' This is an appeal against the decision dated 14.12-1976 of Punjab Labour Court No, 1, Lahore.
2. Khalid Mukhtar Pirzada, respondent was employed as a Bill-Clerk In Messrs Packages Limited. On 24-12-1973 he was charge-sheeted on the charge of embezzlement and was placed under suspension initially for four days. Subsequently, the period of suspension was extended for four days from time to time on each occasion vide suspension orders Exh. P-2 to Bib. P-9. Finally, on 26- 2-1974 he was suspended till further orders vide EA. P-10. The case of embezzlement was also reported to the Police and as a result thereof, the respondent was arrested on 29-1-1974 and was released on bail on 21-3-1974. On 13.5-1975 a charge-sheet Exh. P-11 was issued to the respondent in which there were two charges, namely, embezzlement and absence without leave for a long period. He was asked to submit his reply within 48 hours. He submitted his reply EA. P-12 on 17-5- 1975. Regarding charge No, 1 he stated that the appellant could not hold any enquiry because a criminal case was pending and it would constitute contempt of Court if the enquiry was held.
Regarding his absence from 24-12-1975 till 26.2-1974 he stated that he was suspended vide suspension orders EA. P-2 to Exh. P-9 for four days on each occasion and that on 26-2-1974 he was suspended till further orders vide suspension order Exh. P-10. He also stated that he had not received any letter for re-instatement and that he was still under suspension, because the suspension order Exh. P-10 was for an indefinite period. He further stated that after his release on bail he reported for duty but was informed by the predecessor of the Personnel Manager that in view of the suspension orders he was not supposed to attend to duty and would be informed through a letter when required. This explanation was found to be unsatisfactory and so an enquiry was conducted against him. Vide letter Exh. P-3 he was informed that he should appear before the Enquiry Officer on 12.6-1975. Another letter Exh. P. 14 dated 31-5-1975 was also sent to him in which he was informed that the enquiry was fixed for 12-6-1975 at 9-00 a.m. And that if he failed to appear, ex parte proceedings would be taken against him. In his reply Exh. P-11 he stated that the enquiry should be dropped in view of the first objection taken by him in his reply Exh. P-12. He also stated that the departmental enquiry was ma la fide as the company first chose to proceed judicially against him, that while in police custody he was beaten up by the officer of the administration and the members of the Labour Union and that it is why it was decided by the then Personnel Manager that he should not come to the factory premises during his suspension period, otherwise there was danger to his life, and that he was willing to attend to duty if he was given protection by the administration but the latter was silent about the security. In the last paragraph he made the prayer that either departmental enquiry be dropped or kept pending till the decision of the criminal case against him or withdraw the case from the criminal Court and then proceed departmentally against him. In other words, he meant the after the case was withdrawn, then alone departmental enquiry could be held against him. On 12-6-1975 he did not attend the. Enquiry and so the enquiry was conducted ex parte. Exh. R. W. 3/1 are the enquiry proceedings and Exh. R. W.
3/2 is the enquiry report. The Enquiry Officer did not give any finding against the appellant on the charge of embezzlement. In this regard it was stated as under :- "So far as the matter of pendency in the Court of Illaqa Magistrate is concerned, the Management under the labour laws, being a special procedure, is fully entitled to hold domestic enquiry and give its decision, but I do not consider the matter of his criminal cases at this stage and take only the charge of long absence."
' The Enquiry Officer found the respondent guilty of the charge of absence without leave for a long period and as a result thereof, the respondent was dismissed from service vide letter dated 24- 6.1975, the photostat copy of which is. Exh. P-16.
3. The respondent, thereafter, on 18-2-1975 filed a petition under section 25-A of Industrial Relations Ordinance, 1969, seeking the re-instatement with back benefits before the Labour Court, which accepted the same in toto.
4. Aggrieved by the above decision, Messrs Packages Limited, Lahore, appellant have preferred this appeal.
5. The learned counsel for the respondent at the outset contended that since a criminal case was still pending against the respondent, the domestic enquiry should have not been held. This contention has no force because the pendency of a criminal case against a workman would not deprive the right of the employer to hold a domestic enquiry against him. The object of the criminal proceeding is different from the domestic enquiry. The object of the domestic enquiry is only to find out whether the workman charged for misconduct was fit to be retained in service or should be dismissed, or any other penalty be awarded, if be is found guilty. In any case, the right of the State under the Penal Code is quite distinct from the right of a private employer against his employee who commits a misconduct. An employer has the authority to deal departmentally with allegations of misconduct against a workman even though a criminal case is pending over the same subject- matter. This would not be contrary to principles of natural justice nor any such departmental enquiry or the finding of such enquiry would constitute contempt of the criminal Court. I am fortified in this view by the judgments in the cases, Roneo Limited, Karachi v. Assadullah and Sind Tobbaco Company, Hyderabad v. Zamir-ud-Din.
6. Now the point for determination is as to whether the respondens can challenge the enquiry proceedings. In this connection learned counsel for the appellant contended that the respondent failed to join the enquiry proceedings and, therefore, he cannot challenge the enquiry proceedings held ex parte against him. In support of his contention he relied on the judgment of the Industrial Appellate Tribunal, West Pakistan in the case, Abdul Karim v. The District Manager, Government1 2 Transport Service, Hyderabad and another wherein it was observed that if an accused worker refuses to receive charge-sheet the Enquiry Officer was not bound to intimate date fixed for ex pare proceedings. He also relied on the judgment In the case, Pak-American Fertilizers Factory Ltd., Dawood Khel v. Khuda Bakhsh Wattoo, wherein it was held that a worker intentionally not joining the enquiry proceedings, the ex parte proceedings held against him, were valid.
7. The principle laid down in the above rulings is quite correct but in the present case the real point for determination is as to whether the charge of absence without leave for a long period under the circumstance in this case constitutes misconduct. According to Standing Order 15(5) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, an employer can suspend a workman for a period not exceedings four days at a time and that the total period of such suspension shall not exceed four weeks except where the matter is pending before an Arbitrator, a Labour Court, Tribunal or Conciliator for the grant of permission under section 47 of the Industrial Relations Ordinance, 1969.
8. In the instant case I find that the total period of suspension exceeded four weeks, in view of the suspension order Exh. P. 10 and as such the suspension was clearly in violation of law. In other words the absence of the respondent during the period of suspension did not constitute misconduct, especially in view of the fact that he was advised by the Personnel Manager not to attend the duty during the period of suspension and that he would be informed about the future course of action through a letter.
9. In view of the above, the dismissal of the respondent on the charge of absence without leave for a long period was illegal and wrong.
10. I, accordingly, find no merit in this appeal, which is hereby dismissed. 1974 PLC Note 136 at p. 73 1974 PLC Note 48 at p. 26 1969 PLC 489 1969 PLC 8