' This is an appeal challenging the decision dated 12-5-1986 recorded by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi directing the reinstatement of the respondent in service and at the same time permitting the appellant to hold fresh inquiry. The question of back benefits was directed to depend upon the result of fresh inquiry. The respondent has brought cross-objections challenging the permission of fresh inquiry and claiming back benefits. The appeal and cross objection both are being disposed of together through this single judgment.
2. Twice the inquiry was postponed at the request of the respondent but on the third occasion request was refused and two hours were given to bring the assistant or if he was not available, to bring any other person to assist the respondent during the inquiry. The respondent failed to do so on the expiry of two hours and left the office. So, ex parte inquiry was held. The ground of adjournment of inquiry on the third time was that the representative of the respondent had not been found. Afterwards application Exh. P-6 was given to the Inquiry Officer for holding the inquiry afresh but to no purpose. It is, however, not shown if by the time Exh. P-6 was made, the inquiry report had been sent or not by the Inquiry Officer. It has been argued by the learned counsel for the appellant that it was the sole responsibility of the respondent to appoint and produce his representative and as two adjournments had been granted, the Inquiry Officer was justified in refusing to adjourn the inquiry for the third time. I cannot accept this argument of the learned counsel. For every adjournment it is to be seen whether the reason given was cogent or not. If the reason is cogent, adjournment should be allowed. The respondent had on the third date shown his inability to produce his Representative as he did not know his whereabouts and as and when he would be available, and whether he would be willing to represent him in the inquiry . This is not the case of the appellant that the Representative was available, but intentionally the respondent did not bring him. Application Exh. P-6 shows that the Representative was not available and he had gone away. This appears to be reason that he had not been produced on the date of inquiry. Since it was not physically possible for the respondent to bring his Representative, his request for adjournment was quite genuine and thus was not a sufficient ground to reject the prayer that twice before adjournment had been granted. The direction of the Inquiry Officer that if the Representative was not available, some other person should be produced within two hours, was not reasonable. Within two hours it was physically impossible for the respondent to search for his previous Representative and to look for another one if he was not available. Likewise it was not physically possible for the new Representative to come prepared within two hours to assist the respondent during the inquiry. Refusal on the part of the Inquiry Officer, therefore, was not justified, and the learned lower Court is justified in holding that proper opportunity was not afforded to the respondent to defend himself. Learned counsel has cited PLD 1981 SC 225 and PLD 1978 Lah. 1065 but they are not relevant to the point argued.
3. The next point argued is that although an objection had been raised in the written statement that the respondent was not a workman, yet the learned lower Court did not record any finding thereon, nor the respondent produced any evidence. Before recording order of punishment an application under section 47 of the Industrial Relations Ordinance, 1969 was moved to the learned lower Court for permission to dismiss the respondent. In the said application the respondent was admitted to be a workman. Thereafter, the appellant could not go round and contend in contradiction of his previous contention that the respondent was not a workman. It was not necessary for the appellant to expressly say in the application given under section 47 that the respondent was a workman. In view of the admission made by the appellant in the petition under section 47, it was not necessary for the learned lower Court to record finding.
4. The other point argued is that the grievance petition was against the Mills and thus was not maintainable. Lawrencepur Woollen Mills was sued not in its name but through the Manager. This is not the case of the appellant that the Manager was not employer of the respondent. Needless to say that in labour cases employers are to be sued and since the Mills was sued through the Manager, there was no legal defect.
5. In support of his cross-objection the learned Representative of the respondent has argued that soon after the lodging of the appeal, the appellant started inquiry against the respondent and thus accepted the order of the learned Court, therefore, the appeal can no longer proceed. The impugned decision shows that no time was fixed for starting Of concluding the inquiry, therefore, the appellant was at liberty to start the inquiry after the decision of the appeal. There is force in the contention of the learned Representative that by starting the inquiry the appellant accepted the order impugned in the appeal. In cases where time is fixed, it is necessary for the employer to comply with the order within the said time and in those cases it may be said that starting of the inquiry did not debar the employer from challenging the order of the learned lower Court.
6. So far as back benefits are concerned, in cases where fresh inquiry has been permitted, always back benefits depend upon the result of it. So, the learned lower Court gave a right direction in this respect.
7. As a result of the observations made above, the appeal fails and is consequently dismissed and cross-objections are partly accepted holding that by starting the inquiry, the appellant was debarred from prosecuting the appeal.