1. DECISION This is an appeal on behalf of the Management of Colony Textile Mills Limited, Ismailabad Multan against the order dated 19th November, 1972 whereby Muhammad Khalil workman, hereinafter mentioned as respondent was re-instated in service in supersession of the order of dismissal passed against him by the Management on account of his absence from duty for a period exceeding ten days i.e. from Ist August, 1973 to 12th August, 1973. The case of the respondent as given in the petition is that he fell severly ill and could not recover for a period of three months, that he reported to the Management on 1st October, 1973 to resume his duties when he was informed that his services have been terminated. According to the written statement the respondent had turned up in the Mills on 24th September, 1973 and not on 1st October, 1973 where-after a regular enquiry was made regarding his absence without leave and he was ultimately dismissed.
2. According to the impugned order the petitioner failed to establish that he had obtained proper leave o0r had been granted Medical Certificate for his illness but the basic fact going in his favour was the natural phenomena of the unprecedented floods which disrupted the means of com-- munications and were responsible for his absence.
3. I have gone through the record of the learned lower Court as well as the proceedings of the domestic enquiry. It has been found that in the first instance the respondent was given a notice of three days to appear before the Enquiry Officer and defend himself against the charge. However before the enquiry was concluded he appeared before the enquiry officer on 24th September, 1973 and made a statement to the effect that he had to leave for Khan Garh to attend his sister on her sick bed and therefore could not send a proper application to the Mills Management. In the opening part of his statement he stated that he was unavoidably held up in the village of his sister due to floods which had also washed away the residential quarter of his sister and that was the immediate cause of his being stranded and could not attend his duties.
4. The statement of the respondent is the only evidence recorded by the Enquiry Officer who did not at all bother himself to enquire into the correctness or otherwise of the stand taken by the respondent and having disbelieved his statement proceeded to write down the enquiry report where upon the order of dismissal was ultimately founded by serving a routine show cause notice.
5. In such circumstances I am of the view that the respond--ent was prejudiced in his defence whereas this is commonly admitted fact that floods of September, 1973 presented obstacle for moving from one place to the other. No doubt that respondent did not dilate on this aspect of his case in the petition before the learned Lower Court yet this was the defence put forward by him in the domestic enquiry and could not be brushed aside without making any probe into it so much so that the enquiry officer did not hold the defence taken by the respondent as incorrect, not to speak of any reasons in support of holding the defence as incorrect or false. The mere ommission of the appellant of this defence in the petition should not deprive him of the right of his defence in the domestic enquiry when the main charge against him was the absence from duty to which he confined his pleadings. Moreover in his statement before the learned Lower Court when asked on behalf of the appellant he mentioned the same plea of defence in addition to other plea. In the light of these circumstances I do not agree with the reason given in the impugned order in support of the re-instatement of the respondent which he deserves on the merits of the case. Because be was prejudiced in his defence by not being heard properly on the plea that he was unavoidably stranded through countrywide floods. So his re-instatement in service is upheld on the merits of the case for the reasons different from those given by the learned Lower Court. As for the back- benefits no cross-appeal was filed on behalf of the respondent nor this question has been discussed, the impugned order therefore being upheld the appeal is dismissed.