QASIM JAN Versus MANAGING DIRECTOR, INDUS MARBLE FACTORY,PESHAWAR

This judgment will also dispose of Appeal No. 9/1991, Cross Objection No. 21/1991 and Cross‑Objection No. 22/1991 "Anwar Shah v. Managing Director, Indus Marble Factory", "Managing Director, Indus Marble v. Qasim Jan and Anwar Shah" respectively. The appellants have been reinstated in service but the Labour Court refused to grant back benefits and wages, therefore, they have filed appeals claiming back benefits and wages whereas in the cross‑objections the reinstatement of the appellants has been called in question.

2. The background resulting in the litigation between the parties briefly stated is that the petitioner‑appellant was a permanent workman in the establishment of the respondent but was dismissed from service on 30‑7‑1987 and the grievance petition filed by him was accepted by the Labour Court on 8‑2‑1988. It is alleged that the respondent was annoyed with the reinstatement order and in retaliation transferred the petitioner to Swat wherein a branch of the establishment is located. This transfer order was impugned before the Labour Court and during the proceedings before the said Court the employees of the factory also formed a union and applied for its registration. The petition against the transfer order before the Labour Court and the application of the union for registration were further resented by the management and accordingly the appellant‑petitioner was dismissed from service by order dated 28‑8‑1989. This dismissal order rendered the proceedings in the transfer petition infructuous and accordingly the instant petition under section 25‑A of the Industrial Relations Ordinance was instituted to challenge the validity of the dismissal order. The respondent contested this petition and controverted the factual as well as the legal position enumerated in the grievance petition. At the trial petitioner appeared as PW.1 in support of the allegations in the grievance petition and also examined Muhammad Nawaz, Member Union Council as P.W.2. The respondent examined Wiqar Ahmed as RW‑1 in support of his stand. On consideration of the above evidence and the documents brought on record the learned Labour Court held the dismissal order violative of Standing Order 15(4) and accordingly ordered reinstatement of the appellant in service but at the same time the Labour Court concluded that as the petitioner had not complied with the transfer order and failed to perform his duties, therefore, he was not entitled to receive back benefits and wages.

3. The learned counsel arguing for the appellant submitted that the appellant had made an application to the Labour Court for the suspension of his dismissal order but unfortunately that application was kept pending, therefore, on account of this mistake of the Court the appellant could not be held at fault. This argument holds no good because in absence of the suspension of the operation of the dismissal order the appellant was bound to have joined his duties. It has been held in PLD 1990 SC 787 that "where a functionary is kept out of office partly or wholly on account of conduct attributable to him, then in that case the availing of the back benefits does not follow". Keeping in view the rule laid down in the above authority the learned Labour Court was correct in not awarding the back benefits to the appellant. The learned counsel for the cross‑objector while pleading his viewpoint submitted that the Labour Court should have ordered fresh enquiry in the matter after holding that the failure of the appellant to attend to his duties was not correct. However, he was not in a position to refute that no charge‑sheet was issued to the appellant regarding his misconduct and that no enquiry was conducted into the charges of the alleged misconduct. In view of this factual position the provision of Standing Order 15(4) would come into play which says that "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him." It is thus apparent that the mandatory provision of law has been violated and, therefore, the dismissal order was not maintainable. Moreover no useful purpose would be served to order re‑enquiry m the case as by now statutory period of one month for issuance of the charge -sheet relating to misconduct has expired.

4. Resultantly the appeals as well as cross‑objections are dismissed with no order as to costs.

H.B.T./150/Lb.N Appeal and cross‑objections dismissed.