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Appeal No. 185 of 1974, decided on 10th May 1975.

---Ss.25-A & 36-D--Re-instatement-Management failing to show that workman was properly charge-sheeted and enquiry proceedings were conducted in accordance with law -Opportunity to explain his position also not given to workman--Workman, in circumstances, held, entitled to back wages along with his re-instatement.

Yad Ullah Sheikh for Appellant.

Muhammad Siddique with Nazir Ahmed for Respondent.

The above-cited cross-appeals were filed by Rahim Bakhsh workman (Weaving Fitter) hereinafter called the appellant and the Managing Director, United Textile Mills, Fazalbad, Multan, hereinafter mentioned as the Management against the order of the learned Lower Court dated 18th January, 1974 Directing re-instatement of the appellant without awarding him back benefits. The appellant has moved this Court for the award of back benefits while the Management has appealed to get the impugned order set aside for lack of jurisdiction in the learned Loser Court to order re-instatement of the appellant. Both these appeals will be disposed of by this decision.

The appellant was charged with the misconduct of remaining absent from duty without leave from 10th September, 1972 to 20th September, 1972. A perusal of the record shows that the enquiry was held by the Management in absentia against the appellant without proper service of charge-sheet or show-cause notice. A perusal of the relevant papers of the domestic enquiry reveals that none of the notices exhibited as D.B, D.C, D.D and D.F, were properly served on the appellant. None of these notices bear the signature or the thumb-impression of the appellant nor any postal acknow ledgement receipt could fairly be connected with any such service. Consequently the appellant can fairly be held to have been prejudiced in the enquiry and could not be dismissed from service. Besides the fact could not be controverted on behalf of the Management that the appellant was arrested in connection with some false criminal case on 9th September, 1972, i.e. during the very days of his enquiry and there is no clear evidence in the enquiry proceeding that the appellant was out of judicial lock-up when the enquiry was conducted in absentia against him. It as further pertinent to note that the learned lower Court observed in the impugned order that the Management failed to show that the petitioner was properly charge sheeted and enquiry proceedings were conducted in accordance with law and that his services were arbitrarily terminated without observing the legal formalities, It was also observed that the Management had miserably failed to show that the appellant was at all given a fair opportunity to explain his position before the employer. Despite these observations the appellant was denied the back benefits alongwith his re-instatement without any reason whatsoever. Under such circumstances the back-benefits could not take it be withheld.

A preliminary objection was also raised on behalf of the Management that the original petition in the learned lower Court being accepted by the learned Junior Labour Court while its order dates 6th December, 1972 the same was set aside by the Punjab Labour Court No. 2, Lahore vide its order dated 21st July, 1973 by directing the return of the petition to the appellant for presentation to the proper forum which by the said date was the Junior Labour Court by virtue of an amendment in the relevant law effected subsequently to the first order made by that Court. The learned counsel argued that as the case was not remanded to the Junior Labour Court it could not take cognizance of the case by way of remand unless the petition was presented afresh before it by the appellant. But the fact could not be denied by the learned counsel that the case was treated as a remind case by the Junior Labour Court itself without any fault of the appellant who was called upon to prosecute his petition in the Court which left no room for him for any fresh presentation. Moreover it is also admitted that the Junior Labour Court vested with the powers to deal with the petition at the time when the order dated 21st July, 1973 was passed by the Punjab Labour Court. The appeal preferred by Rahim Bakhsh appellant does not fail on this ground too. The result is that appellant's appeal is accepted and that is that of the Management dismissed. Accordingly the workman appellant would be deemed to have been re-instated in service with back benefits and the impugned order.

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