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Appeals Nos. LHR‑80 and 86 of 1984/Pb., decided on 28th May, 1984.

-‑‑S. 25‑A‑Workman ‑ Reinstatement Workman not afforded opportunity to cross‑examine prosecution witnesses by Enquiry Officer thereby denying him opportunity to defend himself‑In presence of such a serious and fatal defect, order of removal from service, held, not sustainable‑Workman rightly reinstated in service, in circum stances.

--‑S. 25‑A ‑ Workman ‑Re‑instatement ‑ Claim of baek benefits-- Workman reinstated on ground of denial of opportunity to cross -examine prosecution witnesses by Enquiry Officer a serious and fatal defect‑Such a defect in enquiry proceedings held, not a technical defect‑Reinstatement and claim of back benefits allowed.

Zahid Rashid, U. D. C. for Appellant.

Respondent in person.

Date of hearing : 23rd May, 1984.

The two appeals captioned above arise from the decision, dated Ist February, 1984 recorded by the learned Presiding Officer, Punjab Labour Court No.2, Lahore, directing the reinstatement of Kabir Ahmad (herein after to be called as the respondent) in service without back benefits. The respondent has in his appeal claimed back benefits, whereas the Divisional Superintendent, Pakistan Railways (Workshops), Lahore (hereinafter to be described as the appellant) has in his appeal challenged the direction of reinstatement of the respondent in service. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. On the ground of absence from duty the respondent was removed from service after holding an enquiry. The only ground on which the respondent has been reinstated in service is that he was not given oppor tunity to cross‑examine Mouj Din, complainant. A perusal of the statement of Mouj Din recorded by the Enquiry Officer reveals that in reality the respondent was not given opportunity to cross‑examine him. Mouj Din deposed against the respondent with regard to charges levelled against him, so by not affording him opportunity to cross‑examine the said prosecution witness, opportunity to defend himself was not given to the respondent. This was obviously a serious and fatal defect, in the presence of which, the order of removal from service was not sustainable.

3. The learned lower Court has disallowed the respondent back benefits for the reason that failure on the part of the Enquiry Officer to' afford opportunity to the respondent to cross‑examine Mouj Din, complain 'B ant, was a technical defect. I cannot agree. It was a serious defect and not merely a technical defect. However, instead of allowing re‑enquiry I disallow back benefits to the respondent and thus maintain the order of the learned lower Court.

4. As a result, both the appeals fail and are dismissed.

M. Y. M.

Appeal dismissed.

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