Lyallpur which gave a finding that the charge of theft had not been proved as there was no evidence to that effect on the record and that not only the enquiry against the appellant was conducted in an unfair manner and against the procedure laid down by law but was also perverse. The learned Labour Court, thereupon, re-instated the appellant but did not give him back benefits because it was of the 597 view that the appellant had not reported for duty for a number of days after the alleged occurrence of the theft. The appellant has now preferred this appeal claiming back benefits.
3. Respondent not only contested the appeal on merits but also filed cross-objections.
4. On 4-4-74 this appeal was admitted at the preliminary hearing and notice was issued to the respondent for 11-4-74. The said notice was served on the respondent on 6-4-74 as it is evident by the acknowledgement due receipt on the record. On 11-4-74 Ch. Altaf Hussain, Advocate, who was engaged by the respondent, sent an application for adjournment on the ground of illness and the case was then adjourned to 26-4-74. On 26-4-74 the case was again adjourned to 23-5-74 on the ground of illness of the counsel for the respondent. On 8-5-74 Mr. Tariq Qazi Advocate, appearing on behalf of Ch. Altaf Hussain, counsel for the respondent filed cross-objections. According to Order XL1, rule 22, C. P. C. cross-objections have to be filed wilhin one month from the date of service on the respondent. As already mentioned above the notice of appeal was received by the respondent on 6-4-74, the respondent should have filed cross- objections within one month from that date. Since they were filed on 8-5-74, which was not within one month of the receipt of notice, the cross-objections are time barred. There is no application on the record for the condonation of delay-. In view of the above these cross-objections cannot be entertained.
5. Now the point for determination is as to whether this appeal is competent in view of Industrial Relations Amendment Act, 1973, which was assented to on 9 2-73. Section 37 of the said Act reads as follows :-- "37. Savings.--Nothing in this Ordinance or any other law shall be deemed to -- "(a) require the transfer to the Junior Labour Court of any matter under subsection (4) of section 25-A, which was pending before a Labour Court immediately before the commencement of the Industrial Relations (Amendment) Ordinance, 1972 (XLVll of 1972); (b) affect any appeal from an order of a Labour Court which was pending before a Tribunal immediately before such commencement." From the above it is clear that the petitions under section 25-A which were already pending immediately before the Ordinance, 1972, were saved but the appeals against the decisions of the Labour Court under section 25-A could only be heard by the Labour Appellate Tribunal if they were pending before the commencement of the Amending Ordinance. In other words it would appear that the appeals against the decisions of the Labour Court under section 25-A after 10- 11-72, when the Amending Ordinance came into force could not be heard by the Labour Appellate Tribunal. , This proposition does not appear to be correct because a right of appeal is a substantive right and accrues when the Us commences, unless it is taken away expr^sly or by necessary intendment by the subsequent enactment. I am fortified in this view by the Judgment of the Supreme Court (India) in the case, Garikpati Veeraya v. N. Subbia Choudhry PLD 1957 SC (lnd.) 448 wherein it was observed :-- "The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeals then in force are preserved to the parties thereto till the rest of career of the suit.
The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences although it may be actually exercised when the adverse judgment is pronounced. Such right is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. The vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." The same view was held by the Full Bench of the High Court in the case Ghazi and others v. The State and another (l), wherein it was observed :-- "The right of appeal is not a matter of procedure but is a substantive right and there is no vested right in procedure. A right of appeal existing on a day on which a proceeding Us commences or prosecution is alleged, is a vested right and that right is governed by the law prevailing on this day and not the law prevailing on the date of decision. This vested right can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." Our Supreme Court in the case Sona and another v. The State and others (2), observed :-- "One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, coutinued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulations had not been passed.. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has to be followed."
The Sind Labour Appellate Tribunal in the case Pakistan Security Press Employees* Union v. Pakistan Security Printing Corporation Limited (3), held "It is settled law that unless Legislature had taken away, either specifically or impliedly, the right of appeal against certain provisions of law, it will continue if the order under that provision of law was appealable. The right of appeal came to vest from the date that the application under section 25-A of the Ordinance was made. I would hold that the appeal lies."
