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Appeal No. IG‑139 of 1981/Pb., decided on 16th February, 1983.

(a) Industrial dispute‑

‑‑Charge‑sheet‑Cannot be served by Enquiry Officer‑Enquiry cannot be held without considering explanation of accused' by authority serving charge‑sheet‑‑Accused facing enquiry for allega tion of misbehaviour‑Enquiry officer serving another charge‑sheet for misconduct of misbehaviour‑Such charge‑sheet, held, not served competently.

(b) Industrial Relations Ordinance (XXIII of 1969)‑--

--‑‑Ss. 25‑A & 37‑Re‑instatement‑Back benefits‑Re‑instatement awarded on technical defects in enquiry‑Order about back benefits should be passed by Labour Court‑Labour Court failing to pass any order ‑ Appellate Tribunal making back benefits dependent upon result of fresh enquiry.

(c) Industrial Relations Ordinance (XXIII of 1969)‑---

--‑‑S. 25‑A‑Grievance petition‑Maintainable to seek remedy of enforcement of guaranteed right‑Procedure of enquiry laid down in Wage Commission Award‑Guaranteed right‑Grievance petition of Bank employee against penalty imposed without following such procedure, held, maintainable‑Wage Commission Award, Paras. 258 (4) & (5).

(d) Industrial Relations Ordinance (XXIII of 1969)‑---

--‑‑S. 25‑A‑‑Grievance petition‑Bringing departmental appeal -Not essential before making petition.

Mian Abdul Latif for Appellant.

Mian Muhammad Yasin for Respondents.

Dates of hearing : 9th and 16th February, 1983.

JUDGEMENT

This appeal arises from the decision dated 4th March, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad, whereby the appellant was directed to be reinstated in service without back benefits and the respondent was allowed to hold fresh enquiry regarding charge‑sheet Exh. P‑2 dated 6th May, 1979. On behalf of the respondent cross‑objections have been filed, which are being disposed of alongwith the appeal through this single judgment.

2. The allegations against the appellant were that he,‑ was a habi tual late comer and had come late on 6th May, 1979 also and when was enquired about it, he became rude to his boss and misbehaved. The Enquiry Officer delivered to him fresh charge‑sheet Exh. P. 4 on 30th May, 1979 and held enquiry regarding the same. Exh. P‑4 contains more charges than the one given in Exh. P‑2. Needless to say that an Enquiry Officer is not competent to charge‑sheet an employee but has to hold enquiry regarding the allegations for which the competent authority has charge‑sheeted a person. Enquiry can be ordered only after considering the reply to the charges. The learned lower Court was, therefore; right in directing the reinstatement of the appellant. Since the charge of mis behaviour was also against the appellant, re‑enquiry was rightly allowed. If a subordinate who misbehaves before his boss is let off, it will become impossible to control and get work from the sub ordinates.

3. However, some order regarding back benefits should have been recorded, such as that the entitlement to the same would depend upon the result of the fresh enquiry, because if the appellant is again dismissed after fresh enquiry and the Labour Court again directs his reinstatement, back benefits for the second reinstatement would be allowed and not for the previous dismissal.

4. So far as cross‑objections are concerned, this argument is without force that there was no right guaranteed, to the appellant. Paras. 258 (4) C and (5) of the Wage Commission Award prescribe a procedure of enquiry which was not followed by the Enquiry Officer so far as charges contained in Exh. P‑2 are concerned.

5. Objection about grievance notice cannot be raised in cross‑objections as its receipt was admitted in the written statement, wherein no objection was raised that it was given by the lawyer.

6. Bringing of departmental appeal is not a roust before making petition under section 25‑A. Sections 15 and 53 of the Relations Ordinance, 1969 deal with criminal liability. On the basis of victimization petition under section 25‑A can be brought.

7. In reply to the charge‑sheet dated 6th May, 1979 admission of all the charges was not made. No reply to the allegation that he was in the habit of coming late and bad come late on 6th May, 1979 was given. So holding of enquiry under para. 258 of the Wage Commission Award was necessary.

8. As a result of the observations made above, I partly accept the appeal and modify the impugned decision of the learned lower Court by adding that the question of entitlement to back benefits will depend upon the result of the fresh enquiry. There is no force in the cross‑objections which, therefore, are dismissed.

A.E. Appeal accepted.

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