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Appeal No. ST‑721 of 1979, decided on 5tb June, 1982.

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

‑‑‑‑S. O. 15 (4)‑Dismissal for misconduct‑Accused to be informed of alleged misconduct within one month after employer comes to know of misconduct‑Employer in first instance has to decide whether allegation amounts to misconduct‑Bus Conductor's case Receipt of T.T.‑40 Form by Bus Conductor from Checker, held, does not amount to be an information of misconduct to accused.

‑‑S. O. 15 (4)‑Accused to be informed of alleged misconduct within one month of its coming to notice of employer‑Time limit‑Mandatory‑Objection of charge‑sheet being time‑barred can be raised before Labour Court‑Not necessary for accused to raise such objection in reply to charge‑sheet---Objection particularly raised in grievance petition ‑‑ Employer, in circumstances, held, bound to show that charge‑sheet was delivered in time‑Labour Court, in absence of such proof by employer, held, rightly found that charge‑sheet was time‑barred.

‑‑Dismissal for misconduct‑Domestic enquiry‑Undue haste by Enquiry Officer‑Effect‑Accused must be given ample opportunity to cross‑examine prosecution witnesses and to produce defence-- Whole proceedings completed within two hours without granting any adjournment to accused to produce his defence‑Undue haste by Enquiry Officer, in circumstances, held, caused miscarriage of justice.

Muhammad Salim Khan for Appellant.

Zafar Salim for Respondent.

Date of hearing : 22nd May, 1982.

The appeal arises from the decision dated 30th September, 1978 passed by the learned Presiding Officer, Punjab Labour Court No. 7, Gujranwala, whereby the grievance petition of the respondent was accepted and he was directed to be reinstated in service with back benefits.

2. On 3rd March, 1978 the bus No. 8416 conducted by the res pondent from Gujranwala to Alipur was checked and it was found that he, had embezzled an amount of Rs. 3.60. He was charge‑sheeted and an enquiry was held, which culminated in his dismissal.

3. It was asserted on behalf of the respondent that the charge‑sheet was 'time‑barred. The charge‑sheet. Exh. R. 5 is dated 12th March, 1978, and the incident took place on 3rd March, 1978. The stand taken by the respondent was that the charge‑sheet was delivered to him on 26th April, 1978. The other point taken on behalf of the respondent was that undue baste was shown in making the enquiry, inasmuch as it was completed within two hours period only.

4. So far as the question of charge‑sheet being time‑barred is concerned, learned counsel for the appellant has argued that according to Standing Order 15 (4), only an information is to be given to the employee concerned and there is no provision of the issuance of charge- sheet. He further says that form T.T.‑40 was issued by the checker and thus the respondent was given information about the charges against him. He also says that it is not necessary that the information about the misconduct be given by the employer. I cannot agree with the learned counsel. Form T.T.‑40 is not an information to the person concerned about the misconduct, but rather this is the first information report made to the employer about the alleged misconduct. Since the reply of the conductor concerned is also to be forwarded with the information, therefore, he is called upon to submit his reply. This is true that the checkers have been authorised to send form T.T.‑40 to the employer with the reply of the conductor concerned, but it does not mean that the information is to be given by the checker. Information of the miscon duct is to be given by the employer. The question of giving information about the misconduct arises only after employer comes to know of the misconduct. Standing Order 15 (4) clearly says that information in writing about the misconduct is to be given within one month of the date of misconduct or of. the date on which the alleged misconduct comes to the notice of the employer. It is clear that in cases where the employer comes to know of the misconduct forthwith, the informa tion about the misconduct is to be given to the employee concerned within one month of the commission of misconduct, but in case where the misconduct cannot come to the notice of the employer forthwith. the information is to be given within one month of the date on which the employer comes to know of the misconduct. It is clear that the information about the misconduct is to be given to the employee con cerned by the employer or by some other authority authorised by the employer. If the intention of the Legislature had been otherwise there would have been no necessity of saying that the information as to the misconduct should be given within one month of the date on which the employer comes to know of the misconduct. The employer first of all has to decide whether the allegation made against the employee in reality amounts to misconduct and thereafter the question of giving information to the employee concerned arises. On form T.T.‑40 the signatures of the employee concerned are received but by that time form T.T.‑44 had not reached the employer and the latter had no opportunity to consider whether the allegation made therein amounts to misconduct or not. So, form T.T.‑40 cannot be said to be an information of the misconduct.

5. The other point raised by the learned counsel for the appellant is that in reply to the charge‑sheet no objection was raised that it was time‑barred. This is not necessary to raise such an objection in answer to the charge‑sheet and the workman is not debarred from agitat ing such a point before the Labour Court. It was the duty of the appellant to show that the charge‑sheet was delivered to the respondent within one month when particularly an objection had been taken in the grievance petition. Since it has been proved that the charge‑sheet was delivered within one month, the learned lower Court has rightly found that the charge‑sheet was time‑barred.

6. This fact cannot be denied that the enquiry was made with undue haste. The prosecution may complete their case within any time it likes, but the accused workman must be given ample opportunity to cross- examine the prosecution witnesses and to produce his defence. In the present case, the whole enquiry was completed within about two hours or so, without granting any adjournment to the respondent to produce his defence. Undue haste made by the Enquiry Officer caused miscarriage of justice, as the respondent could not produce his defence.

7. The other point argued by the learned counsel for the appellant is that since the case was not decided by the Labour Court on merits, the respondent was not entitled to back benefits. This argument no doubt is not without force. Learned counsel for the respondent had not been able to say anything effective except this, that he has said that this tribunal may examine the case and decide it on merits. Learned counsel for the respondent should have requested the lower Court to decide the case on merits, but since no decision on merits has been recorded, in appeal the merits cannot be touched, because it may prejudice any of the parties, who would have no right of appeal.

8. As a result of the observations made above, I partly accept the appeal and modify the impugned decision of the learned lower Court by disallowing back benefits to the respondent.

A. E.

Appeal accepted.

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