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Appeal No. LHR‑425 of 1985, decided on 5th February, 1986.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑
‑‑‑S. 15 (3)‑‑Misconduct‑‑Late arrival‑‑Does not amount to misconduct.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑
‑‑‑S.a. 15 (3) & (4)‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Multiple charges‑4only one of several charges levelled amounting to misconduct‑‑All charges established in inquiry‑‑Dismissal order based upon findings of enquiry‑ Possibility not excluded that employer might have prescribed lessor punishment if Enquiry Officer had found accused guilty of charge which amounted to misconduct‑‑Dismissal order, in circumstances, 'held, not sustainable hence set aside‑‑Back benefits refused.
‑‑‑Ss. 25‑A, a 38(3)‑‑Grievance petition against dismissal for misconduct‑‑labour Court has to go into merits also‑‑Production of enquiry proceedings before Labour Court would be essential enabling Court to see whether enquiry was conducted properly‑‑Order of Labour Court in absence of such record, in circumstances, set aside by Appellate Tribunal.
(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑
‑‑‑S. 1 (4)‑‑Applicability of Ordinance‑‑Lahore Development Authority Working under Lahore Development Authority Act, 1975, held, was within ambit of Ordinance.
Muhammad Shaukat Hashmi for Appellant.
Mahboob Ahmad for Respondent.
Date of hearing: 22nd January, 1986.
The decision, dated 6‑7‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged, whereby the grievance petition of the appellant for his re‑instatement in service has been dismissed.
2.The allegation against the appellant as per charge‑sheet Exh .P .l were that he was absent from 1‑6‑1978 to 5‑6‑1978, that he was asked to work at Sanda Tubewell II from 7‑6‑1978 to 9‑6‑1978 but he refused, that he was asked to discharge duty at Sanda Tubewell I in second shift but was never in time there, that whenever he was asked to perform duty properly he misbehaved with Sub‑Engineer Incharge and lastly that he remained absent from 21‑6‑1978 to 21‑7‑1978. The first allegation does not constitute misconduct as absence was for five days only. So far as this allegation is concerned that the appellant refused to work at Sanda Tubewell II from 7‑6‑1978 to 9‑‑6‑1978, it is not mentioned who had directed him to do so. Disobedience of lawful order of his Incharge could constitute misconduct but it is not mentioned who had ordered him, so the allegation does not amount to misconduct. The allegation that the appellant did not do duty in time at Sanda Tubewell I in second shift too does not constitute misconduct as late coming is not misconduct according to Standing Orders Ordinance, 1968. The allegation is vague that whenever he was asked to work properly, he misbehaved as no specific occasion is mentioned. Only the last allegation that he remained absent 'from 21‑6‑1978 till the date of charge‑sheet constituted misconduct. Since the Inquiry Officer held the appellant guilty of all the charges including the ones which did not constitute misconduct and the dismissal order, which is not on the: record, must l have been passed, according to the inquiry report, the dismissal order is not sustainable. If the Inquiry Officer had found the appellant guilty of last charge only, the possibility cannot be excluded that the employer may have prescribed some other kind or punishment short of dismissal from service.
3. The other defect which hits at the root of the dismissal order is that the inquiry proceedings were not produced before the learned lower Court. The learned lower Court wrongly says that both the parties were at fault in not bringing on record the inquiry proceedings. The inquiry proceedings were in the custody of the respondent, so they were to be produced by it. Apart from it the respondent had to show that the inquiry was held properly and opportunity of cross examination and defence was adequately afforded to the appellant. According to section 25‑A (5) Labour Courts have to go into the merits c of the case also. Without the presence of the inquiry proceedings and the record of evidence produced there, the Counsel cannot scrutinize if by the material brought on the .record, the charges stood established or not.
4. The learned lower Court has wrongly held that Standing Orders Ordinance, 1968 is not applicable to the respondent. There are two conditions given in second proviso to section 1 (4) (c) of the Ordinance.1 One is that the establishment must be running by or under the authority D of the Government and the other is that it should have its own statutory rules of service. L.D.A. is an autonomous body and is not working by or under the authority of L.D.A. Act. Authority of an enactment is not so weak that it may require the authority of any other sovereign body like the‑Government. So, the learned lower Court wrongly dismissed the grievance petition of the appellant.
5. As a result the appeal is accepted and getting aside the impugned decision, the appellant is directed to be re‑instated in service. He is not entitled to back benefits as he has more or less succeeded on the ground that out of the charges only one charge amounted to misconduct.' So, 1981 P L C 984 applies.
A. E.
Appeal accepted.
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