1988 PLP 213 (PLC)

Applicant was permanent employee in the respondent establishment. On 27‑1‑1986 he was charge‑sheeted (Annexure A‑1 to the grievance petition) that on 23‑1‑1986 at about 2‑00 p.m., he collected other workers of Casting Department and led procession to the office of the Factory Manager. That the applicant and the members of the procession were raising solgans and were using abusive language against the Factory Manager. The applicant was charged of gross misconduct. Applicant submitted reply to the charge‑sheet (Annexure A‑3 to the grievance petition), but the reply did not find favour with the management and Mr. Ansar Ahmed Khan Personnel Officer was appointed as Enquiry Officer. It is submitted by the applicant that copy of the original complaint was not supplied to him, however, he participated in the enquiry but the conduct of Enquiry Officer was not above board, hence he made representations to the Management that he had no faith in the aforesaid Enquiry Officer The enquiry was partly conducted by Mr. Ansar Ahmed Khan, thereafter vide letter dated 6‑5‑1986 (Annexure 'A' 21' to the grievance petition) the applicant was informed that as Mr. Ansar Ahmed Khan had left the service of the Respondent, as such Mr. Shamim Ahmed Manager Klin was appointed as Enquiry Officer. The rest of the enquiry was conducted by Mr. Shamim Ahmed. Finally as a result of the aforesaid enquiry, the applicant was dismissed from service vide dismissal order dated 14‑7‑1986 (Annexure A‑36 to the grievance petition). On 21‑7‑1986, the applicant sent grievance notice (Annexure A‑37 to the grievance petition) and its reply was received (Annexure A‑39 to the grievance petition). Finally present grievance petition was filed for re‑instatement in service with full back benefits. Lengthy reply statement was filed by the Management wherein it was averred that the allegations leveled in the grievance petition were false. It was urged that independent and impartial enquiry was held against the applicant. It was denied that the applicant was victimised for his trade union activities. It was maintained that the applicant was found guilty of gross misconduct as such the impugned dismissal order was issued against him. Applicant Faqir Muhammad filed his affidavit‑in‑evidence and produced no other witness. On behalf of the Respondent affidavit‑in‑evidence of Syed Shahid A. Jafri, Personnel Manager was filed. After hearing both the learned counsel, I have reached to the following conclusion. The learned counsel for the respondent raised preliminary legal objections that the factory of the respondent where the applicant had been serving throughout the tenure of his service, is located within the jurisdiction of Manghopir Police Station. That the charge‑sheet Annexure A‑1 to the grievance petition was also issued and signed by the Factory Manager of the aforesaid factory. That the subsequent correspondence was exchanged between the applicant and the Factory Manager. He submitted that as the factory is located within the jurisdiction of Manghopir Police Station, as such this Court had no jurisdiction to proceed with the present grievance petition and it should have been filed in Labour Court No.1 having jurisdiction over Manghopir Police Station. The learned counsel for the respondent raised another legal plea that the grievance notice Annexure A‑37 to the grievance. petition has been addressed to the General Manager at the Head Office of the respondent, and that it should have been addressed to the Factory Manager. I have perused the reply statement and it is noted that such legal objections have not been raised therein. Anyhow, there is settled A law that the legal plea can be raised at any stage of the proceedings, hence before going to the merits, the legal objections are hereby disposed off. The learned counsel for the applicant submitted that no evidence has come on record to establish that the Factory at Manghopir was running as a separate entity. He invited my attention to the impugned dismissal order A‑36 to the grievance petition and submitted that the same has been issued by the Head Office at Clifton. The learned counsel for the applicant urged that since the dismissal order Annexure A‑36 to the grievance petition was issued by the Head Office, hence the grievance notice was also to be sent to the present respondent who was the real employer of the applicant. In view of the fact that the impugned dismissal order was issued by the Head Office, and there is no evidence on record to show that the factory at Manghopir was running as an independent entity, I do not find any force in the legal objections that the I grievance notice was to be given to the factory Manger. For the same reason it is also held that as the Head Office of the respondent is within the territorial jurisdiction of this Court, hence the grievance petition has been filed before the proper forum. On merits the learned counsel for the respondent submitted that the dismissal of the applicant is based on the basis of the evidence recorded in the domestic enquiry. He challenged the domestic enquiry on the following grounds:‑ (a) Initially Mr. Ansar Ahmad Khan, Personnel officer was appointed as Enquiry Officer, and he conducted enquiry till 15‑2‑1986. Thereafter no enquiry took place till 13‑5‑1986 when abruptly fresh Enquiry Officer Mr. Shamim Ahmed, Klin Manager was appointed and he conducted the remaining enquiry. (b) That previous Enquiry Officer Mr. Ansar Ahmed Khan moved an application dated 19‑3‑1986 Annexure A‑19 to the grievance