The third respondent was employed as a Sweeper with the petitioners for about to years. The petitioners' case is that the third respondent frequently absented himself from duty, therefore, several charge-sheets, notices and warnings were issued to him. As he did not improve his conduct he was finally dismissed from service on 24th January 1974. But he challenged this order before the Junior Labour Court who ordered his re-instatement in service on 22nd April 1974.
Pursuant to Junior Labour Court's order he was reinstated in service but he resumed his duties on 9th May, 1974 i.e. With the delay of about 16 days instead of joining the duties on the day following the passing of the order.
2. After the third respondent joined the service he was once again charge-sheeted mainly on the basis of all the old charges upon which he had earlier been dismissed from service. However, this the a new charge regarding joining the duties after 16 days of the passing of the order of re-- instatement by the Junior Labour Court was also added. The charge-sheet issued to the third respondent was replied by him on 11th May, 1974 in which he specifically urged that he had been trying to resume his duties but he was never allowed to resume his work on the plea that the management was intending to file an appeal against the order of his re-instatement passed by the Junior Labour Court. However, his explanation was not accepted and an enquiry was instituted against him. After the enquiry was over final show---cause notice dated 20th May, 1974 including enquiry report was sent to him which he duly replied. He urged that the enquiry officer was partial and demanded that some independent enquiry officer should be appointed pre--ferably from amongst the partners of the factory. But his request was not acceded to by the petitioners and in observance to the recommendations of the enquiry officer he was dismissed from service on 24th May 1974. He protested against his dismissal from service vide letter dated 28th May, 1974 but to no avail.
3. The third respondent then, filed an application before the Junior Labour Court who ordered his re-instatement in service mainly on the ground that the enquiry had not been conducted in accordance with law as the complete record of enquiry was not available. Only some notes had been kept upon which the findings of the enquiry officer were based. An appeal was preferred by the petitioners against the order of the Junior Labour Court which wa3 also dismissed by the Labour Court on 26th November 1974.
4. The learned counsel for the petitioners has vehemently argued that the non-maintenance of the complete record of enquiry was only a technical flaw and making it a basis for his impugned order the Presiding Officer of Junior Labour Court could not have held that no data was placed before him in order to enable him to examine as to whether or not the enquiry had been held in accordance with the provisions of law, I am unable to endorse this view. According to section 25-A (5), the Junior Labour Court while ad--judicating and determining any grievance placed before it by an individual is bound to go into all the fats of the case and then pass an appropriate order. In this case the Junior Labour Court could not go into all the facts of the case as the complete record of the domestic enquiry was not placed before it. It has been admitted by the learned counsel for the petitioners that only some notes were kept by the enquiry officer. He has, however, argued that these notes were sufficient to provide a complete data to the enquiry officer to reach a definite conclusion in respect of the case. May be that the notes were sufficient for the enquiry officer but these notes were of no avail to the Junior Labour Court before whom the entire facts of the case had to be placed by the contesting parties. The petitioner having not kept and placed the record of the enquiry, the Junior Labour Court could not adjudicate upon the matter in accordance with the provisions of section 25-A (5) of Industrial Relations Ordinance, 1969. The Presiding Officer of the Junior Labour Court therefore rightly held that the record of the enquiry having not been maintained the enquiry itself was in violation of the provisions of law.
5. The other point canvassed by the learned counsel is that the Labour Court bad wrongly held that even though the third respondent joined his duties 16 days after his re-instatement but he could not be considered absent. I am in full agreement with this finding of the Labour Court because absence of the third respondent could only be regarded as absence in such case if after once joining the duties he had not attended his work subsequently. In this case he did not join his duties at all for about 16 days and therefore it cannot be said that he was absent from his duty. All that can be alleged against him is that he did not join his duties till after 16 days of the passing the order of re-instatement. The fact of his not joining the duties could not give rise to a charge upon which an enquiry could be held or punishment could be recommended. Apart from this it is again a disputed fact as to whether the third respondent deliberately remained away from work for 6 days after the date of his re-instatement by the Junior Labour Court or he was not taken on duty by the petitioners. Dealing with this matter in writ jurisdiction I find myself unable to go into these disputed questions of fact. Even otherwise, in any case I am inclined to dismiss this petition on the ground that has been recorded earlier, it would not therefore be necessary to thrash out and give a finding on these disputed questions of fact.
6. As a result of what I have discussed above, I do not find any sub--stance in this petition which is hereby dismissed. In the circumstances of the case there will be no order as to costs.