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Appeal No. KAR-614 of 1983, decided on 25th July, 1984.

--S. 38 (3)-Scope-Grievance petition against dismissal for mis conduct of (1) disobedience of lawful and reasonable order of Superior and (2) go-slow-Charge No. (1) not established in domes tic enquiry-Labour Court finding that Charge No. (2) also not proved ordering re-instatement with back benefits - Appellate Tribunal in appeal finding Charge No. (2) established and vacating order of Labour Court-Workman challenging order of Appellate Tribunal in constitutional petition before High Court-High Court finding that Charge No. (2) not proved but remanding case to Appellate Tribunal "for purpose of examining question whether there is sufficient evidence on record to sustain charge of misconduct other than allegation No. (2) i.e. go slow-Contentions at remand stage that (1) Labour Court had no jurisdiction and (2) grievance petition before Labour Court was time barred-Objection as to jurisdiction raised before Labour Court and already rejected for cogent reasons-Limitation issue never raised before Labour Court, Appellate Tribunal or High Court-Jurisdictional issue also not raised either in appeal before remand or before High Court-Such objections, in circumstances, held, could not raised for first time at such belated stage.

--S. 38 (3) read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(4) Misconduct to be brought to notice of accused workman within one month of its coming to notice of employer-Allegations neither mentioned in charge-sheet nor subject-matter of enquiry-Sought to be, examined by Appellate Tribunal on basis of evidence on record - Allegations already nearly nine years old-Appellate Tribunal, in circumstances, refusing to examine such time-barred charge.

Abdul Abid Puri for Appellant.

Maroof Ali Khan for Respondents.

Date of hearing : 11th July, 1984.

The facts briefly stated are that the respondent, Hakimuddin was charge-sheeted under a charge-sheet, dated 27th September, 1975, for misconduct on two charges, firstly, disobedience of lawful and reasonable order of his superior Khamiso Khan, Foreman, and secondly, go-slow. The enquiry officer found the first charge not proved, whereas recommen ded his dismissal on the second charge having been established against him. In pursuance of the finding of the enquiry officer, he was dismissed from service on 1st November, 1975. He filed an application under section 25-A, I.R.O., 1969, before the IIIrd Labour Court at Karachi for reinstatement. The application was resisted by the appellant's Company. The learned Labour Court finding the charge of go-slow also not proved allowed the application and ordered reinstatement of the respondent with full back benefits vide order, dated 5th July, 1976. The appellant came in appeal before this Tribunal and this Tribunal vide its order, dated 20th December, 1976 found the charge of go-slow established against the respondent and vacated the order of reinstatement passed in his favour by the learned Labour Court. The respondent filed a Constitutional Petition against the above order of this Tribunal and the Hon'ble High Court, vide its order, dated 12th September, 1983, in C. P. No. D-270/77, found that the charge of go-slow was also not proved against the respondent. While disposing of the petition the Hon'ble High Court, however, remanded the case to this Tribunal with the following observations :-

"We would, therefore, allow the above petition and declare the im pugned order as being without lawful authority and of no legal effect. However, we would remand the case to the learned Sind Labour Appellate Tribunal for the purpose of examining the ques tion, whether there is sufficient evidence on the record to sustain the charge of misconduct other than the allegation of go-slow. We are not inclined to examine the evidence on the above aspect as it is within the jurisdiction of the learned Sind Labour Appellate Tribunal."

2. I have perused the relevant evidence on the record and have also heard the learned counsel for the parties, Mr. Abdul Abid Puri for the appellant and Mr. Maroof Ali Khan for the respondent. Mr. Abid Puri for the appellant has in the first instance raised the legal pleas with regard to the jurisdiction of the Labour Court as well as the question of bar of limitation. He bas contended that neither the Labour Court had jurisdiction to entertain the application, nor it was filed within a period of limitation. I find from the record that the question of jurisdiction of the Labour Court was raised before the Labour Court and the learned Labour Court dismissed the same for cogent reasons. It was never agitated again either before this Tribunal or before the Hon'ble High Court in the Constitutional Petition. So far the question of limitation is concerned I find that it was never raised at any stage. It was not raised even before the Hon'ble High Court in the proceedings in the Constitu tional Petition. It is for the first time that it is raised before this Tribunal after the case has been received by remand. Mr. Maroof Ali Khan, the learned counsel for the respondent has produced a certified copy of the counter-affidavit filed by the appellant contesting the proceed ings before the Hon'ble High Court in the Constitutional Petition in support of his contention that the two legal pleas were not raised even before the Hon'ble High Court and they cannot be raised now at this stage. The contents of the counter-affidavit would make it clear that the two pleas with regard to the jurisdiction of. the Labour Court and the question of bar of limitation were not raised before the Hon'ble High Court. In my view, therefore, they cannot be raised at this belated stage before this Tribunal in. these proceedings, also for the reason that this Tribunal by examining such pleas would clearly act beyond the scope of the directions of the Hon'ble High Court in the Remand Order.

3. Mr. Abid Puri for the appellant then contended on the merits of the case that in case the two charges levelled against the respon dent in the charge-sheet were not established, the Hon'ble High Court directed in the Remand Order that this Tribunal should examine on the basis of the evidence available as to whether any other charges would be established against the respondent. In that respect he has contended that on the evidence available the charges of wilful insub ordination and also riotous or disorderly behaviour would be proved against the respondent. However, he has failed to refer to any such evidence is at all available on the record in support of such charges. I am afraid no such evidence must have been adduced before the learned Labour Court for the simple reason that the two new charges of wilfull insubordination and riotous or disorderly behaviour on the part of the respondent were not levelled against him even in the charge-sheet and they were never enquired into by the Enquiry Officer in the domestic enquiry. I am unable to see as to how this Tribunal would examine the evidence at this stage with regard to these two new charges which are quite distinct and independent of the charges of disobedience of lawful and reasonable orders and go-slow as would be clear from the provisions of Standing Order 15 (3). On the other hand, Mr. Maroof Ali Khan has contended that there is a bar of limitation as provided by Standing Order 15 (4) of the West Pakistan Standing Orders Ordinance, 1963, as the respondent workman had to be informed in writing of the alleged mis conduct with regards to the two new charges within one month of the date of such misconduct, or of the date on which the alleged misconduct came to the notice of the employer. The alleged misconduct on the two new charges admittedly was not brought to the notice of the respondent within one month either of the date of such misconduct or when such misconduct came to the notice of the employer. It can never be the case of the employer that the two charges came to his knowledge now, after a lapse of nearly nine years. Accordingly, the misconduct arising out of these two new charges if at all, is clearly time-barred by virtue of provi sions of Standing Order 15 (4). In case the intention of the Hon'ble High Court was to examine the evidence with regard to the charge of dis obedience of lawful order of Khamiso Khan, Foreman of the respondent it would suffice to say that such charge of disobedience was not proved against the respondent even in the domestic enquiry as it would be clear from the enquiry report itself and it cannot be re-opened now.

4. The result is that the appeal is dismissed.

A. B.

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