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Appeal No. LHR‑167 of 1981, decided on 6th December, 1982.

‑‑-Domestic enquiry ‑ Non‑service of charge‑sheet and enquiry notice‑Not merely a technical defect‑Labour Court accepting grievance petition against dismissal from service on grounds that service of charge‑sheet and enquiry notice upon accused not proved‑Back benefits not allowed by Labour Court observing that petition accepted on account of technical defect‑Such lapses, held, not merely a technical defect but going to root of case hence order of Labour Court modified and back benefits allowed by Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3).

Khalid Farooq for Appellant.

Asghar Mahmood for Respondent.

Date of hearing: 28th November, 1982.

This appeal is directed against the decision, dated 26th February, 1981 passed by the learned Presiding Officer, Labour Court No. 2, Lahore, whereby the grievance petition of the appellant for his re‑instatement was accepted without back benefits. The appellant has in this appeal claimed back benefits and has challenged tile order of the lower Court to this extent.

2. The learned lower Court disallowed back benefits on the ground that the appellant had succeeded on account of technical defects only, The case of the respondent was that charge‑sheet and inquiry notice were sent to the appellant by registered post where as the contention of the latter was that he did not receive the said and, therefore, could not parti cipate in the inquiry. No postal or A/D receipt were produced by the respondent to prove the service of the charge‑sheet and inquiry notice. There were not merely technical defect but went to the root of the case. No valid inquiry could be held without considering the reply of the charge sheet. Since the charge‑sheet was not served the appellant could not submit the reply. He was condemned unheard. In these circumstances he was entitled to back benefits.

3. Learned counsel for the respondent has raised question of territo rial jurisdiction. No such point was raised in the written statement, there fore, the parties could not produce evidence nor the learned lower Court could express its opinion on the point. For the first time such a point has been raised during the argument of the appeal.

4. As a result of the discussion made above I accept the appeal and modify the order of the lower Court allowing the back benefits to the appellant.

A. E. Appeal accepted.

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