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Appeal No. LHR-264 of 1982, decided on 8th March, 1980.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

---S.O.15--Appellant dismissed from service--Re-instated solely on technical point of charge-sheet being barred by time--Held: Rightly disallowed beck benefits.

Appellant in person.

Syed Noor Ahmad for Respondent.

Date of hearing: 1st March, 1982.

This appeal arises from the decision dated 2-3-1980 passed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore, whereby the grievance petition of the appellant was accepted and he was directed to be re-instated in service without back benefits. The appellant has challenged the order of the lower Court to the extent it disallowed him back benefits. No separate appeal has been preferred by the respondent but cross-objection have been filed. Cross objections can be made by the party against whom no decision has been passed. In the present case, the grievance petition of the appellant was accepted and he was directed to be re-instated in service, therefore, the respondent could challenge the order of re-instatement in a regular appeal and not by virtue of cross-objection. Since the cross-objection do not lie, they are dismissed. Even otherwise on merits the respondent has no case to challenge the order of re-instatement. The charge-sheet was time-barred. The order of dismissal of the appellant was passed on 28-2-1978, whereas the charge-sheet was delivered on 10-4-1978. Learned counsel for the respondent has argued that Form TT-40 was in reality the charge-sheet and since it was within time, it cannot be said that the charge-sheet was time-barred. He has also argued that although Form TT-40 was given by the checker, who was not the employer of the appellant, yet the charge-sheet was not invalid inasmuch as there is no indication in Standing Order 15(4) of the W.P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 that charge- sheet be signed by the employer. I do not find any force in this argument. The charge-sheet can be given by the authority, who can take final action. Also the enquiry can be ordered by the said employer. A checker is not competent to give the charge-sheet. In reality Form TT-40 was not the charge-sheet, but a first information about the misconduct. On this information the employer had to decide whether any case of misconduct prima facie stood made out and the appellant could be proceeded against. The charge-sheet (Exh.b-2) was Form TT--41, which is dated 10-4-1978 and since it was time-barred, neither any enquiry could be held, nor the appellant could be dismissed.

2. The appellant did not attend the enquiry and his plea is that he had to appear in the examination and had obtained leave. However, there is no copy of the order on the record to show that he applied for leave and that it was sanctioned. The appellant has shown me a document which is on the file but it was not tendered in evidence, nor its execution was proved. A person from the management had appeared before the lower Court but this document was not put to him. It does not appear who passed the order appearing on this application. The lower Court has, therefore, wrongly held that the appellant was on leave and that he informed the Enquiry Officer about it. There is no application or any other document on the file to show that in reality the appellant had informed the Enquiry Officer that he was on leave and that he on account of appearing in examination would not appear on 5-11-1978. The appellant in his statement, no doubt, said that he had obtained leave from 29-10-1978 to 5-11-1978 but he did not tender in evidence the document referred to above. Khalid Masood (DW-1) appeared on behalf of the management and stated that the appellant had not obtained any leave from 29-10-1978 to 5-11-1978 but he was not cross-examined by the appellant. If in reality the appellant had obtained any leave during the said period, he would have cross-examined the witness and would have put the photostat copy of the application referred to above, which is on the file of the lower Court on page 67 but it was not done. It is, therefore, apparent that the appellant without taking leave absented himself from the enquiry from 5-11-1978 with the result that the Enquiry Officer proceeded ex parte against him. Since he did not fight the case of the management before the Enquiry Officer and did not show that he had not committed any mis conduct, he has been re-instated solely on the technical point which is that the charge-sheet was time-barred. He was, therefore, rightly dis allowed back benefits. There is no force in the appeal, which is dismissed.

M. I.

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