1. The petitioner has lodged the present petition for re-instatement in service with full back benefits on the grounds: -
(i) That the petitioner was employed as Welder by the respondent on 24-6-1971.
(ii) That the petitioner was an active Member of the Trade Union and because of these activities the respondent became annoyed and issued charge-sheet on false allegations.
2. (i.e) That the action of the respondent was not bona fide and was based on victimization.
(iv) That the petitioner was issued another charge-sheet by the respondent on 15-9-73 regarding certain allegations, which were incorrect and baseless. The charge-sheet was duly replied to by the petitioner requesting for the to submit detailed reply.
(v) That the petitioner explained the true position in his reply dated 24-9-1973 and denied the allegations about his previous Employer's Service Certificate.
(vi) That without any proper enquiry after receiving the reply of the petitioner, the respondent dismissed the petitioner from service on the charge of misconduct.
(vii) That the allegations regarding previous service did not amount to misconduct.
(viii) That the respondent contravened the specific and mandatory provisions of Standing Order No. 15 (4) of West Pakistan (Standing Orders) Ordinance, 1968.
(ix) That the petitioner filed a petition under section 25-A of Industrial Relations Ordinance, 1969 before the Junior Labour Court, Rawalpindi which was dismissed on the ground that due to the enforcement of Essential Services (maintenance) Act, 1952, the said Court had no jurisdiction.
(x) That the petitioner went on appeal to Punjab Labour Court No. 2 but it was dismissed on 16-7- 1974 on the same ground, hence this petition before the National Industrial Relations Commission.
3. The respondent was directed by me to submit written reply to the petition which was submitted on 8-10-1974. In view of the preliminary objections raised by the respondent, the petitioner was ordered to file replication which was filed on 24-10-1974.
4. As the respondent had raised preliminary objection as to the jurisdiction of NIRC to entertain such like petitions which objection was also raised in so many other cases pending before me, hence this case was fixed for arguments alongwith other cases and vide my detailed order dated 30-12- 74, 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 tad the jurisdiction to entertain such like petitions an thereafter the case Was fixed for arguments regarding the merits of the case. On 9-1-1975 the learned counsel of the parties were heard at length regarding the merits of the case and the file was also duly persued by me. The arguments of the learned counsel for the parties and the p rural of the file showed that the petitioner was served with a show-cause notice on 15-9-1973 regarding the concealing of the fact of having been dismissed by the BECO in 1968. (Photostat copy of show-cause notice Annex. A on the file). The petitioner replied to the show-cause notice telegraphically (Copy P/I on the file) denying the misconduct and subsequently, applied for extension of the to give detailed reply to show-cause notice. He was given the to submit his explanation vide letter (Copy Annex. B on the file) and vide letter dated 26-9-73 (Annex. C on the file) the petitioner was directed to submit explanation on that very date by 13-45 hours. The petitioner replied to this letter vide letter dated 16-7-73 (Copy Annex. E) denying the misconduct praying that reply to the show-cause notice could not be given in such a short the as he wanted to give a detailed reply, he requested extension of the for reply, but instead he was dismissed on 27- 7-73 (Copy of dismissal Order Annex. F on the file). The file also shows that vide application dated 2C-9-73 Annex. D on the file) the petitioner was granted interview with the General Manager. But this fact does not absolve the respondent from holding an equity in view of the clear cut denial of the charge levelled against him. It has been contended by the learned counsel for the respondent that the petition is much belated because according to him, the petitioner was dismissed on 27-7- 73 and he approached the NIRC on 24-3-74 but this agreement has got no force because the file shows that the petitioner has not been sleeping over his right and has been trying to get his grievances redressed through the Junior Labour Court and the Punjab Labour Court No. 2 and the later court dismissed his appeal on 16-7-74 on the ground of jurisdiction. The learned counsel for the respondent has also referred to 1966 PLC 572 contending that enquiry was not necessary in each and every case of dismissal, but I find that in the case referred to, the workers had refused to receive the show-cause notice. While in this case the facts are otherwise, the show-cause notices were duly received and the allegations made against him were challenged by the petitioner hence the ruling does not apply to this case. Thus it is evident that when all is said, the fact remains that in spite of clear cut denial of the allegedly misconduct the respondent did not institute any enquiry whatsoever. I am of the view that in case there is denial of misconduct on the part of an employees in view of the mandatory provision of Standing Order 15(4) of the West Pakistan (Standing Orders)
5. Ordinance, 1968, it is incumbent on the authority levelling the charges against the person, to institute an enquiry. I am supported in this view by an authority reported in 1972 PLC 327 wherein in para. No. 15 his Lordship Mr. Justice Nasim Hassan Shah, has held that "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 obtaining the 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 opportunity to the person complained against to offer his defence if he is so advised. See Rehanuddin v. Government of West Pakistan (PLD 1958 Lab. 486). This judgment was upheld by the Supreme Court of Pakistan reported in the Supreme Court Monthly Review, 1973 p 455 wherein it has been held that ---in our opinion, therefore, it was necessary and consistent with the principles 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 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---. In view of the above discussion the respondent having contravened the mandatory provision of Standing Order No. 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 the dismissal of the petitioner passed by the respondent cannot be held to be justified because in case of enquiry the respondent might have been able to prove that he had not been guilty of misconduct, hence I direct as under :-
(i) Inaam Ali ex-Welder, H.M.C., Taxila, District Rawalpindi be re-instated as such.
(ii) Imam Ali having been dismissed on 27-7-73 and instead of approach--ing the right forum (the then Central Labour Commissioner), he chose to approach the Junior Labour Court and the Punjab Labour Court No. 2 which resulted in much lapse of the and he subsequently approached the NIRC on 24-8-74 and in view of the fact that he did not do any work in the respondent's project after 27- 7-73, I do not D consider it just and equitable to burden the respondent with payment of any back benefits to the petitioner hence I direct that the period commencing from 27-7-73 up-to-date of his re-instatement be treated as leave without pay so that there should be no break in the service of the petitioner.