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Appeal No. M1‑566 of 1981, decided on 18th May, 1982.

‑‑ S. O. 15 (4)‑ Communication of charge‑ Limitation of 30 days‑Begins from date alleged act coming to notice of employer- Alleged misconduct coming to knowledge of management but time spent in collecting proof and charge‑sheet served after expiry of 30 days‑Charge‑sheet, in circumstances, held, time barred‑Grie vance petition against dismissal based upon such charge‑sheet, held, rightly accepted‑ Workman, however, held not entitled to back benefits ‑ Industrial Relations Ordinance. (XXIII of 1969), Ss. 25‑A & 38 (3).

‑‑‑ Misconduct‑‑‑Obtaining licence as practising lawyer and getting enrolement of District Bar during subsistence of service‑Amounts to misconduct whether or not actually practising.

Asghar Mehmood for Appellant.

Mian Abdul Latif for Respondent.

Date of hearing : 15th May, 1982.

This appeal is directed against the decision, dated 30th September, 1981, passed by the learned Presiding Officer. Punjab Labour Court No. 5, Faisalabad, whereby he accepted the grievance petition of respondent and directed his reinstatement with back benefits.

2. The respondent was Senior Operator employed with the appellant. According to the learned counsel for the appellant the appellant received information from Muhammad Afzal Khan Niazi, President C. B. A. that the respondent was member of Mianwali Bar Association and being voter had cast vote also in the election of the office‑bearers of the said association. He also says that Muhammad Afzal Khan had supplied copy of the members of the Advocates of Mianwali also which was bearing the name of the respondent. The appellant sent letter copy of which is Exh. R. 3 to the Advocate‑General for supply of list of the members of the Mianwali Bar. According to the learned counsel for the appellant reply Exh. R. 2 was received. Exh. R. 2 is the report of the Secretary Punjab Bar Council to the effect that the respondent bad been enrolled on 16th November, 1978. This fact is not denied by the respon dent that he was enrolled as member of Mianwali Bar. But his case is that he was not a practising Lawyer. It is also contended that the very charge‑sheet is time‑barred. But the learned counsel for the appellant has argued that the charge‑sheet is not time‑barred because the report of Muhammad Afzal Khan, dated 21st May, 1981, Exh. P. 17 was not relied upon and the appellant sent letter to the Punjab Bar Council and as soon as the reply was received, the respondent was charge‑sheeted. The argument on the point is wholly misconceived. As a matter of fact no report of Muhammad Afzal Khan which is said to be Exh P 11 is on the lower Court's file. However, letter Exh. P. 15, dated 24th April, 1981 sent by the Senior Factory Manager to Mr. Bashir Ahmad, Secretary, Punjab Bar Council shows that on the above‑mentioned date the employer had come to know that the respondent was an Advocate and was practising at Mianwali. By this letter Exh. P. 15 certificate of enrolement of the respondent as Junior Advocate of Mianwah Bar, copy of the affidavit given by the respondent‑to the effect that he was not working any where in copy of his L. L. B. degree were summoned from the Secretary Bar Council. It is thus apparent that on 23rd April, 1981 the appellant had come to know that the respondent was an Advocate in Mianwali. The above‑mentioned documents were summoned manifestly as a proof and not to make sure that the respondent had obtained a licence to act as an Advocate. The appellant had already with it the list of practising Lawyers of Mianwali, dated 8th March, 1981, Exh. R.I. The name of the respon dent figures at S. No. 86 in this list. Thus, the appellant knew even on 8th March, 1981 that' the respondent was a practising Lawyer. The requirement is not that the employer should be definite about the miscon duct but the requirement is that the charge‑sheet should be within 30 days of the alleged misconduct or from the date on which the alleged miscon duct comes to the knowledge of the employer. Exh. P. 15 and Exh. R. I. rendered sufficient information to tae appellant. Enquiry is made not only to give opportunity to the person reported against but also for the satisfaction of the employer that in reality misconduct has been committed. In doubtful cases where more than one person is involved preliminary enquiry or verification from other quarter may be made to fix the responsi bility but in this case as no question of fixing any responsibility arises charge‑sheet should have been delivered within 30 days of the knowledge of the misconduct. Again even if it be said that the appellant wanted to satisfy that in reality the respondent while in his employment bad got himself enrolled as member of the Mianwali Bar, period of 30 days was more than sufficient to verify this fact. Letter Exh. P. 15 should have been sent without loss of time to the Bar Council, and if the reply is not forth coming, a messenger could be sent to bring the reply from there. The appellant in reality was collecting proof and not that he wanted to satisfy himself that in reality the misconduct had been committed by the respondent. Evidence could be collected after charge‑sheeting the respondent within time. If it had been done, the enquiry might have been delayed a bit but charge‑sheet would have been in time. The charge‑sheet, therefore, was time‑barred.

3. I do not find any force in the argument of the learned counsel for the respondent that merely getting himself enrolled as a member of Mianwali Bar, the respondent did not commit misconduct as he was not actually practising. While employed with the appellant, the respondent could not do any other business nor could get a licence to work as an Advocate. This is immaterial whether lie was actually practising or not. The business usually do not get cases, therefore, have no work in the Courts but this cannot be a ground to say that since there was no practice, the respondent was in the substance of his service justified to get licence as a practising Lawyer. The learned counsel for the appellant has cited a number of authorities on the point that the respondent committed misconduct but there survey is not necessary, because principally I do not dispute the argument that the act of the respondent in getting himself' enrolled as an Advocate in Mianwali Bar in the subsistance of his appoint ment with the appellant amounts to misconduct.

4. The other point raised by the learned counsel for the appellant is that the grievance notice was addressed to Antibiotics (Private) Ltd. through Factory Manager whereas order of dismissal was passed by the Factory Manager. He says that the grievance notice should have been given to the Factory Manager and thus the grievance notice was not valid. I do not find any force in this argument. The grievance notice reached the hands of the Factory Manager and it was immaterial that it was addressed to the Antibiotics (Private) Ltd. through the Factory Manager.

5. The argument of the learned counsel for the appellant is not without force that the allegation of victimization is not very much conspi cuous on the record. There is no material on the record to justify the observations made by the learned Lower Court that the possibility of victi mization cannot be ruled out. Victimization is a question of fact and unless there is evidence it cannot be proved.

6. As a result of the observations made above, I hold that the learned trial Court rightly accepted the grievance petition of the respon dent and directed his reinstatement. However, since otherwise the act done by the respondent amounts to misconduct and only on the ground that the charge‑sheet was time‑barred he has succeeded, he is not entitled to back benefits. I, accordingly partly accept the appeal and modify the order of the learned Lower Court by disallowing the back benefits, to the respondent.

A. E.

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