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Appeal No. FD‑128 of 1983, decided on 17th December, 1984.
‑‑-S. 37‑Appeal‑Limitation‑Condonation of delay‑Explanation that appellant developed nervous tension and thus mentally incapacitated‑Application supported by affidavit and no medical certificate produced‑Impugned dismissal order uncalled for Tribunal, in circumstances, taking notice that Labour Court did properly consider case and condoning delay.
‑‑---Misconduct‑Allegation that type speed wrongly mentioned in application for appointment‑Held : Does not amount to misconduct‑Dismissal with stigma of misconduct for such allegation, held, uncalled for though termination of service could be made in case required type speed not given in test.
M. A. Hamid Awan for Appellant.
Mian Arshad Ali for Respondents.
Date of hearing : 10th December, 1984.
The decision, dated 21st March, 1982 recorded by the learned Presiding Officer.. Punjab Labour Court No. 5, Faisalabad has been challenged in this appeal, whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.
2. The appellant was appointed as clerk/typist on 12th June, 1981. On the allegation that in his application for appointment he had given wrong particulars about his typing speed and that he was called upon to undergo test on 9th July, 1981 but he disobeyed the order, his services were terminated.
3. The appeal is time‑barred and application for condonation of delay has been given on the ground that the appellant developed nervous tension and thus was mentally incapacitated and that on recovery on 19th January, 1983 he applied for copy of the learned lower Court's decision and brought the appeal. The application is supported by an affidavit. No counter‑affidavit has been filed on behalf of the respondents. No medical certificate has been produced but in the peculiar circumstances of the case 1 am inclined to condone the delay believing un-controverted affidavit. The thing which has moved me to condone the delay is that the dismissal order is uncalled for and the learned lower Court did not properly consider the case.
4. The allegations made against the appellant do not constitute any misconduct. If the appellant's typing speed was less than what he ha mentioned in his petition, it did not amount to misconduct. Always before appointment test is taken and no reliance is placed upon the facts stated in the application for appointment. It also depends upon the passage to be given for typing. If a difficult passage is to be typed, naturally greater time will be required, with the result that speed will come down. So it cannot be said that intentionally in the application for service wrong typing speed was given. Even if it was wrong, it did not, a mentioned above, amount to misconduct.
5. Likewise, failure on the part of the appellant to sit in the test of 9th July, 1981 did not amount to misconduct. He failed to undergo the test which at the most means that he failed. So at the most his services, may have been terminated but he could not be dismissed from service with a stigma of misconduct.
6. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be re‑instated in service. However, he is not entitled to back benefits as be neither asserted nor proved that after his dismissal he remained un employed. The test of the appellant may be taken afresh and if he fails, he may be terminated, if the respondents so like.
A. E.
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