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Appeal No. KAR‑169 1977, heard on 23rd July 1977.

-----S. 36‑Adjudication by Labour Court‑Conclusions must be based upon evidence and not on mere conjecture.

‑---Dismissal for misconduct‑Second show‑cause notice served after date of dismissal order‑Inquiry report not supplied to accused --Dismissal order, in circumstances, held, not sustainable‑Re‑instatement with full back benefits upheld‑Management, however, at liberty to serve second show‑cause notice with inquiry report and take any action according to law.

Zamirul Hasan for Appellant.

S. M. Kohlstani for Respondent.

Date of hearing : 23rd July 1977.

This is an appeal against the order of the Labour Court ordering re instatement of the respondent on an application made under section 25‑A, Industrial Relations Ordinance.

2. The respondent was in the permanent employment of the appellant. On 12th July, 1976 he was served with charge‑sheet dated 10th July, 1976 to the effect that on 10th July, 1976 he had refused to obey the orders of the superiors and had abused Anis, Cotton Clerk as well as the Management and instigated the workers in order to create enmity between Patbans, Sindhis and Punjabis. He tried to beat Anis but he was prevented on account of the intervention of other workers. The respondent submitted his explanation denying the various allegations. An Inquiry Officer was appointed. After holding inquiry the respondent was found guilty and was dismissed from service. He served a grievance notice and approached the Labour Court. The application was opposed and a few pleas were taken.

3. On the assessment of the evidence the Labour Court set aside the order of dismissal on two grounds. The first ground stated by him was that the charge‑sheet indicated that the respondent had refused to obey the lawful orders of the superiors and it was only in evidence that they disclosed that the word, "superior officers" referred to the Excise Officers. So in this connection, the learned Presiding Officer observed that this admission made by the witness went to show that the inquiry proceeding were nothing but farce to punish the respondent who had incurred displeasure of the Excise Officials and who were purposely not associated in the inquiry proceedings. The second ground which found favour with the learned Presiding officer was that the respondent was dismissed from service before the service of second show‑cause notice.

4. Against the aforesaid decision, the present appeal had been filed.

5. On perusal of the record and proceedings and hearing the arguments I must say that the observation of the learned Presiding Officer that the Excise Officials were behind the curtain is based on mere conjectures and there was no evidence to support it. He was not justified to draw the conclusion simply from the fact that in the charge‑sheet the expression, "superior officers" was used. There ought to be evidence to arrive at a conclusion.

6. Apart from this, there were other allegations made in the charge‑sheet and the learned Presiding Officer did not take care to pay attention to those allegations in order to see whether those allegations were supported by the evidence on record of the inquiry conducted by the Inquiry Officer. On this ground also the order of the learned Presiding Officer suffers from serious infirmity.

7. So far the second ground is concerned I entirely agree with the learned Presiding Officer that the respondent was dismissed from service without service of second show‑cause notice as the show‑cause notice was despatched on 13th August, 1976 while the dismissal letter dated 11‑8‑76 was also issued on 13th August, 1976. Another fact which has come to light is that the inquiry report was also not served upon the respondent. So I am in complete agreement with the learned Presiding Officer that this ground vitiated the action of dismissal which was taken against the respondent.

8. In view of my findings with regard to the second show‑cause notice and inquiry report I dismiss the appeal. It is, however, open to the appellant to issue a fresh second show‑cause notice along with the inquiry report and serve them upon the respondent and take such action as may be deemed fit in accordance with law. It may also be made clear that in case the respondent is again dismissed from service or any other action is taken against him, he shall be entitled to approach the Labour Court under section 25‑A, Industrial Relations Ordinance raising all the, pleas which may be available to him.

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