' This is an appeal directed against the decision dated 31-7-1986 recorded by the learned Presiding Officer, Punjab Labour Court No,4, Faisalabad whereby the prayer of re-instatement in service was refused but the order of dismissal was converted into an order of simple termination entitling the appellant to the benefits such as provident fund gratuity etc. The appellant claims to be reinstated in service by setting aside the order of dismissal.
2. The allegation against the appellant was that he had remained absent on 22-9-1984, 26-9-1984, 2-11-1984, 12-11-1984, 13-11-1984, 27-11-1984, 7-12-1984, 28-12-1984, 14-1-1985, 19-1-1985, 13-2-1985, 21- 2-1985, 5-6-1985, 7-6-1985 and 8-7-1985 but through collusion with the time keeper got his presence recorded in the record and received wages for the said period. On account of the above allegations Standing Order 15(3)(b) of Standing Orders Ordinance was applied. The appellant in answer to the charge-sheet did not accept the allegations and sought retirement on the ground that if he stood the inquiry, he would be disgraced in the eyes of his children and friends. Since the guilt was not admitted, an inquiry notice was sent for holding the inquiry. The appellant is alleged to have sent an application Exh. R-4 again seeking retirement. He is alleged to have sent resignation Exh. R-5 thereafter. The date of inquiry was 8-9-1985 and before prosecution evidence was to be started, the statement of the appellant was recorded writing a note that he had himself offered to make a statement. In his statement c9nfession is contained and he prayed for the acceptance of his resignation. To this statement the Inquiry Officer Mr. Shamim Ahmad sent a report on the basis of which the appellant was dismissed from service. The case of the appellant is that he had not remained absent and had worked on the dates mentioned in the charge-sheet and received the wages justifiably. He also deposed in his statement before the learned lower Court that no inquiry was held nor he was allowed to enter the factory to stand the inquiry. He further said that Mr. Shamim Ahmad had come to his residence and received his signatures on the charge-sheet and two blank papers giving him assurance that no action would be taken against him. Mr. Shamim Ahmad appeared as R.W. 1 and denied to have dictated the reply to the appellant in answer to the charge-sheet and receiving his signatures on blank papers. In the inquiry proceedings no date of inquiry as 10-9-1985 is written but at the bottom of the notice of inquiry Exh.
P-5 the next date is given as 10-9-1985. Mr. Shamim Ahmad, R.W. 1 explained it in cross- examination stating that the date of 10-9-1985 was written on the inquiry notice on 8-9-1985 in order to give another opportunity if he wanted to say anything else. If prosecution evidence had been recorded, there could have been some justification to give another opportunity to the appellant to say anything else. If the reply to the charge-sheet is genuine and if the statement of the appellant was genuinely recorded during the inquiry, there was no necessity of fixing the date of 10-9-1985. The Inquiry Officer prepared the inquiry report on that very date i.e, 8-9-1985 and thus he had become functus officio and no question of giving another opportunity to the appellant to say anything else could arise. Mr. Shamim Ahmad, therefore, has not given any satisfactory explanation of the noting of next date of inquiry as 10-9-1985 at the bottom of the inquiry notice.
The inquiry notice was produced by the appellant which means that before it was issued to him, the next date was given at the bottom of the inquiry notice as 10-9-1985. So, the explanation given by Mr. Shamim Ahmad that this date was given to afford further opportunity to say anything else is not convincing. If two dates had been fixed, then the date of 10-9-1985 would have occurred in the body of the notice and not at the bottom. Again before the notice was sent Mr. Shamim Ahmad could not have entered the date at the bottom, because the notice is signed by the General Manager and not by him. It, therefore, appears that the appellant is correct in saying that he was not allowed to enter the factory on 8-9-1985 and no inquiry was held on that date and that the next date was given as 10-9-1985 but before that his statement was recorded on a paper which already was containing the signatures of the appellant. The fact that no date of 10-9-1985 was recorded in the inquiry proceedings further shows that nothing was done on 8-9-1985, nor any date of 10-9- 1985 was fixed. It appears that Mr. Shamim Ahmad in order to save himself entered the next date as 10-9-1985 afterwards on Exh. P-5. The inquiry proceedings, therefore, are not satisfactory. This fact is also noteworthy that the statement of the appellant recorded during the inquiry does not bear the signatures of Mr. Shamim Ahmad. It appears that he was compelled to prepare the statement of the appellant and since he realised that fictitious proceedings were being made, therefore, he in order to save himself did not put his signatures. This is very strange that Muhammad Irshad who was the complainant, signed the statement but the Inquiry Officer missed to sign it. Mr.Shamim Ahmad has not given any explanation why he did not sign the statement of the appellant. I am not satisfied that the reply to the charge-sheet, applications Exh. R-4 and Exh. R-5 and the statement of the appellant recorded in the inquiry, are genuine. Question arises why all this was done and why regular inquiry was not held. The difficulty for the management was that there was no evidence in the case. As stated by Mr. Shamim Ahmad in his statement, the time keeper was also charge- sheeted and dismissed. Only the time-keeper could say whether the appellant had remained absent on the dates mentioned in the charge-sheet and had afterwards marked himself as present. Since he was being proceeded against and was ultimately dismissed, obviously he was not prepared to support the prosecution case. If the absence of the appellant had been recorded on the attendance register, the said register would have been valuable document for the respondent. Since the presence of the appellant was recorded thereon, there was available no documentary evidence. This possibility also cannot be excluded that the appellant, as stated by him, did not remain absent and had worked on the dates mentioned in the charge-sheet and a false case was made against him and since there was no evidence, therefore, applications Exhs. R- 1 and R-5 and his statement on the inquiry file were fabricated on the papers which had been got signed by him previously. Even if it be said that appellant of his own accord asked for retirement and gave resignation, they were ineffective, inasmuch as, as stated in the judgment of the learned lower Court, Mr. Shamim Ahmad has been making an attempt to get pardon from the employer for the appellant. Since on the promise of pardon those applications and confession were taken from him, they had no effect. Any confession obtained by inducement or promise cannot be spontaneous and acceptable. Muhammad Irshad in his report said that he had checked the record of attendance. According to the record of -badlis, the appellant was absent but according to pay slip, he was present. The production of the record of badlis was necessary but it was not produced. A badli is appointed only when the original worker is on leave. The officer who appoints another person as badli cannot miss to see that the person in whose place another person is being deputed as badli is absent. If he is absent, then his absence is recorded on the register and if it is done, then either by overwriting or by interpolation absence can be converted into presence. If the inquiry had been held and attendance register had been produced, it could have shown what was the real position. Muhammad Irshad in his report does not say that the appellant was marked present by making interpolation in the attendance register.
3. The learned lower Court has converted the order of dismissal into an order of termination. I am afraid the Labour Courts have no such jurisdiction. In cases where finding is that the order of conviction is justified, the punishment cannot be changed. It is the prerogative of the employer to prescribe the punishment. Since no inquiry was held and the confession and requests of the appellant for retirement and resignation do not appear to be genuine, it is necessary that inquiry be held. Since the appellant has to some extent been benefitted by the order of the learned lower Court, by conversion of the order of dismissal into the one of termination, it will be the option of the appellant either to accept the order of termination or to stand inquiry.
4. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be reinstated in service and the respondent is allowed to hold inquiry. However, if the appellant happens to accept the order of termination of services, recorded by the learned lower Court, the respondent shall have no option to hold the inquiry. This is noteworthy that the respondent has not challenged the impugned order of the learned lower Court either by way of appeal or by way of filing cross-objections: If inquiry is held, the question of back benefits would depend upon the result of the inquiry.