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Appeals Nos. FD-617 and FD-594 of 1979, decided on 23rd February, 1982.

Heat Pakistan Industrial and Commercial employment (Standing Orders) Ordinance (VI of 1968)--

---S.O.15(4)--Domestic enquiry--Service of charge-sheet and considering reply of accused--Necessary before appointing Enquiry Officer--Charge-sheet not served--Enquiry in circumstances, held, defective--Fact that accused was otherwise aware of alleged charge, held, not sufficient to wash of irregularity--Labour Court, in circumstances, held, rightly directed re-instatement--Order of Labour Court permitting fresh enquiry after service of charge-sheet and making back benefits subject to result of such enquiry also upheld by Appellate Tribunal--Industrial Relations Ordinance (XXIII of 1969), Ss.25-A a 38(3).

Kanwar Shamim Akhtar for Appellant.

Shamim Ahmad for Respondent.

Date of decision: 23rd February, 1982.

The two appeals captioned above arise from the decision, date 9-9-1979 passed by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, whereby the grievance petition of the respondent for his re-instatement was accepted and he was ordered to be re-instate but the appellant was permitted to conduct fresh inquiry and was further directed to give back benefits to Muhammad Shaft if in inquiry he was found to be not guilty. The management has challenged the order of re-instatement whereas Muhammad Shafi has challenged the direction that reinquiry be made on the same charge-sheet. Since bott the appeals arise from the same judgment, therefore, they are disposed of together through. this judgment. In this judgment the General Manager, Lyallpur Cotton Mills will be described as appellant and Muhammad Shafi as respondent.

2. The respondent was working in the day shift and was by verbal order directed to work in night shift. The respondent did not work in the night shift and was marked absent. He was charge-sheeted for remaining absent for more than ten days. The charge-sheet way sent at his home address by registered post but it came back with the report that the addressee had not been found at the given address. No fresh attempt was made to serve the charge-sheet upon the respondent through registered post nor by means of substituted means of service and Inquiry Officer was appointed and the inquiry was started. The respondent however, joined the inquiry and on his asking copy of the charge-sheet was delivered to him by the Inquiry Officer.

3. Learned counsel for the appellant has argued that although charge-sheet had not been delivered to the respondent, yet he had the knowledge of the charge-sheet and the charge levelled against him inasmuch as he had brought a grievance petition challenging his transfer from day shift to night shift and he has spoken of the charge-sheet and the charge levelled against him in his petition, learned counsel for the appellant has argued this for the simple reason that the charge-sheet was not served upon the respondent was not sufficient to set aside the order of dismissal. I do not find any force in the argument of the learned counsel. The simple fact that the respondent challenged his transfer from day shift to night shift in the Labour Court and said that he had been charge-sheeted for absence is not sufficient to say that the illegality in starting inquiry without delivering charge-sheet to the respondent and without considering his reply to the charge-sheet was washed of. In clause 4 of Standing Order 15 word 'shall' is used. It is, therefore, incumbent upon the employer to inform the workman concerned in writing of the charges levelled against him, enabling him to reply to the allegations made against him. In the present case since the charge-sheet was not served upon the respondent he could not give reply to the misconduct alleged against him. Since there was no reply to the charge before the employer he could not appoint any Inquiry Officer and to order holding of inquiry. Inquiry can be ordered and Inquiry Officer appointed only after considering reply to the charge sheet and finding it as unsatisfactory. The lower Court, therefore, rightly directed re-instatement of the appellant.

4. The representative of the respondent has said that the second inquiry is complete and final order has been passed on account of pendency of the present appeal. He says that if the employer finds that the charge has been proved the respondent will be again dismissed and if the finding is otherwise the respondent will get the back benefits. He has not, therefore, seriously conducted the appeal of the respondent against the direction of re-inquiry made by the lower Court. Even otherwise it cannot be said that lower Court has no jurisdiction to order re-inquiry particularly when the only defect was that the charge sheet was not served upon the respondent before the inquiry was made.

5. As a result of the observation made above I do not find any force in both the appeals and dismiss them.

M. Y. M.

Appeals dismissed.

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