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Appeal No. QSA‑347 of 1983, decided on 19th March, 1984.

‑‑ Domestic enquiry‑Accused not present due to illness and enquiry adjourned without notice to accused‑Enquiry completed without participation of accused‑Dismissal order pursuant to findings of such enquiry‑Not maintainable.

‑‑ Ss. 25‑A & 38(3)‑Grievance petition against dismissal for mis conduct‑Workman (appellant) charged of serious allegation of mis appropriation‑Impugned dismissal order passed on basis of findings of enquiry completed in absence of workman due to absence of notice of enquiry‑Order of Labour Court dismissing grievance, in circum stances, set aside by Appellate Tribunal awarding re‑instatement to appellant without back benefits and permitting employer to hold fresh enquiry from stage of illegality.

M. A. Hamid Awan for Appellant.

Asadullah Siddiqui for Respondent.

Date of hearing : 10th March, 1984.

The appeal captioned above arises from the decision, dated 1st June. 1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 3. Lahore at Ferozewala, whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

2. The facts are that a tanker No. LET‑3855 carrying Soyabean oil was entrusted to an Oil Clerk Amanullah Shah to be brought to the res pondent Mills but it was not brought and the appellant made false entries in the gate register and oil register. In order to show that the tanker had been decanted in tank No. 3 he transferred palm oil from tank No. 2 to tank No. 3 and thus raised the dip level. In order to make up the dip level of tank No. 2, it was heated up by means of steam. In the morning palm oil was seen in tank No. 3 and tank carrying a heat upto 50 centigrade. The appellant was charge‑sheeted and enquiry was held, which culminated in his dismissal from service.

3. Prosecution evidence was, no doubt, recorded in the presence of the appellant but he was not afforded proper opportunity of defence. On 17th June, 1981 he had presented medical certificate to the effect that for two days light duty be given to him. The appellant requested for adjournment on the basis of the medical certificate but the Enquiry Officer did not agree and adjourned the enquiry to 18th. On the said date thp appellant did not attend the enquiry. The Enquiry Officer adjourned the enquiry to 20th June, 1981 but did not send any notice to the appellant informing him about the date of 20th. On the said date the appellant did not appear and the enquiry was closed. On 21st the appellant sent medical certificate re commending the appellant three days complete rest, but in spite of it, no date of enquiry was fixed, nor the appellant asked to participate in the inquiry. Since the appellant was not present on 18th and in his absence the enquiry was adjourned to 20th he should have been informed ' accordingly. The dismissal order, therefore, was not maintainable.

4. As a result, the appeal is accepted and setting aside the order of dismissal and the impugned decision of the learned lower Court the appel lant is directed to be reinstated in service. Since the charge against the appellant was of serious misconduct, I allow the respondent to hold fresh enquiry from the stage the illegality was committed. The question of back benefits will depend upon the result of the fresh enquiry. However, if the respondent does not propose to hold fresh enquiry, the appellant shall stand reinstated finally without back benefits. No doubt, the appellant stands deprived of back benefits, but in lieu of it he escapes the possibility of dismissal on the same charge.

A. E. Appeal accepted.

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