1. The petitioner has approached the National Industrial Relations Commission for re-instatement in service with full back benefits on the grounds: -
(i) That he was employed by the respondent as turner on 24-5-1973.
2. (ii)That he was charge-sheeted on 13-7-74 for the charge of misconduct regarding the alleged absence without leave. The charge was duly replied to and explanation given by the petitioner alongwith medical certificate.
3. (i.e)That the respondent did not observe the mandatory provision of Standing Order 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 while terminating the services of petitioner on 12.8-74.
4. (iv)That no independent enquiry was held before final order of dismissal was passed and hence the order of dismissal was illegal and liable to be set aside.
5. The respondent was ordered to submit written reply to the petition which was duly submitted on 8- 10.74, and in view of the preliminary objection raised by the respondent the petitioner was ordered to file replication which was submitted by him on 24-10- 1974. The respondent had raised a preliminary objection as to the jurisdiction of NIRC to entertain such like petitions, which objection had been raised in many other cases as well, hence this case was fixed alongwith other cases for arguments regarding the objection. Vide my detailed order dated 30-12-1974, the preliminary objection was disposed of and it was held by me that the learned Chairman, NIRC and the Member, NIRC authorised by him in this behalf had the jurisdiction to entertain such like petitions, hence the case was fixed for consideration on merits. The learned counsel of the parties were heard at length regarding the merits of the case and the file was also gone through by me carefully. Arguments of the learned counsel and the perusal of the files shows that the petitioner sent an application for leave from Karachi from 7-3-74 to 7-4-74 which was duly sanctioned by the respondent.
6. Thereafter, the petitioner sent to applications vide Registered post for extension of leave on medical grounds. These applications were not replied to by the respondent for obvious reason, which was that the petitioner did not give his address at Karachi in the said applica--tions (applications are on the file marked A/I and B/I).
7. The petitioner reported for duty on 12-7-74. He was served with a show---cause notice on 13-7-74 which was duly replied to by the petitioner. He also submitted certificates from a private medical practitioner of Karachi. The certificates are on the file marked C/I and D.I, but the respondent did not constitute an Enquiry Board to enquire into the charge levelled against the petitioner and instead the respondent dismissed the petitioner on the ground that the medical certificates from the private Doctor had been obtained fraudulently in order to cover the intentional absence.
8. However, the medical certificate related to the period from 4-5-1974 to 11-7-1974 and the explanation given by petitioner (marked 'E' on the file) in reply to the show---cause notice did not give any explanation for absence for period commencing from 8-4-74 to 3-5-74. The learned counsel for the respondent has contended that the petitioner did not comply with the standing instructions of the respondent-Company regarding the medical treatment (standing instructions marked as 'C' on the file) which require that the employees while on leave should take medical treatment only from WPIDC Doctors whenever available and where not available, the employees can receive medical treatment from Government hospitals/dispensaries. As regards there being no explanation in the reply marked 'E' for his absence from 8-4-74 to 3-5-74, the petitioner has stated in his reply that he had duly sent to Registered applications for leave for the said period. I have carefully considered the respective contentions of the parties and when all is said, the fact remains that after the denial of charge levelled against him in the show-cause notice, in view of the mandatory provisions of Standing Order 15(4) of West Pakistan (Standing Orders) Ordinance, 1968, it was incumbent on the respondent to institute independent enquiry before dealing with the charge against the petitioner. If any authority is needed in this respect, it is 1972 PLC 327 wherein in Para. No. 15 his Lordship Mr. Justice Nasim Hassan Shah, has held as under: - "I may add that I should not be understood to mean that the employer could proceed to take action merely after serving the workman with a charge-sheet, and obtained written reply from him, It is established law that if charges are levelled against a person which raise questions of fact and these are challenged by a person concerned, it becomes the bounden duty of the authority levelling the charges to hold an enquiry into them after giving a fair opportunity to the persons complained against to offer his defence if he is so advised. (See Rehanuddin v. Government of West Pakistan PLD 1958 Lah. 486). This judgment was upheld by the Supreme Court of Pakistan reported in Supreme Court Monthly Review, 1973 page 455, wherein it has been held that "in our opinion, therefore, it was necessary and consistent with the principle of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why order of dismissal should not be passed against him. Evidently such an opportunity must take the form of written show-cause notice to the respondent. Mere fact that the respondent had a personal audience with his employer when he asserted he was not guilty cannot replace the aforesaid requirement of law".
9. In view of the above discussion, the respondent having contravened the mandatory provisions of Standing Order 15(4) of West Pakistan (Standing Orders) Ordinance, 1968, which is quite in conformity with natural justice and equity, by instituting no enquiry whatsoever, the order of dismissal of the petitioner passed by the respondent cannot be held to be justified, hence 1 B direct as under:
(1) Ashiq Hussain Ticket No. 1312 ex-Turner H. M. C., Taxila, District Rawalpindi, be re-instated as such.
(2) He should be paid full back benefits from the date of his dismissal i.e. 12-8-1974 up to the date of his re-instatement.