petition to the Director Labour (West) whereby he fully explained that the present applicant has been falsely involved in the present incident and was being victimised by the Management. The result was that Ansar Ahmed Khan was removed from service by the Management. (c) That admittedly contents of charge‑sheet Annexure A‑1 to the grievance petition indicate that the alleged incident had taken place in front of the office of Klin Manager. That evidence has come on record to show that the Klin Manager i.e. Mr. Shamim Ahmed was witness of the incident, hence in any case he was incompetent to conduct enquiry against the applicant. (d) That Mr. Shamim Ahmed, Enquiry Officer also placed reliance on the statements recorded by previous Enquiry Officer Mr. Ansar Ahmed Khan. But in view of the application Annexure A‑19 to the grievance petition moved by Mr. Ansar Ahmed Khan before the Director of Labour (West), no reliance could have been placed on the statements recorded by Mr. Ansar Ahmed Khan. The learned counsel for the applicant placed reliance on 1984 P L C 211 and 1184 whereby it is held reliance placed by the fresh l, Enquiry Officer on the statement recorded by the previous Enquiry Officer is not proper. The learned counsel for the applicant also quoted 1976 P L C 779 wherein it is held that an eye witness of the incident cannot be held to be an independent Enquiry Officer. I have examined the enquiry proceedings in the light of the submissions made by both the counsel. Annexure A‑19 is the Photostat copy of an application dated 19‑3‑1986 moved by Enquiry Officer Mr. Ansar Ahmad Khan before the Director Labour (West) Karachi. Paragraph No.3 of the aforesaid application Mr. Ansar Ahmed Khan mentioned as under:‑ "Another 3 charge sheets have been issued to Messrs Faqir Muhammad, Jalilur Rehman and Mukhtar Khan, fake and false complaint of Casting Assistant Manager, with the collaboration of Mr. Sulman Aziz, Factory Manager (Sanitary Ware). The enquiry of these 3 cases are entrusted to me but the files etc. are kept by the Manager Personnel himself and charge etc. made in it according to his free will. He has dictated terms many times but I did not follow his instructions and thus I have been given following cash losses uptil now." Mr. Ansar Ahmed Khan has also quoted various other instances of unfair labour practices by Mr. S.A. Jafri, Personnel Manager of the respondent. Obviously it appears that as a result of the moving of application Annexure A‑19 before the Labour authority, the Management got annoyed and terminated the services of Ansar Ahmed Khan. Consequently Mr. Shamim Ahmed, Klin Manager was appointed as Enquiry Officer who completed the enquiry. As already quoted above, the learned counsel for the applicant contended that an eye‑witness could not be appointed as Enquiry Officer. The learned counsel for the applicant further submitted that D the perusal of the charge sheet clearly indicates that the alleged incident had taken place in front of the office of the Klin Manager i.e. Mr. Shamim Ahmed. Furthermore, the witness of the respondent Mr. Shahid Jafri admitted in cross‑examination that Klin Manager i.e. Mr. Shamim Ahmed was present in his office at the time of the incident. The learned counsel for the respondent could not effectively rebut the points raised by the learned counsel for the applicant in respect of the manner in which the domestic enquiry was conducted. In view of the application Annexure A‑19 to the grievance petition moved by previous Enquiry Officer Mr. Ansar Ahmad Khan, I have come to the conclusion that the charge leveled against the applicant is highly doubtful. Furthermore, the domestic enquiry could not be treated as fair and impartial because admittedly Mr. Shamim Ahmed, Klin Manager was the eye witness of the disputed incident. As such he cannot be considered to be an independent and impartial Enquiry Officer. It may be pointed out that the witness of the respondent Mr. Shahid A. Jafri has admitted in the cross‑examination that Annexure A‑19 to the grievance petition bears the signature of Mr. Ansar Ahmed Khan. In view of the above discussions, I am of the opinion that independent and impartial Enquiry was not held against the applicant, as such any punishment based on such enquiry cannot be sustained. Furthermore, this Court also cannot place reliance on the evidence recorded in the aforesaid enquiry for the foregoing reasons. As regards the main incident, the respondent neither produced complainant Mr. Shakeel Ahmed nor the Enquiry Officer Shamim Ahmad, nor any other eye‑witness to establish that the disputed incident had actually happened the manner as alleged by the respondent. On the other hand the complaint of Mr. Ansar Ahmed Khan Annexure A‑19 to the grievance petition made to the Labour Department indicates that the charge against the present applicant and some other workers was fabricated by the management. The respondent produced only one witness i.e. Mr. Shahid A. Jafri, Personnel Manager, but he is not an eye‑witness of the disputed incident. As such it is obvious that the respondent has failed to convincing evidence before this Court to establish that the' alleged act of misconduct was committed by the applicant. In view of the above discussion, I am inclined to allow the present grievance petition, as such the impugned dismissal order dated 14‑10‑1985 is hereby set aside and the respondent is directed to re‑instate the applicant in service within 15 days of the date of this order, with full back benefits. A.E. /1045/Lb. S Petition allowed.