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Appeals Nos. KI‑91 and LHR‑118 of 1985, decided on 22nd September, 1985.
West Pakistan industrial and commercial employment (standing orders) ordinance (VI of 1968):-
‑‑‑S.O. 15(4)‑‑Charge‑sheeting and calling explanations‑‑Competence‑ Employer alone and none else competent to charge‑sheet and call explanation for taking action‑‑P.I.A. employee serving in canteen‑ Charge‑sheet by canteen incharge disputed as being incompetently signed‑‑No evidence that canteen was a separate entity and not under P.I.A establishment‑‑Charge‑sheet not given by incharge of establishment, in circumstances, held, incompetent and dismissal order based upon it rightly set aside by Labour Court.
Ali Sibtain Fazli for Appellant.
Muhammad Zaman Qureshi for Respondent.
Date of hearing: 17th September, 1985.
The decision, dated 2‑2‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged, whereby Tasneem Jalal (hereinafter to be described as 'the respondent') was directed to be re‑instated in service without back benefits. P.I.A. (hereinafter to be described as 'the appellant') has challenged the direction of re‑instatement, whereas the respondent has in his appeal claimed back benefits. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment,
2. The allegation for which the respondent was dismissed from service was of absence for more than 10 days. The ground on which the learned lower Court has set aside the dismissal order is that the charge sheet was given by an incompetent authority. The incharge of the canteen had signed the charge‑sheet. It has been argued by the learned counsel for the appellant that Standing Order 15(4) does not say that the employer has to issue the charge‑sheet himself. The argument is not tenable. The order referred to above does not say that any person or officer can issue charge‑sheet or call explanation of the employees. In the absence of a specific provision that person or officer can issue the charge‑sheet, only that authority is competent to do so who has jurisdiction to take action. Since within one month of the date on which the employer gets information of the commission of misconduct, the charge‑sheet is to be given, it is clear that only the employer and none else is competent to deliver the charge‑sheet or call explanation for taking action. It has been argued that the incharge of the canteen is the employer. According to the definition of employer, incharge of an establishment is employer. There is no evidence that the canteen is a separate entity and is not under the P.I.A. establishment. So this argument to has no force. Since the real employer did not give the charge‑sheet and consider the reply of the respondent, no inquiry could be held and the respondent dismissed. The order of dismissal, therefore, was rightly set aside by the learned lower Court.
3. At the same time the appeal of the respondent too has no force he respondent did not assert and say that since the date of dismissal, He was jobless. Back benefits are allowed if the employee is ready and willing to serve but the employer prevents him from doing so by dismissing him wrongly. If the employee after being dismissed gets job, he cannot be said to be willing and available to serve his previous employer. Back benefits are allowed not as a punishment to the employer for wrongfully dismissing his employee but only to compensate the employee for being prevented from discharging his duty. So it is necessary for him to assert that tie remained jobless.
4. As a result, both the appeals fail and are dismissed.
Appeals dismissed.
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