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--‑‑ Ss. 25‑A & 37‑Grievance petition against dismissal due to misconduct‑Contention that enquiry not held impartially‑Em ployer failing to produce Enquiry Report and enquiry proceedings on file of Labour Court‑Labour Court, in circumstances, held, justified in awarding re‑instatement to petitioner workman‑Re instatement being due to technical grounds back benefits dis allowed.

A. R. Sheikh for Appellant.

Munawar Ahmad Javed for Respondent.

Date of hearing ‑ 24th February, 1982.

This appeal arises from the decision dated 19th July, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, whereby the grievance petition of the respondent was accepted and he was directed to be re‑instated with back benefits.

2. The facts giving rise to ‑this appeal are that the respondent was employed as Peon/Chowkidar in Habib Bank Limited, Faisalabad. He was charge‑sheeted for remaining absent. An enquiry was held against him, which culminated in his dismissal vide order dated 25th October, 1978. The grounds on which the respondent challenged the order of his dismissal were that an application for the registration of the union was pending, but in spite of it no permission was obtained from the Registrar before dismissing him and that the Enquiry Officer was not impartial in conducting the enquiry against him. On the other hand on behalf of the appellant it was contended that the respondent was not a workman and thus could not invoke the provisions of section 25‑A of the Industrial Relations Ordinance, 1969. It was also contended that no grievance notice was served.

3. By the evidence of Mr. Abdur Rashid 'Azhar, Superintendent, Labour Department, it stands proved that the registration certificate issued on 26th June, 1978 was withdrawn by the Registrar on 2nd July, 1978 under the orders of the Additional Civil Judge, Faisalabad and. that since the Additional District and Sessions Judge ordered the maintenance of status quo the union had not yet been registered. The appellant did not produce any evidence ‑to the effect that the application of the union had either been decided before the dismissal order was passed‑ or had been given thereafter. The evidence produced by the respondent to the effect that tile order of registration was withdrawn by the Registrar and no fresh order had been passed on order issued by the Additional District and Sessions Judge stands un rebutted. The petition, therefore, was pending at the time the respondent was dismissed. It was, therefore, necessary to get permission from the Registrar under section 8-A of the Industrial Relations Ordinance, 1969 for dismissing the respondent. Since it was not done, the order of dismissal was not valid and was rightly struck down by the learned lower Court.

4. The other ground given by the learned trial Judge for setting aside the dismissal order is also cogent which is that there is no Enquiry Report and the proceedings on the file of the Court. This is all the most neces sary, because there is no provision that second show‑cause notice or copy of the report of the Enquiry Officer be delivered to the workman concerned before passing the dismissal order. Without the proceedings and the report the workman is not in a position to show to the Court that the enquiry was not properly made. Where the employer runs the risk of not bringing on the record enquiry proceedings and the enquiry report, tie cannot successfully maintain the order of dismissal. The learned lower Court, therefore rightly directed the re‑instatement of the respondent but since on technical grounds the respondent succeeded, he was not entitled to back benefits. 1, therefore, partly accept the appeal and maintain in the order of re‑instatement, modify the impugned decision to the extent o disallowing back benefits.

Present Muhammad Ajmal, Law Officer and Mr. Munawar Ahmad Javed, Advocate for the respondent.

Appeal party accepted.

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