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(a) Factories Act (XXV of 1934)‑‑-

--‑‑Ss. 9 & 10 (5)‑Appointment of Manager‑Information to Inspector of Factories‑Failure to send such information may amount to offence but does not render such appointment as illegal -Service of charge‑sheet and order of dismissal of workman on account of his misconduct passed by Manager challenged on plea that such Manager was not competent to do so because information regarding his appointment not conveyed to Inspector of Factories- Plea rejected.

(b) Industrial dispute‑---

----Domestic enquiry-Defence evidence neither considered nor discussed by Enquiry Officer‑Effect-Workman charged for resorting to strike‑Evidence of his supervisor indicating that work could not be started because of defect in machines and accused with such supervisor (witness) remained repairing such machines and work started after repair of machines‑Such evidence ignored by Enquiry Officer while holding accused guilty of charge‑In view of such evidence charge, held, would not stand proved‑Decision of Labour Court dismissing grievance petition against dismissal from service based upon findings of such enquiry, in circumstances, set aside by Appellate Tribunal and workman awarded re‑instatement with 5 % back benefits‑Industrial Relations Ordinance (XXIII of ' 1969), Ss. 25‑A & 37.

Anwar Ali for Appellant.

Mian Muhammad Yasin for Respondent.

Date of hearing : 12th March, 1983..

This appeal emanates from the decision dated 26‑5‑1982 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

2. The allegation against the appellant was that he had instigated the workers to go on strike and himself too went on strike. It has been argued by the learned counsel for the appellant that the Personnel Manager was not competent to charge‑sheet and dismiss the appellant, because his appointment was not brought to the notice of the Inspector of Factories. who was, according to section 10 (5) of the Factories Act, the District Magistrate and instead the information was sent to the Zonal Director. Section 9 of the Factories Act doer, not say that if the Inspector of Factories has not been informed about the appointment of Manager, his appointment is illegal. If compliance of section 9 was not made, it may amount to some offence but the appointment of the Manager does not stand vitiated, nor he is debarred from functioning as such.

3. The other point raised by the learned counsel for the appellant is that Enquiry Officer was an interested person as his duty. was to hold enquiries. The Officer who held the enquiry is not by designation Enquiry Officer and has not been employed only for making enquiries, so the argument has no force. Moreover, no objection was raised during the enquiry, nor any application was given for his substitution. Now it is too late for the appellant to raise such an objection.

4. The last argument of the learned counsel, however, is not without force. The Enquiry Officer did not consider and discuss the defence evidence. D.W. 2 was the supervisor of the shop where the appellant was posted. He deposed during the enquiry that the machine of the appellant had gone out of order and that he and the appellant had been repairing it, till the closing time on the day of strike. He was the incharge of the appellant. It was not shown that he had motive to depose against the Management, therefore, there appears to be no reason to discard the evidence of D.W. 2. Learned counsel for the respondent has argued that D.W. 2 admitted that, some machines had started work on the day of strike late. If in reality certain machines started functioning late, it does not mean that the appellant had either instigated the workers or he himself went on strike. Since he had been with D.W. 2 repairing his machine, he remained present on duty. So it does not stand proved beyond any shadow of doubt that the appellant had committed the offence charged with.

5. As upshot of the observations made above, I accept the appeal, set aside the decision of the learned lower Court and accepting the grievance petition of the appellant direct his re‑instatement in service. He is allowed 5% back benefits.

Appeal accepted.

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