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--‑‑Domestic enquiry‑Prejudice to accused‑Statement of accused recorded prior to prosecution evidence‑Accused not asked whether he wanted to produce defence after conclusion of prosecution evi dence‑Accused, in circumstances, prejudiced in defence‑Ultimate penalty order of termination of service, in circumstances, held, rightly set aside by Labour Court‑Re‑instatement having ‑been ordered due to technical defect, refusal of back benefits by Labour Court upheld by Appellate Tribunal‑Industrial Relations Ordi nance (XXIII of 1969), Ss. 25‑A & 37.

Mian Abdur Rashid for Appellant.

M. A. Hamid Awan for Respondent.

Date of hearing : 17th February, 1982.

The above captioned two appeals arise from the decision dated 15th November, 1978 passed by, the learned Presiding Officer, Punjab Labour Court No. 3, 4ahore at Ferozewala, whereby the grievance petition of Muhammad Ramzan was accepted and he was directed to be re‑instated in service without back benefits.

2. The Management has challenged the order of re‑instatement whereas Muhammad Ramzan claims that he could have been re‑instated with back. benefits, In this judgment Habib Bank will be described as the appellant and Muhammad Ramzan as the respondent and since the two appeals arise from the same decision, they will be disposed off together through this single judgment. The respondent was a Peon in the appellant Bank in Sangla Hill Branch and on the allegation of stealing a parcel from the strong room, be was charge sheeted, on enquiry held against him and he was ultimately dismis sed from service vide order dated 9th August, 1975.

3. Learned counsel for the appellant has argued that the lower Court is wrong in saying that the Wage Commission Award applies to the case, according to which, the charge‑sheet is to be delivered and order of enquiry passed by the competent authority. He says that Standing Orders Ordinance applies and as there is no provision in the said. Standing Orders Ordinance that only an employer can "issue" charge sheet, the charge‑sheet was given, and enquiry order was passed by the Manager correctly.

4. The argument of the learned counsel that Wage Commission Award is not applicable is wrong. He wrongly says that the Award was notified in June, 1976. It was notified in the Ministry of Finance notification No. SLO/1384 (1)/74 in November, 1974 and according to paragraph 302, its decision came into effect from 1st January, 1976. The charge‑sheet was given to the respondent on 10th March, 1975 i. e. after the Wage Commission Award had become effective, so the provisions of Wage Commission Award apply and charge sheet can be initiated and enquiry can be made according to it. Even if it be said that the Wage Commission Award is not applicable and that Standing Orders Ordinance applies to it whether there is no force in the argument of the learned counsel for the appellant that the charge sheet was not to be necessarily given by the employer himself. The learned counsel says that prior approval of the employer for dismissing an employee is necessary, according to Standing Order 15 (4) and not that the charge‑sheet should be given by the employer. If this argument is accepted it would mean that anybody, he may be a Clerk or a worker can give charge‑sheet and press order for holding enquiry, but it does not appear to be the intention of the law. The employer should issue the charge‑sheet himself, consider the reply and to decide whether the enquiry be held or not. Not only that the charge‑sheet was given by the Manager even the Enquiry Officer was appointed by the same authority. Only the employer was competent to appoint Enquiry Officer, to charge sheet and issue the enquiry notice to the respondent.

5. Even the second show‑cause notice was given by the Manager and not by the Zonal Chief. The statement of the respondent first of all was recorded by the Enquiry Officer and thereafter prosecution evidence was recorded. Learned counsel says that it ‑was not shown,4 by the respondent that on account of recording his statement before the hearing of prosecution witnesses, he was prejudiced, therefore, the irregularities were not fatal to the case. I do not find any force in the argument of the learned counsel. By recording the statement of the respondent before recording the prosecution evidence, the defence of the respondent was disclosed and there was oppor tunity for the appellant to meet the defence by prosecution evidence and in this manner the respondent was prejudiced. The learned counsel has argued that the deference of au employee cannot remain secret because in answer to the charge sheet he has to disclose his defence. This is also wrong. It is not necessary for the employee concerned to disclose his defence in answer to the charge‑sheet and he can give answer without disclosing his defence. He can straight away deny the charge levelled against him in the charge‑sheet. Opportunity for the production of defence was also not afforded to the respondent. In the statement of the respondent which was recorded before starting the prosecution evidence it was enquired from him whether he wanted to produce defence and the respondent replied in negative. Since by that time prosecution evidence had not been recorded, there was no occasion for the respondent to decide whether he may or may not produce any defence. After the conclusion of the prosecution evidence, the statement of the respondent was not recorded, nor he enquired whether he wanted to produce defence or not, so opportunity of production of defence was not afforded to the respondent.

6. For the reasons given above I hold that the learned lower Court was justified in setting aside the dismissal order and directing the reinstatement of the respondent. Likewise there is no force in the appeal of the respondent, whereby he challenged the order of the Lower Court to the extent it did not allow back benefits to him. The order of re‑instatement was made on the ground of technical defect and not that the charge was not proved at the enquiry the Lower Court bad found that either the allegation made against the respondent did not amount to misconduct of that the allega tion s had not been proved, of course, the respondent would have been entitled to back benefits, also besides the direction of reinstate ment.

7. The upshot of the above discussion is that both the appeals are without force and are, therefore, dismissed.

Appeal dismissed.

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