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Order on the Reference No. PO/SLC/VII/169/81, dated 8th September, 1981, decided on 10th December, 1981.

‑‑ Ss. 25,A & 38 (5)‑Domestic enquiry found not in accordance with law‑Dismissal order set aside by Labour Court‑Appellate Tribunal upholding order of Labour Court but giving option to Management to hold fresh enquiry and making award of back benefits dependent upon result of fresh enquiry‑Management, in, circumstances, held, could make a penalty order validly on basis of'"" result of fresh enquiry‑Re‑passing dismissal order on basis of result of fresh enquiry if misconduct established, held, involved no' defiance or violation of earlier order of Appellate Tribunal amounting to contempt ‑Reference from Labour Court for taking contempt proceedings, in circumstances, rejected by Appellate Tribunal.

Date of hearing: 10th December, 1981.

This is a request from the learned Presiding Officer, Sind Labour Court No. VII at Sukkur requesting that contempt proceeding under section 38 (5), I. R. O., may be taken against the respondent, the Deputy Manager, Workshop Equipment, M. C. P. Workshop, Sukkur, who had dismissed workman Ayaz Hussain, in contravention of the directions given by this Tribunal in Appeal No. SUK‑226 of 1980.

2. It may be stated that workman Ayaz Hussain, employed as Battery‑man in the M. C. P. Workshop at Sukkur, was dismissed from service, vide order of the Manager (Workshop), on the charge of miscon duct in that he had assaulted and maltreated Head Clerk Ahmed Ali Shah of the M. C. P. Workshop Ayaz Hussain challenged the orders of his dismissal before the learned Seventh Labour Court at Sukkur which set aside the orders of his dismissal directing the M. C. P. Workshop to reinstate him with full back benefits. On appeal this Tribunal agreed with the finding of the learned Labour Court that the domestic enquiry on the basis of which workman Ayaz Hussain was dismissed was not in accordance with law, and, accordingly, the dismissal orders in respect of the workman, based on such enquiry, could not be maintained. This Tribunal, by its order, dated 4th February, 1981, accordingly upheld the order of the learned VII Labour Court directing the reinstate ment of workman Ayaz Hussain but gave option to the M. C. P. Work shop to hold a fresh enquiry against the workman and explicitly made the award of the back benefits to the workman dependent upon the result of that enquiry. Reliance was placed on the then latest decision on that point by a Division Bench of the Karachi High Court in the case of Muhammad Shah v. Dawood Cotton Mills Ltd., Constitutional Petition No. D‑804, decided on 15th May, 1979. In that case, the Labour Appel late Tribunal, as in the present case had set aside the order of dismissal of workman and had directed his reinstatement in service but had given an option to the management to hold a fresh enquiry against the work man and made the award of back benefits dependent upon such enquiry. The High Court, while agreeing with the view taken by this Tribunal, observed that as the enquiry conducted against the workman was not fair the evidence recorded during the enquiry proceeding could not be relied upon, that being so, it could not, therefore, be said that the peti tioner was absolved of the charge altogether and thus if the same set of evidence could not be used for the purpose of awarding punishment it could equally not be utilized for awarding back benefits to the petitioner I would like further to add that since the workman was not absolved of the charge altogether and fresh enquiry was specifically permitted by this Tribunal it was open for the management, in case, in the fresh enquiry the charge of misconduct was duly established against the workman, not only to deny him back benefits but also to dismiss him or award him other punishment as prescribed by law. In the case of Islamabad Club v. Punjab Labour Court No. 11(P L D 1980 S C 307), the Supreme Court, while upholding the decision of the High Court that the employee was not given notice of some of the acts of misconduct for which he was dismissed from service, observed as follows:‑

"If the authorities of the Islamabad Club are still anxious to pursue the matter, it would clearly be open to them to resume the proceed ings by furnishing a copy of the enquiry report to the respondent and giving him a reasonable opportunity to show cause against the proposed order of dismissal on the grounds found against the respondent by the Enquiry Officer."

3. Since the mere setting aside of an order of an employee by reason of a technical or legal default in the enquiry proceedings does not absolve the employee from the charges of misconduct, which could validly be made the basis of the dismissal of the employee upon a proper enquiry, if a fresh enquiry is permitted by the Court, there is no reason, if the misconduct of the employee is fairly established in the fresh enquiry, that the employee should not be dismissed from service.

4. It is not clear either from the decision of the learned Labour Court, given on 22nd November, 1981, or the reference made to this Tribunal on what grounds the learned Labour Court has held that the respondent Deputy Manager Workshop was not competent to dismiss workman Ayaz Hussain on the basis of a fresh enquiry, but if, as it appears, the assumption of the learned Labour Court was that the dis missal of the workman was in contravention of the order, dated 4th February, 1981. or was in defiance or in violation of that order, the assumption is clearly incorrect, for the option to hold a fresh enquiry included the ability on the part of the management to dismiss the workman if in the fresh enquiry his misconduct was duly established.

5. For the above reasons I am of the view that prima facie no contempt appears to have been committed by the respondent Deputy Manager and would, accordingly, reject the reference for taking contempt proceedings against him.

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