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Petitioner: HYESONS SUGAR MILLS LTD., KHANPUR VS Respondent: MEHAR DIN
1978 P L C 250
1978 P L C 250
[IVth Labour Court Punjab]
HYESONS SUGAR MILLS LTD., KHANPUR
Versus
MEHAR DIN
Appeal No. 96 of 1975 decided on 5th September 1975.
Industrial Relation Ordinance (XXIII of 1969)-----
- S.25-A-Re-instatement-Seasonal worker dismissed on ground of theft after domestic enquiry-Workman re-instated in service by Junior Labour Court on account of technical defect in domestic enquiry Half of back benefits directed to be awarded to such workman, in circumstance, of case.
Khadim Hussain Labour Officer for Appellant.
Mad Saeed for Respondent
DECISION
This appeal has been filed on behalf of the General Manager, Hyeeons Sugar Mills, Ltd, Jetha Bhutta, Khanpur, against the order of the learned Junior Labour Court. Rahimyar Khan, dated tat March 1975, directing reinstatement of Mehar Din, a seasonal worker of the aforesaid Management while accepting his petition in that behalf under section 25-A of the Industrial Relations Ordinance, 1969. The respondent was dismissed from service on the charge of theft of an empty gunny bag belonging to the sugar mills. As a result of domestic enquiry he was dismissed from service by the Management. However the learned lower Court after recording the evidence of the parties concluded that the enquiry against the respondent was conducted in slipshod manner and on that score be was prejudiced in big defence making a room for his re-instatement.
I have heard the learned counsel for the parties and have carefully gone through the record of the domestic enquiry as well as that of the learned lower Court. No doubt a regular enquiry was made against the respondent by the Management but could not be found free from some inherent defects making for a prejudiced to the defence of the respondent. Firstly it has been the stand of the respondent that one Ghulam Nabi wag put as his representative during the proceeding of the enquiry who was not at all accepted by him as his representative. The enquiry officer did not record the statement of the respondent to show his acceptance in fhb connection nor the said representative was appointed on the basis of any writing secured from the respondent. In such situation it was further necessary for the enquiry officer to record a statement of the respondent waiving his right of cross-examination which is of course most essential part of evidence in any enquiry. In the present case not a single witness was cross examined by the respondent nor it is written anywhere at the end of the statements of the prosecution witnesses that the respondent despite being given opportunity of cross-examination did not come forward with any questioning. In the absence of the test of cross-examination when the respondent did not expressly waive his right in that behalf the domestic inquiry cannot be said to have been conducted without prejudice to the respondent's defence. On this view of the matter I find myself in agreement with the learned lower Court in directing the re instatement of the respondent. However this re instatement could not be ordered without the condition of necessary limit in view of the respondent being admittedly a seasonal worker. This fact has been admitted by him in his statement in the learned lower Court as well se in this Court during the arguments. According to the service certificate shown to me by him he has been during the past years working in the appellants mills for the crushing season for a period ranging from five to eight months each year in the present case he may be deemed to have been the employee of the mills for a period of six months on average basis. He was appointed as a seasonal worker with effect from 10th of November, 1973, and could have normally served the management as a seasonal worker up till 10th of May, 1974. However it has been pleaded on behalf of the appellant that crushing season of the mills is generally closed in March. The appellant every year has placed on file, a copy of the appellate official communication dated 4th March 1975, issued by the Management in this behalf addressed to as many as forty-six offices of the government. According to this communication the crushing season of 1974/1975 was officially closed by the Management with effect from 15th March 1975. No similar communication could be referred to or produced in any form for the year 1973/74 which is relevant in his case. The reason able conclusion would be that the respondent would have been terminated in accordance with the official date of the closure of the crushing season communicated by the Management in a manner similar to that embodied in the aforesaid communication in the absence whereof the respondent would be deemed to have been the employee of the mills till 10th May, 1974.
In the background of the above circumstance the respondent would be deemed to have been reinstated in service as a seasonal worker to remain the employee of the appellant Management till the date ~ announced by it in the aforesaid manner through its official communication or till the date fixed on average basis i.e. 10th May. 1974. As for the back benefits it is to be noted that the respondent did not work for the Management during the period of unemployment besides having been re-instated in service on account of a technical defeat in the domestic enquiry. He is therefore directed to be awarded half of the back benefits which he would have otherwise re ceived as a seasonal workman. The appeal is disposed of accordingly. The file may be consigned.