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Appeal No. LHR‑61 of 1985, decided on 18th January, 1986.

‑‑Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Enquiry defective‑ Whether fresh enquiry be permitted‑‑Accused charged of attacking and misbehaving officer of establishment‑‑Parties compromising and not seriously contesting enquiry‑‑Witnesses of prosecution and defence not cross‑examined‑--Labour Court setting aside dismissal order for reasons that in absence of cross‑examination of witnesses it was not possible to decide which party was aggressor‑‑Order of Labour Court awarding re‑instatement, in circumstances, modified by Appellate Tribunal permitting fresh enquiry.

Malik Bashir Ahmad for Appellant.

Respondent in person.

Date of hearing: 12th January, 1986.

The decision, dated 9‑1‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged, whereby the respondent has been directed to be re‑instated in service without back benefits.

2. The allegations against the respondent were that her attacked and abused Rana Bashir, Incharge Store Accounts and misbehaved with Umar Sultan, Accounts Assistant. The respondent when appeared before the inquiry officer delivered to him application Exh. R.5 informing that he had unconditionally apologized before Rana Bashir Ahmad, Assistant Manager. Vide the said writing the respondent requested the inquiry officer to drop the inquiry. Rana Bashir Ahmad in his statement said that he had compromised with the respondent as the latter had tendered unconditional apology. All the prosecution witnesses, however, supported the charges. The respondent did not cross‑examine any witness. The respondent examined witnesses in defence and they were not cross‑examined by the representative of the Management. The learned lower Court has held that as parties did not cross‑examine the witnesses examined against each other, it was not possible to decide which party was the aggressor. The employees compromised but the Management did not accept the apology. The employer should have, instead of awarding punishment, ordered fresh inquiry so that both the parties could get opportunity to cross‑examine the witnesses examined against them. Whatever view is taken, the party adversely affected by the view, would be prejudiced as it did not cross‑examine the witnesses under the impression that the matter would be dropped. The learned lower Court, therefore, should have permitted fresh inquiry while directing the re‑instatement of the respondent. There is no other alternative. Learned counsel for the appellant has cited P L D 1978 Lah. 1065 and P L D 1981 S C 225 but they are not germane to the facts and circumstances of the case in hand. The former ruling is about the knowledge of the worker about the charges and it has been held that since the worker knew the charges, there was no justification to set aside the punishment on the ground that he was not served with the charge‑sheet. Somewhat same kind of view has been taken by the Supreme Court but the facts of the present case are quite different. As observed above both the parties being under the impression that the matter would be dropped did not seriously contest the case but the employer did not accept the compromise.

3. As a result, partly accepting the appeal, the impugned decision of the learned lower Court is modified to the extent of permitting the appellant to hold fresh inquiry. Question of back benefits would depend upon the ultimate result of the inquiry.

A. E.

Appeal partly accepted.

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