1986 PLP 1006 (PLC)

"It stands established on higher authorities, that, employer is bound to supply the copy of the report, to the worker, before passing .final order, on the enquiry against him. Even, under Standing Order 15(4), the employer is under legal obligation, to supply the copy of the enquiry report."

14. And, His Lordship referred the case of Punjab Road Transport v. Labour Appellate Tribunal, and observed:‑ "It is held by the Supreme Court of Pakistan, that, not only the respondent should have been furnished with the copy of the enquiry report. but also should have been given an opportunity of show cause "

15. With these decisions, after examining the record of this case, I find that the dismissal order, issued hurriedly, shows, that, the management, having been fully aware of the law prevailing, did not B follow this provision, so also the approval of the employer is the important requirement, which was not followed and Mr. Haji Farid's position was no more than a Manager, not notified even as manager, under the Factory Act, for the purpose of invocation of the jurisdiction, as employer.

16. The second point, which has been emphasised, is, that, Mr. Khan Bahadur desired nomination of the worker, but, he was not allowed, simply on this ground, that, Muhammad Gul or Ziarat Gul, were the dismissed employees. There is no dispute to the proposition, by Mr. Haji Farid, that, the proviso is clear, to the effect, that, the worker should be in the establishment, for entitlement as the nomination of choice. In this context, I have seen the copies of the judgments, produced by Mr. Haji Farid of Muhammad Gul, and the dates are relevant. No doubt, that, dismissal has been confirmed by Sind Labour Appellate Tribunal, and the charge‑sheet, which was served in 1981, Mr. Muhammad Gul was in active service, of which, there were instances of absence, against Khan Bahadur and the last decision, which has been given in March, 1983, when, on 24th of January. Mr. Khan Bahadur was called with his witnesses, he was still contesting the appellate proceedings. The Court, therefore, is of the view, that, competency of the nomination of Muhammad Gul was not lost because the appeal was also the continuation C of the original proceedings, under challenge, and the charge‑sheet, which was served in 1985, Mr. Muhammad Gul had not severed relation. Therefore, the worker to be deprived of the choice, to put up his case, is justified, that, refusal was unwarranted and in this Court's opinion, I agree with him.

17. Apart from these legal defects, which are affecting the enquiry, as to the fairness, it is contended, that, the dates of hearing, which are relevant, were 24th January, 1983, 29‑1‑1983 and finally 2‑2‑1983, when the proceedings started. Mr. Khan Bahadur produced the questions along with the earlier statements and made such request of the change of the Enquiry Officer, and, requested for nomination.

18. I have examined the record very minutely, whether the witnesses of the petitioner Khan Bahadur, were not allowed, which was his grievance. The contention of the respondent is, that, he was delaying the matter, by request for change of Enquiry Officer, which was allowed and request for nomination was disallowed. And, then refer to the letter, that, the date of 29th, which was given by the management, was again changed to 2nd, and why it was so? The letter of 27th I have read. The management has wrongly interpreted this letter, to show, that, Khan Bahadur himself delayed the matter, by asking for time. The context of the letter shows, that, he simply made prayer that, after the close of the prosecution,"' he should be given some time, to prepare his defence and unnecessarily, the date of 29th was changed to 2nd.

19. The next question now, will be, I whether on 24th, Mr. Khan Bahadur was present with his witnesses, he has clearly stated so. I refer to the certain extracts of the respondents witness Mr. Abdul Wajid Khan, who is the Enquiry Officer and Mr. Haji Farid, who is the General Manager. There are number of points, to take critical view, of the straightforward conduct of the management witness, for example, what has suited to them, they have replied and what has not suited to them, they have shown ignorance of the fact. It is not the question of negative assertion. It is said as follows:‑ "It is incorrect to suggest that Muhammad Gul, Ziarat Gul, Ejaz and Muhammad Rehman, were present, with the applicant. I know that the management did not allow their entry in the mill, as all the 4 said workers are dismissed workers. I also did not permit them to enter into the factory, apart from the management, which has written letter, that, 4 workers will not enter into the factory."

20. At the next place, Mr. Abdul Wajid says, that, I did not know that the applicant submitted medical certificate on 31‑7‑1981, though according to the supervisor, he has attended his duty on 30th July, 1981. I did not know, if the applicant was elected as the office‑bearer of the union. It is correct, that, we had received the application by post, for supplying the copy of enquiry proceedings and the enquiry report, but I did not supply to the applicant.

21. What Mr. Haji Farid has said, "it is incorrect to say that applicant attended duty on 31st July, 1981. It is incorrect to suggest that, applicant brought Social Security Certificate. I do not remember, if the applicant had weekly rest on 1st August, 1981. I do not remember, whether the mill was closed, due to the festival holidays, on 2nd, 3rd and 4th of August.‑It of correct, that, he attended duty on 5th, 6th, 7th and 8th. I admit that he was on medical leave, from 27th to 29th and on 30th of July, and was declared fit, on 31st July, for duty. The charge‑sheet was issued on 11‑8‑1981. We did not allow Muhammad Gul to sit as representative, and the applicant participated in the enquiry and produced the pre‑written statement of the witnesses. It is correct, that Muhammad Gul, Ziarat and Ejaz were in employment of the company. It is incorrect to say, that, Ziarat, Muhammad Gul and Ejaz had come at the factory gate, an they were not owe to enter into the mill.

