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Appeal No. SL‑203 of 1984, decided on 13th August, 1984.

‑‑‑Ss. 25‑A & 38(3)‑‑Grievance petition against dismissal for mis‑conduct‑‑Evidence of witnesses in domestic enquiry recorded in absence of accused‑‑Enquiry defective‑‑Order of Labour Court directing re instatement of accused workman, in circumstances, held, un-exception‑able‑‑Employer in such circumstances has a right to hold fresh enquiry‑ Appellate Tribunal in order to finalize dispute disallowing holding fresh enquiry and in lieu thereof disallowing back benefits allowed by Labour Court‑‑Security of service, held, better than back benefits.

‑‑‑ Estoppel‑‑No estoppel against provisions of codified law or statutory rules notified in official Gazette‑‑Estoppel‑‑Principle‑‑Not applicable with regard to reported case‑law because general presumption ‑ that every citizen is aware of law does not arise in respect of reported case- law‑‑Grievance petition before Labour Court contested on grounds that grievance notice having been served through Advocate was not valid‑ Such objection not stated precisely in written statement where only mention was that notice was not legal‑‑Supreme Court's ruling being relied in that respect also not cited‑‑Labour Court dismissing grievance petition and petitioner (workman) without loss of time filing valid grievance petition within 3 days‑‑Objection that second grievance notice was time‑barred‑‑Plea that petitioner should have withdrawn previous grievance petition immediately because objection as to legality of grievance notice was mentioned in written statement and should have immediately, thereafter filed valid grievance notice‑‑Further plea that there was no estoppel against law‑‑Petitioner (workman) being unaware of precise objection‑‑Objections and pleas, in circumstances, rejected and second grievance notice, held, not time‑barred‑‑Grievance notice‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A.

1980 P L C 342; 1984 P L C 1639; 1983 P L C 1075; 1966 SCMR 274; P L D 1969 S C.167; 1982 S C M R 752; 1975 S C M R 259 and PLD 1977 S C 102 held not applicable.

Naeem Bokhari for Appellant.

Muhammad Zaman Qureshi for Respondent.

Date of hearing: 54^th August, 1984.

The above captioned appeal arises from the decision, dated 28‑3‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 9, Multan, accepting the grievance petition of the respondent for his re‑instatement in service with back benefits.

2. There were three‑folds allegations against the respondent for which he was delivered three charge‑sheets and two separate enquiries were held which culminated in a single composite order of dismissal. So far as charge‑sheet Exhs. P.1, dated 28‑8‑1979 is concerned, the allegation is that the respondent abused. Mr. Wali Muhammad, Oil Incharge. Charge‑sheet Exh. R.5, dated 20‑9‑1979 contains the allegation that the respondent tampered with the attendance register and marked him present from 16th to 18^th September, 1979. The third charge‑sheet Exh. P.2 is to the effect that he remained absent without leave from 20‑9‑1979 to 30‑9‑1979. Joint enquiry was held in respect of charge- sheets Exh. R.5 and P.2. So, far as allegation of tampering with the attendance register is concerned, there is no direct or ocular evidence. Dilbar Hussain R.W. did not say that he had seen the respondent marking himself present. There is no evidence of any handwriting expert that the marking is in the handwriting of the respondent. So the allegation stands disproved. So far as absence from 20‑9‑1979 to 30‑9‑1979 is concerned, the enquiry is defective. One of the defence witnesses was Ghulam Ali but his statement was recorded in the absence of the respondent as is evident from the enquiry proceedings. On 11th the statement of Ghulam Ali was recorded and it is recorded in the pro ceedings that the respondent had not turned up. On the same date the evidence of another defence witness was recorded in the presence of the respondent, meaning thereby that he was very much present. Since he was present, how could it be said that he did not turn up. Since in the absence of the respondent the statement of defence witness was recorded, it cannot be said that he was afforded proper opportunity of defence. So far as charge‑sheet Exh. P.1 is concerned, the enquiry proceedings are not on the file, so it cannot be said if enquiry was made properly.

3. It has been argued by the learned counsel for the appellant that second grievance notice was time‑barred. The earlier grievance notice was within time but the petition was dismissed for the reason that the notice‑ had been given by the lawyer and not by the respondent himself. Thereafter, the respondent gave another notice. The line of argument of the learned counsel is that since objection was taken in the written statement about the illegality of the grievance notice, the respondent should have at once withdrawn the petition and should have served a valid notice without loss of time. The objection was vague and not precisely to the effect that on account of having been given by the lawyer, the notice was invalid. The Supreme Court's ruling was not cited. It was not necessary no doubt, but in order to put the respondent on his guard, the above mentioned particulars should have been given. Since the respondent did not know what was the precise objection, he did not take timely steps to serve another notice. It has also been urged that there is no estoppel against law.‑ This is true but there is no estoppel against the provisions of codified law or statutory rules that are notified in the official Gazette. By such notification a presumption arises that every citizen is aware of the law of the country. No such general presumption arises with regard to reported case law. It cannot be said that every citizen knows all the decisions of the High Court or the Supreme Court. Only the parties in the said cases are presumed to know them. After the dismissal of the previous petition, no time was lost and within three days legal notice was served. So, the notice was not time‑barred. The rulings cited by the learned counsel such as 1980 P L C 342; 1984 P L C 1639; 1983 PLC 1075; 1966 S C M R 274; P L D 1969 S C 167; 1982 SCMR 752; 1975 S C M R 259 and P L D 1977 S C 102 are not helpful. The impugned decision of the learned lower Court so far as direction or re‑instatement is concerned, is unexceptional: When an enquiry is defective and on this ground the employee has been re‑instated, the employer has a right to hold fresh enquiry but to finalize the dispute. I disallow the appellant from making fresh enquiry and in lieu of it disallow back benefits to the respondent. Security of service is better than back benefits.

4. As a result, I partly accept the appeal and modifying the impugned decision of the learned lower Court, disallow back benefits to the respondent.

A. E.

Appeal partly accepted.

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