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Appeal No. LHR‑173 of 1982, decided on 26th September, 1983.

‑‑‑ Misconduct‑Refusal to obey order of superior‑Workman refusing to do a work as ordered‑Apology that on return from sick leave had not fully recovered from illness‑Held : no sufficient ground because workman on return from sick leave must have been declared by doctor as fit for duty.

Ss. 25‑A & 38 (3)‑Dismissal for misconduct‑Impugned order passed by person not competent to do so and also himself a com plainant‑Fabricated documents produced in Court to cover illegality of passing impugned order by incompetent authority‑Impugned order set aside by Appellate Tribunal and request for remanding case to employer for re‑decision by competent authority, in circum stances, refused because of not coming to Court with clean hands.

1981 S C M R 429 ref.

Saleem Baig for Appellant.

Ch. Sadiq Muhammad Warraich for Respondent.

Date of hearing : 26th September, 1983.

The appeal captioned‑above emerges from the decision, dated 9th March, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the respondent was directed to be reinstated in service with back benefits.

2. The allegation against the respondent was that he had refused to obey the order of Foundry Manager by refusing to fix planks in the pattern stores. The respondent admitted to reply to the charge‑sheet to have refused to fix the wooden planxs. He put forward two apologies which are that he had not fully recovered from illness and that he was a pattern maker but was asked to work as cabinet‑maker. The learned lower Court has rightly held that refusal to fix planks was unjustified. Since the res pondent had returned from sick leave, he must have been declared by the doctor as fit for duty, so this is wrong that due to illness he refused to do the work entrusted to him. Since it was the first day of his resuming) duty, so there may not be available the work of pattern making, so he was asked to fix the planks. It has been argued that he had been trans ferred from the post of pattern‑maker, so his duty was to work as cabinet maker but there is no evidence on this point. If the plea of the respon dent had been that he did not know the art of fixing of planks, of course, it could have been a proper apology but this is not the case of the respon dent. So, the refusal was not justified.

3. This finding of the learned lower Court is also correct that letter Exh. R‑7 was the outcome of after thought. Exh. R‑7 shows that the Managing Director had decided to dismiss the respondent and he asked Mr. Lutter to sign the dismissal letter. No such position was taken in the written statement. Rather therein it was contended that a higher autho rity had taken decision and Mr. Lutter had only signed the dismissal letter. Name of the higher authority was not disclosed. It is clear that till the Exh. R‑7 had not come into existence, otherwise it would have .been contended that the Managing Director had taken the decision. This is noteworthy that letter Exh. R‑7 was not sent in routine by registered post but through a special messenger as is mentioned in Exh. R‑7. No reasons is given for this. Since Exh. R‑7 hid been proposed long after dismissing the respondent, therefore, to avoid the recording date of registered post, it was shown to have been sent through special messenger. Again no number of the despatch and receipt register is given meaning thereby that neither it was entered in despatch register of the office of issue, nor in the receipt register of Factory Manager. It could not be entered in back date, therefore, it was not entered in the above‑mentioned registers. The learned lower Court has, therefore, rightly held that Exh. R‑7 is a fabri cated piece of evidence. While delegating the powers of the Factory Manager to Mr. Lutter to act as such in the temporary absence of the Fac tory Manager, no power to dismiss the employees was given, so the dismis sal order signed by Mr. Lutter was of no legal value. Moreover, Mr. Lutter being the complainant and witness could not be the judge in his own cause. It could not be expected from him that he while considering the case he would have liked to discredit his evidence. The respondent was, therefore, highly prejudiced.

4. Learned counsel for the appellant has argued that the case can be remanded to the appellant for the decision by the competent authority if i is held that Exh. R‑7 is not a reliable document. He has cited 1981 S C M R 429. No doubt it has been observed that the decision will not be an impediment in taking legal steps against the employee in accordance with law but the present case is of quite a different nature. If no attempt had been made to deceive the Courts by manufacturing Exh. R‑7, of course, the appellant may have been allowed to get the matter decided by a com petent authority. Now when it is clear that the appellant did not come to the Court to contest the petition with clean hands and went to the extent of fabricating false documents, it cannot ask for redecision of the matter. Exh. R‑7 is signed by the Managing Director meaning that he is the competent authority. Can it do expected from him that he after fabricating Exh.. 7, would be justice to the respondent It is difficult to gave the answer in affirmative. Under the peculiar circumstances of the case I cannot concede to the request of allowing the appellant to redecide the matter. However, I find sufficient force in the contention that as only on a technical point the respondent has been reinstated, he was not entitled to back benefits.

5. As upshot of the observation made above, I partly accept the appeal and modify the impugned decision of the learned lower Court by disallowing back benefits to the respondent.

A. E. Appeal partly accepted.

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