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Appeal No. LHR‑214 of 1985, decided on 24th December, 1985.

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

‑‑‑S.O. 15(4)‑‑Institution of enquiry and dismissal for misconduct‑ Competency of employer‑‑Order regarding appointment of Enquiry Officer and institution of enquiry and those of dismissal passed by different authorities‑‑Nothing on record as to who was competent to do both the acts‑‑Either of the two and not both of them could be competent‑ Dismissal orders, in circumstances, held, was not sustainable.

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

‑‑‑S. 2(i)‑‑"Workman"‑‑Vanman of tea company‑‑Loading and unloading tea taking it to shops and delivering to customers under instructions of salesman, held, a workman.

‑‑‑S. 37‑‑Appeal‑‑Joint appeal against order of Labour Court on different grievance petitions of different petitioners‑‑Defect is not fatal so as to throw away appeal.

Anwar Ali Chaudhry fore Appellants.

Irshad Ali Mian for Respondent.

Date of hearing: 23rd December, 1985.

The decision, dated 26‑2‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged, whereby the grievance petition of the appellants for their re‑instatement in service has been dismissed. On behalf of the respondents cross‑objections have been filed, which are being disposed of alongwith the appeal.

2. The allegation against the appellants were that they went to the Branch Manager Mr. Iftikharullah and while asking him to take action against Niaz, Salesman who is alleged to have beaten Ghulam Muhammad, Vanman, abused him and threatened him that a treatment would be given to the members of the management worst than the one given to Ghulam Muhammad, Vanman.

3. It has been argued by the learned counsel for the appellants that statements of the appellants were recorded before recording the evidence of the prosecution witnesses and thereafter no statement of the appellants was recorded again. This argument is without any foundation. No doubt it was inquired from the appellants if they wanted to give statement in defence before or after the recording of the prosecution evidence, but no statement was recorded before recording the prosecution evidence. The appellants filed affidavits without having been asked by the inquiry officer.

4. The other argument is that the complainant admitted that he had taken the appellants aside and cooled them down and they went away. No doubt, it so happened but before that the appellants had committed misconduct. The complainant took aside the appellants to prevent them from creating further break of peace but it does not mean that whatever misconduct the appellants had before that committed, had lost its criminal nature or stood minimised.

5. However, the point raised by the learned counsel is important that the inquiry officer was appointed by the general Sales Manager, Karachi, whereas the dismissal order was passed by the Marketing Director. Either of the two and not both of them could be competent to do both the acts. There is nothing on the record, who out of the two was competent. No rule has been shown that the General Sales Manager had authority to appoint inquiry officer and the Marketing Director was competent to pass dismissal order. Such an objection had been taken by the appellants from the very beginning but neither any rule nor any letter showing that both of the said authorities had been authorised by some competent authority to do the acts done by them. Unless evidence or rule had been produced, it could not be held that one was competent to appoint the inquiry officer and the other could only pass the dismissal order. If the Marketing Director had jurisdiction to pass dismissal order, then only he was competent to consider the reply to the charge‑sheet and to decide if inquiry be held or not and only he could have appointed the inquiry officer. If the General Sales Manager, who had decided after perusing the reply to the charge‑sheet that holding of inquiry was necessary, was competent, then presumption arises that since he was not inclined to dismiss the appellants, therefore, the inquiry report and inquiry proceedings were not placed before him and instead were sent to the Marketing Director. If the Marketing Director was competent, then the order of appointment of the inquiry officer was without jurisdiction. Thus the dismissal order is note maintainable.

6. I do not find force in the argument of the learned counsel for the respondents that the learned lower Court has wrongly found that the appellants are workmen. Vanmen in the respondent Tea Company load and unload articles on the van, take them to shops and deliver them to the customers under the instructions of the salesmen. The vans are hand‑driven carts. The Vanmen thus do manual work. No doubt P.W. 1 stated that they had promoted the sale of tea and had to us their faculties but whatever faculty they possess is not sufficient for the promotion of sale. The witness made a hyperbolic statement without realising its effects. The appellants are not educated persons and thus they do not possess those faculties, which are required for the promotion of sale of tea. This is a function of salesmen and not of the Vanmen. So the appellants have been rightly adjudged as workmen.

7. The other objection is that there being three grievance petitions brought by each of the appellants separately, three separate appeals could have been brought and not one. Yes. It would have been better if there had been three separate appeals but this defect is not fatal to the case of the appellants. For this defect alone the appeals cannot be thrown away.

8. So far as merits are concerned, the evidence of the Branch Manager was sufficient to prove the charge. No doubt one witness produced to corroborate the testimony of the complainant did say that no incident had taken place but the learned lower Court has rightly remarked that his seat of work was in a different room. He may not have heard the abusive and threatening words used by the appellants.

9. Since it has not been proved that the authorities who decided to hold inquiry and to appoint inquiry officer and the one who passed the dismissal order were competent to do so, the order of dismissal is not sustainable. However, the appellants are not entitled to back benefits as the charges are supported by the evidence and they are succeeding on a technical ground that the authorities who appointed the inquiry officer and the one who passed the dismissal order were not competent.

10. As a result, the appeal is accepted and setting aside the dismissal order and the impugned decision of the learned lower Court, the appellants are directed to be re‑instated in service without back benefits

A.E.

Appeal accepted

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