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Appeal No. RY Khan‑351 of 1983, decided on 29th February, 1984.

‑‑ S. 38 ‑ Powers of Tribunal‑Cannot review its order‑Appeal dismissed in default‑Restored on grounds that Advocate was busy elsewhere‑‑Restoration challenged on plea that ground was not sufficient‑Plea, held, though correct Tribunal refusing to entertain same for reasons that it had no powers of review‑[P L D 1972 Lah. 603 held not applicable].

P L D 1972 Lah. 603 held not applicable.

‑‑ Ss. 25‑A and 38(3)‑Grievance petition against dismissal for misconduct‑Enquiry found faulty‑Labour Court, in circum stances, held, had discretion to permit employer to conduct fresh enquiry‑Labour Court awarding reinstatement and permitting fresh enquiry and making back benefits dependent upon result thereof and further observing that in case no fresh enquiry, held workman would not be entitled to back benefits‑Held: An exercise of discretion cannot be interfered with‑Appellate Tribunal dis missing appeal.

Asmat Kamal for Appellant.

Saleem Baig for Respondent.

Date of hearing : 27th February, 1984.

The above‑captioned appeal arises from the decision, dated 26th May, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the appellant was directed to be rein stated in service and the respondent was permitted to hold fresh enquiry. So far as back benefits are concerned, it was directed that they would depend upon the result of fresh enquiry, if the same was held. It was further observed that if no fresh enquiry was held, the appellant would not be entitled to back benefits.

2. The appellant's claim is that back benefits should have been allowed unconditionally and that fresh enquiry should not have been permitted.

3. The allegations against the appellant were that he made interpo lation in his leave application, after it was sanctioned, by changing the period of leave applied for from 3 days to 33 days and that he was absent for more than ten days. The report of the first enquiry was in favour of the appellant but the employer did not agree and ordered fresh enquiry in which the appellant was found guilty of making interpolation in the leave application. However, he was not found guilty of the allegation of remaining absent for more than ten days.

4. Learned counsel for the respondent has argued that the appeal was time‑barred. This is not so. The date of the decision of the learned lower Court is 26th May, 1983. On the same day the appellant applied for copy. Copy was delivered on Ist June, 1983. The appeal was presented on 2nd d July, 1983. Excluding the date of 1st June, 1983 on which date copy was delivered, the appeal should have been presented on 1st July, 1983 but it was Friday, so it was rightly presented on 2nd July, 1983 and is not time‑barred.

5. The other point raised by the learned counsel for the respondent is that the appeal was dismissed in default before it was admitted and could not be restored as the reason given was not sufficient. It was dis missed in default on 7th September, 1983 but the learned counsel for the appellant gave the ground that he was busy before the Labour Court, Gujranwala on 8th September, 1983. This is true that the ground given was not correct but I do not have power of review. Learned counsel has cited P L D 1972 Lah. 603 but the same is not germane to the question raised by the learned counsel. It has been observed that when the Rent Controller has adopted a procedure to dismiss a petition in default for which there was no provision in the Rent Restriction Ordinance, it could adopt the procedure to restore it if sufficient cause for non‑appearance was shown. Here this is not the case. The appeal was dismissed in default and adopting the procedure it was restored. Now recalling of the orders of restoration would not amount to adopting the same procedure, but would amount to reviewing the order.

6. So far as the merits of the case are concerned, it was the discre tion of the learned Presiding Officer to permit fresh enquiry or not. An exercise of discretion cannot be interfered with. The appellant does not say that there was no flaw in the previous enquiry. So far as back benefits are concerned, the order that it would depend on the result of the enquiry is just and proper. The discretion is that if enquiry is not held, the appellant would not be entitled to back benefits goes in his benefit, for if fresh enquiry is held, it may result in his dismissal again and if it is not held, the order of reinstatement will be final. Learned counsel for the respondent says that enquiry was properly held, so the appellant should not have been reinstated. There is no cross appeal, so the learned counsel cannot challenge the direction of reinstatement.

7. As a result the appeal is dismissed.

A.E.

Appeal dismissed.

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