1988 PLP 690 (PLC(CS))

Date of hearing: 2nd August, 1987. These are two appeals filed by Messrs Prince Glass Works Ltd. Karachi, against the two impugned orders, passed on 5‑12‑1984, by the Sind Labour Court No.IV, Karachi, who had allowed the grievance petitions of the respondent workers, under section 25‑A, I.R.O. 1969, directing their re‑instatement in service with full back benefits. As the facts and circumstances in both the cases are common and similar, therefore, I would decide both the appeals by this single decision.

2. Brief facts of the cases are that the respondents were permanent workmen of the appellant establishment as Furnace Operators. Both the respondents claimed that as they were agitating against the injustices being done with them, therefore, the appellant establishment and the members of the C.B.A. Union were not happy with their action and that in conspiracy with one Abdul Qayum, Head Furnace Operator, had succeeded in issuing a false and fabricated charge‑sheet against them alleging therein that both of them had committed physical assault on Abdul Qayum when he wanted to enter in the factory on 21‑7‑1982, to inspect the blowing furnace. Further, they claimed that they were not given full opportunity to defend themselves and that the enquiry was not fair and legal resulting in their illegal dismissal of services. Both the respondents claimed that their grievance notices as well as the petitions were within time.

3. The case of the appellant establishment was that no injustice was being done with the respondents and that none of them was an office‑bearer of the C.B.A. Union. The case of the appellant establishment was that on 21‑7‑1982 at about 11‑30 p.m. both the respondents had committed physical assault on the Head Furnace Operator, Abdul Qayum, when he wanted to enter into the factory to inspect the blowing furnace on receipt of a report that no furnace operator was on duty. That on receipt of the report of the misconduct, both of them were charge‑sheeted and after affording full and fair opportunity to appear in a domestic enquiry, they were dismissed from service. The case of the appellant establishment was that the grievance notices of the respondents were time‑barred, therefore, the grievance petitions were not maintainable, hence liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and were duly cross‑examined. Thereafter, the learned Labour Court had passed the impugned orders, hence the present two appeals.

5. I have heard Mr. Mahmood A. Ghani, the learned counsel for the appellant establishment and Mr. Ali Amjad, the learned Advocate on behalf of the respondent workers and have also carefully perused the record and proceedings of the cases. It is an admitted position that there was a settlement between the management and the C.B.A. Union under which certain benefits and facilities were given to the workers of the appellant establishment to their satisfaction. The respondent, Ishtiaq Hussain has admitted in ‑his cross‑examination that he was present at the factory gate at 11‑30 p.m. on 21‑7‑1982 and? that Abdul Qayum was not only Head Furnace Operator, but, he was??????? also President of the C.B.A. Union and that he did not submit reply to the charge‑sheet. He further admitted that on his own request, enquiry officer was changed and that he was given copy of the complaint and the intimation of the enquiry. Somewhat same admissions were made by the other respondent, namely, Afsar Hussain. There is an admitted fact on record that respondent, Afsar Hussain was not interested in his case as he had got employment in Saudi Arabia and that during the pendency of the present appeal before this Tribunal, Afsar Hussain had submitted his resignation from Saudi Arabia on 28‑7‑1985. Mr. Mahmood A. Ghani, the learned counsel fort the appellant establishment has pointed out that in the impugned order, there is an observation of the learned Labour Court that the demand of nomination of a co‑worker in the domestic enquiry was rightly refused by the appellant management and that the management had shown sufficient patience to give chance to both the respondents to produce defence and that the responsibility of the delay was on both the respondent workers and not on the appellant management. Mr. Mahmood Ghani, the learned counsel for the appellant establishment has argued that it is an admitted position that the respondent workers had assaulted Abdul Qayum on 21‑7‑1982 and that from 22‑7‑1982 to 25‑7‑1982, there were Eidola Fitter holidays, therefore, the complaint against the workers was lodged on 26‑7‑1982 and so, the charge? sheets, dated 27‑7‑1982 were proper and well within reasoning time. In support of his arguments, he has submitted that in terms of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the charge‑sheet is to be given within one month of the alleged misconduct, while, in the present case there is a delay of only 6 days, certainly on account of the holidays of Eidul Fittar. The next argument of Mr. Mahmood A. Ghani was that even if one witness, is reliable witness, his evidence can be acceptable as true by the enquiry officer. In this behalf, he has relied upon a case reported in 42 F J R page 97 at page 98 of Supreme Court of India. As regards to the point of nomination of a co‑worker in the domestic enquiry, Mr. Mahmood A. Ghani, has relied on a case reported in 1.984 P L C page 446 at page

448. On the point or misconduct, Mr. Ghani has pointed out that from the evidence brought on record, the act of misconduct was fully established against the respondent workers. He placed reliance on the cases reported in 1986 P L C page 515 at page 516, 1985 P L C 570 at page 573, 1960 P L C page 439 at page 458 and 1986 P L C page 113,1 at page 1133. Mr. Mahmood A. Ghani, the learned counsel for the appellant establishment has submitted that it was incorrect to say that the enquiry was ex parte hence not reasonable. He has submitted that in the case of Muhammad Ishtiaq, admittedly six adjournments were given to him at his own request, while in the case of Afsar Hussain, there is an admitted position that he fully participated in the same therefore, 8 the enquiry officer, under the circumstances, was correct in holding ex parte enquiry and finding the respondents guilty of the misconduct. In this behalf he has referred me to the cases reported in 1985 PLC page 416 at page 418; 1980 P L C at page 610; 1983 PLC page 94 at page

96. As regards the point of inferior evidence brought on record, as has been observed by the learned Labour Court, Mr. Mahmood A. Ghani has submitted that the evidence of Abdul Qayum was supported by the witnesses, Zaman Khan and Shamsul Haq who have fully corroborated the evidence of Abdul Qayum. He argued that the learned Labour Court was incorrect to apply abstract principle or standard of criminal prosecution in the conduct of the domestic enquiry. On this point reliance is placed on the cases reported in 1977 P L C at page 148, 1980 P L C page 178 at page 179, 1984 PLC page 576 at page 579 and 1985 P L C page 107 at 108; and 1969 P L 'C at page 815.

6. On the other hand, Mr. Ali Amjad, the learned Advocate for the respondents has reiterated his arguments which he had submitted before the learned Labour Court. In view of the above facts, circumstances and legal authorities, I am of the view that the learned Labour Court was not correct in passing the impugned orders. The charge of misconduct against the respondent is fully established in a proper, fair and lawfully held enquiry officer, 1, therefore, hold that both the respondents were rightly dismissed from service by the appellant establishment and for this reason, their grievance petitions before the learned Labour Court were not maintainable, hence, the impugned orders are liable to be set aside.

7. For the reasons stated by me above, I would set aside the impugned orders and would allow both the present appeals. The p grievance petitions of both the respondents are hereby dismissed. The amount of back benefits deposited before this Tribunal by the appellant establishment be returned to them forthwith. A.E. /108.8/Lb.S????????? Appeals allowed.