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Appeal No. KAR.‑2 of 1977, heard on 8th February 1977.

Industrial Relations Ordinance (XXIII of 1969)‑----

-----S. 25‑A read with West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance (VI of 1968), S. O. 15‑Domestic enquiry‑Objection that accused workman was examined before evidence was tendered by Management neither raised in grievance notice nor in reply to show‑cause notice‑Such allegation made for first time in application under S. 25‑A cannot be given any considera tion.

A. Hafeez for Appellant.

S. P. Lodhi for Respondent.

Date of hearing : 8th February 1977.

This appeal has been filed against the order of the Labour Court setting aside the dismissal and ordering re‑instatement of the respondent with back benefits on the ground that the inquiry which was held was defective.

2. The respondent was in the permanent employment of the appellant. On account of some misconduct committed by him on 31st January, 1976, he was charge‑sheeted on 2nd February, 1976. He submitted his reply on 4th February, 1976. The explanation having been found unsatisfactory, inquiry was ordered. The Inquiry Officer held the inquiry and found the respondent guilty of the charge. On the basis of his report a show‑cause notice was sent to the respondent and thereafter he was dismissed from service. He served a grievance notice and approached the Labour Court.

3. Evidence was tendered by both the parties. On the assessment of the evidence the Labour Court came to the conclusion that the inquiry was defective inasmuch as the respondent was examined first before the witnesses of the appellant were examined and subsequently, the respondent was not allowed to cross‑examine the witnesses. On the basis of this finding he set aside the dismissal and ordered re‑instatement. Aggrieved by this, the present appeal had been filed.

4. On perusal of the record and proceedings and hearing the arguments I am unable to uphold the order passed by the Labour Court. Taking up the question of the denial of the opportunity to cross‑examine the witnesses, it was pointed out by the learned counsel for the appellant that no such allegation was made by the respondent either in the grievance notice or in the reply to the show‑cause notice or in the application made under section 25‑A, Industrial Relations Ordinance and, therefore, the allegation made for the first time in evidence was an afterthought. I am inclined to accept this contention. The learned Presiding Officer was not justified to consider this allegation having been made for the first time in evidence. I entirely agree with the contention raised on behalf of the appellant and reject the allegation relied upon by the learned Presiding Officer.

5. As regards the other ground that the respondent was examined before the evidence was tendered by the appellant, it has not been pleaded anywhere that any prejudice was caused. It may be a mere irregularity and not an illegality which may vitiate the domestic inquiry. The respondent had never protested before the Inquiry Officer in respect of the procedure adopted by him. Not only this, but even in the grievance petition or in the reply to the second show‑cause notice no such plea or grievance was agitated. This allegation was, for the first time, agitated in the application made under section 25‑A, Industrial Relations Ordinance and therefore, it was an afterthought and could not be given any consideration.

6. No other ground has been raised by either parties before me. In result I allow the appeal and set aside the order passed by the Labour Court. The application made under section 25‑A, Industrial Relations Ordi nance stands dismissed.

Appeal allowed.

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