22. With this background of the evidence, and minute examination of demenour of the witnesses, and to the quality of evidence, they have offered, there is difference between the evidence of Haji Farid and Mr. Abdul Wajid, who states, that, he did not allow witnesses to enter and Haji Farid states, that, they were not present at all. Although negative has been used, but the context, in the manner, they have given the answers, suggested very strongly, that, the witnesses had come on 24th and dates were being changed and, finally, on the second, they did not turn up, and, therefore, Khan Bahadur produced the written versions, of previous record. And, I see no reason, why they should remain absent. I see no reason, why 29th was changed. I see no reason, why the Enquiry Officer was changed, when there were clear directions of the Tribunal, for simply holding fresh enquiry. But, even if there was change, which shows the part of grace, still the responsibility of delay lies on the management. And quite clear, the ignorance of the fact that management did not know that Khan Bahadur was not the office‑bearer and they do not remember, cannot be the correct version, because, the questions put in the cross‑examination; clearly suggest that the management was fully aware, what was happening. For example, the question is put: Is it correct that office‑bearer and the applicant had given application in this Court, for acceptance of the change in the year 1981? The answer is that, the applicant filed appeal against the order of Registrar of Trade Unions, which was dismissed and there was also writ petition, to stay the elections. The obvious indication is, that, this fact of office‑bearers and the activities of the union, could not be behind the knowledge of the management. So, I am not satisfied that Khan Bahadur was given the fair chance of enquiry, when even, my predecessor;, in earlier order, had made observation.

23. As regards, the charge‑sheet, which is very important document, the managements shows his absence from 31‑7‑1981, for 10 days and other absences of the year 1979, onwards and the last is 30‑6‑1981.

24. In the first place, the previous instances of charge‑sheet must have been the basis of charge‑sheet, within one month of the allege cause of action, which has not been followed. At the most, it should be read as evidence, to show, the previous conduct, that, he was receiving warnings.

25. Regarding 10 days absence, which is the basis of charge‑sheet, from 31‑7‑1981, Khan Bahdur has explained, that, he was present on 31‑7‑1981 and there were 3 festival holidays, on 2‑8‑1981, 3‑8‑1981 and 4‑8‑1981 and on 1‑8‑1981 and 8‑8‑1981, there was weekly rest.

26. Mr. Haji Farid has explained in this manner:‑ "I do not remember, whether the mill was closed, due to festival holidays, on 2nd, 3rd and 4th of August, 1981. It is not true, that, he attended duty on 3‑6‑1978." 26‑A. By this answer, the Court finds, that, if Haji Farid is General Manager, he is not in a position to say, whether, the mill was closed on festival holidays, or not closed. His ignorance of the fact is not the straightforwardness, but, his own witness admits, that, on 2nd, 3rd and 4th of August, 1981, there were Eid festival holidays, in the mill, and, it was displayed on the Notice Board. Naturally, the notice must have been affixed with the consent of the General Manager, and more prominently, it is admitted by the witness, that, weekly rest days and the festival holidays are considered as leave and also admits, that, weekly rest day on August 1st, was the weekly rest day and the applicant was called to work overtime.

27. So, with this background, the Court is of the view, that, if it was leave, then, 10 days have not passed to show his habitual absence, in the active working days. Of course, the applicant has not explained what happened after 4‑8‑1981, but since 10 days had not passed, which is the main charge, of which he was to answer, the charge‑sheet is defective and it should be disclosed very clearly in the charge‑sheet, as to the clear days of working mentioning the intervening days, as festival holidays, which Mr. Haji Farid, General Manager himself was not sure.

28. So far Khan Bahadur is concerned, I also find that his record has also not been pleasant, by taking leave etc., and not produced satisfactory evidence, to show, that, from 31‑7‑1983, after 5th, he was on duty. But, his explanation is that, he was stopped on the gate, by issuance of letter which he has explained in para.

14. Similarly, he has denied, that, he had received any warning from the management, before 11‑8‑1981, when he was charge‑sheeted.

29. I have also further examined the Register of holidays, the column of absence has not given the clear indication of the years, he has remained absent, but the absence, which is the basis of charge‑sheet, for the purpose of this case, I hold, that, the charge of 10 days is not satisfactorily established, and, also, the previous instances of absence as pointed in charge‑sheet, whether was served within one month of the alleged cause of action. Similarly, clause (3) of Standing Order 15, is not attracted for omitting to mention festival holidays, and the weekly rests.

30. Finally, the legal defects are more prominent, to hold, that, the enquiry was not fair by the management, and so is the observation of also, my predecessor, in the earlier judgment.

31. Above all, the approval of the employer, and the omission to give the enquiry report and personal hearing are the serious departures, from the enquiry rules, and I find now, that, no purpose again will be served, by holding against enquiry, because each time the petitioner's version is that, the management is putting obstructions, in the proceedings. Although, this factual aspect of obstruction is difficult to be resolved, as the Presiding Officer is not present at that time, but the circumstantial evidence points out strongly, that, it is the fault of the management lower subordinates.

32. In the result, the application is allowed, for re‑instatement with back benefits, subject to this qualification that he will not be entitled for the period of absence, after availing the festival and weekly rest. But, if the leave is outstanding, in his account, the management can consider.

33. It may also be mentioned, that respondent has referred notification, in his course of arguments, regarding leave, what were the festival holidays, but the evidence has shown, that the witness of management has admitted that mill was closed on festival holidays, on 2nd, 3rd, and 4th August, 1981.

34. Finally, the arguments, regarding citation of rulings, given by the respondent, forms part of this judgment. A. A. Application allowed.