6. The present petition under section 25-A was filed before the Labour Court on 28-8-72, i.e. before Industrial Relations Amendment Act came into force. The Labour Court announced its decision on 28-2-74 after the promulgation of Amendment Act, which did not either expressly or by necessary (3) 1974 PLC Note 105 at p. 56 intendment take away the right of appeal to the Labour Appellate Tribunal.! Since at the time when the petition was filed before the Labo ir Court, therefl was a right of appeal to the Labour Appellate Tribunal, I hold thit] appeal against the decision in question would still lie to this Tribunal.
7. The learned Labour Court held that the order of dismissal of the appellant was illegal not only on the ground that there was material defect in the enquiry but also that the enquiry was perverse. In this connection it may be pointed out that alongwith the second show-cause notice issued to the appellant, a copy of the enquiry report was not sent. It is well established that when an order of dismissal of a workman is set aside on technical grounds he is reinstated but back benefits are not allowed to him. In the present case, however, it was argued by the learned counsel for the appellant that since the enquiry against him was perverse he should have been allowed back wages also from the date of his dismissal.
8. From the perusal of the record I find that there were two charges framed against the appellant i e. habitual absence without leave and theft of cloth belonging to the mill. For both of these charges separate charge-sheets were issued to him. Charge-sheet Exh. P-3 dated 22-6-72 regarding his absence without leave shows that the appellant was absent without leave for 10 days. According to Standing Order 15 (3) (e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, workman! committs misconduct if he is absent without leave for more than 10 days. Inl^, the present case as is evident from the charge-sheet, it is clear that the appel-r lant was absent without leave for only 10 days and not more. Therefore he| is clearly not guilty of misconduct as defined under the law. 8A. Regarding the offence of theft I find that only the enquiry report has been placed on the record alongwith the statement of the appellant in which he denied the charges framed against him. Neither the enquiry officer nor the statements of witnesses deposing against the appellant, were produced. One Ghulam Sabar is alleged to have caught the appellant red-handed with the stolen property in his possession. The appellant has all along been asserting that he had been falsely implicated by Ghulam Sabar. Under these circumstances it was necessary that his statement before the enquiry officer should at least have been placed on the record. Anyhow from the record it appears that Ghulam Sabar was not examined before the enquiry officer. According to (R. W. 1) Sh. Riaz Ahmed, Labour Officer, who was one of the members of the Board of Enquiry, the statements of all witnesses against the petitioner were recorded on 12- 7-72. He specifically stated that on that date Ghulam Sabar appeared as P. W.
1. From the report Exh. P-17/1 of the Superintendent, District Jail, Lyallpur, Ghulam Sabar and others were admitted in Jail on 6-7-72 for an offence under section 307/34, P. P. C. and Ghulam Sabar was released on bail on 15-7-72. This report has been admitted to be correct by the leamed counsel for the respondent.
Thus it will be seen that on 12-7-72 Ghulam Sabar was in Jail and therefore his statement could not have been recorded as alleged by R.*W. 1 therefore the authenticity of the whole of the enquiry proceedings has become doubtful. Perhaps for this reason the record of the enquiry proceedings was withheld from the Court. This clearly shows that the enquiry against the appellant was not only perverse but also conducted in a farcical manner. It was essential for the Management to have put forward its case scrupulously in accordance with the facts as they were. If it does not come with clean hands, it will have to bear the consequences.
9. The learned counsel for the respondent, however, contended that since the charge of theft had been framed against the appellant, he should not be allowed back wages. This contention has no force because it has not been proved that the appellant was in fact guilty of theft as the enquiry held against * him was perverse. It is well established that a workman on re-instatement isjD allowed back wages if the enquiry against him is perverse, and conducted in ar farcical manner. I am fortified in this view by the judgments of Industrial Appellate Tribunal, West Pakistan, in the cases, Muhammad Alam v. District Manager, Government Transport Service, Lyallpur (1) and Muhammad Saeed v. Road Transport Corportion, Lahore (2). t 10. In the result I accept the appeal and amend the order of the Labour Court by granting appellant back wages from the date of his illegal dismissal in addition to his re- instatement. (1) 1969 PLC 821 (2) 1969 PLC 841