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Appeal No. LHR-101 of 1980/Pb., decided on 19th June, 1982.

---S.25-A--Dismissal from service for misconduct--Respondent reinstated in service by Labour Court due to defective enquiry proceedings--Order of re-instatement challenged on ground that no grievance notice was served--Objection raised in written statement but no finding recorded on this point--Held petition was incompetent and labour Court had no jurisdiction--Necessary for Labour Court to record finding--Case remanded for deciding afresh after affording opportunity to parties to produce evidence on point of service of grievance notice.

M.S. Bokhari for Appellant.

Wasim Ahmad for Respondent.

Date of hearing: 30th May, 1982.

This appeal arises from the decision dated 13-2-1980 passed by the learned Presiding Officer, Punjab Labour Court No.2, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be reinstated in service without back benefits.

2. The allegation against the respondent, for which he was dismissed after being charge-sheeted and an enquiry held -against him, was that he had stolen one kilogram of indigo. The respondent was charge-sheeted on 5-11-1977 to which he gave a reply. After making an, enquiry, second show-cause notice was issued to him, which is dated 7-11-1977. He was dismissed from service on 8-11-1977. On making an application under section 25-A of the Industrial Relations Ordinance, 1969 the respondent was directed to be reinstated with permission to the appellant to make re-enquiry. After making re-enquiry the respondent was again dismissed on 17-1-1979 and he challenged the order in a petition under section 25-A, which was accepted and he was reinstated with back benefit..

3. The grounds given by the learned trial Judge for reinstating the respondent are that the representative to assist the respondent was appointed by the Management and not by the respondent himself, that the Enquiry Officer acted as prosecutor, inasmuch as he examined the prosecution witnesses and cross-examined the defence witnesses.

4. In the written statement an objection was raised on behalf of the appellant that no grievance notice was served by the respondent but the learned trial Judge did not record any finding on the point. If no grievance notice was given, the very grievance petition was incompe tent and the Labour Court had no jurisdiction to order the reinstatement of the respondent. The point, therefore, was very important and material. The respondent did not bring any evidence on the record on the point. The learned counsel for the respondent has argued that since in the memorandum of appeal, this point was not raised, it cannot be argued. This is true that in the memorandum of appeal, this point is not mentioned, but since it was raised in the written statement and the question of jurisdiction of the court rests upon the decision of such a point, it was necessary for the lower court to record its finding.

5. I, therefore, accept the appeal and setting aside the impugned decision of the learned lower Court, remand the case with the direction that after affording proper opportunity to the parties to produce evidence on the point of service of grievance notice, the case be decided afresh. If the parties wish to produce any other evidence on the remaining issues, the learned lower court will be competent to pass proper order allowing of disallowing such an evidence.

M. I.

Case remanded.

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