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Appeal No. MN‑594 of 1982, decided on 13th August, 1983.

‑‑ Ss. 25‑A & 38(3)‑Grievance petition against dismissal from service‑Scope‑Labour Court and Appellate Tribunal cannot sit as appellate authority over order of employer‑Railway employee convicted by criminal Court and sentenced to fine and imprison ment ‑ Offence neither connected with Railway working nor involving moral turpitude ‑ Dismissed from service for same reason‑Labour Court accepting grievance petition and awarding re‑instatement on grounds that impugned order passed without observing formality of charge‑sheet and enquiry‑Rules authorising competent authority to impose any penalty in such cases without such formalities or to impose no penalty at all ‑Order of Labour Court, in circumstances, set aside by Labour Appellate Tribunal and case remanded to competent authority to reconsider and see if ends of justice could be met by taking a lenient view for imposing any lesser penalty‑Pakistan Railways Personnel Manual, r.

Kh. Tariq Masood for Respondent.

Date of hearing : 9th August, 1983,

The above‑captioned appeal calls in question the decision, dated 22nd September, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad, whereby the respondent was directed to be re‑instated in service without back benefits.

2. The respondent was a gangman. He was convicted and sentenced to three years' R. I. and a fine of Rs. 1,000 under section 325/34, P. P. C. on 21st January, 1980. On appeal the punishment was reduced to two years. The respondent was released from the jail after serving out the sentence and reported on duty, but learnt that he had already been dismissed.

3. Admittedly the respondent was not charge‑sheeted, nor any enquiry was held. Rule 762 of Personnel Manual has been cited which no doubt, says that without observing the formalities laid down in the rules, an employee convicted and sentenced by a criminal or Court Martial can be dismissed. But at the same time it is mentioned that extreme penalty must not be necessarily imposed. It is further provided that when the offence does not involve moral turpitude or is not connected with Railway working, the competent authority is free to take a decision in view of the nature of the offence and impose a lesser penalty or no penalty. Since the offence committed did not involve moral turpitude, nor embezzlement of railway funds, the punishment of dismissal was not called for. This is true that the authority has power to dismiss, yet in view of the instructions given in rule 762 lenient view should have been taken particularly when only in view of the conviction by the criminal Court penalty was imposed without affo‑ding opportunity to the respondent to defend himself. The effenee was committed by the respondent but his dependants have also been punished by putting their means of livelihood to end. Since the respondent was dismissed, he stood debarred from being employed elsewhere. '

4. But at the same time the order of un‑conditional re‑instatement passed by the learned lower Court is not maintainable. Since the authority was competent to impose any punishment without observing the formalities of charge‑sheeting and holding of enquiry etc., the order of dismissal was not illegal. As Labour Courts and this Tribunal cannot sit as appellate authority over the order of the employer, I have no jurisdiction to reduce the punishment or substitute another kind of punishment. So keeping in view the law and all the circumstances of the case, I accepting the appeal and setting aside the impugned decision of the learned lower Court and of the authority, remand the case to the competent authority that passed the order of dismissal to reconsider the case to see if ends of justice can be met by taking a lenient view of the matter.

A. E‑ Appeal accepted.

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