1982 PLP 875 (PLC(CS))

S. M. Yaqoob for Respondent. Date of hearing: 13th February, 1982. The appellant, who was employed as a crane driver in the respon dent company, was issued a show‑cause notice, dated 13th February, 1979 in respect of an incident which is said to have occurred on 13th February, 1979 at about 2.00 p. m. in the office of P & I R Manager, in which he is said to have quarrelled, misbehaved with and abused Mr. S. Wajid Ali. Supervisor. This show‑cause notice was based on the complaint of S. Wajid Ali, made on 13th February, 1979 to the General Manager in which he asserted that on the said date, the appellant had abused him, assaulted him and taken out his shoes for the purposes of attacking him. The incident, according to the complaint of S. Wajid Ali was witnessed by Mr. Bhatti, Mr. Rafiq Ahmad, Mr. Ghulam Akbar and Mr. Hashmi. As the reply of the appellant to the show‑cause notice was not considered satisfactory Major (Retd.) Iqbal A. Khan, Manager Services Co‑ordination, in the respondent company, who had issued the show‑cause notice to the appellant was appointed as the enquiry officer. He started the enquiry proceedings on 20th February, 1979 and concluded the same on 7th March, 1979. On the basis of his findings that the appellant was responsible to initiate the whole incident by first abusing and misbehaving with Mr. Wajid Ali, the appellant was dismissed from service, vide order of the Managing Director, dated 26th March, 1979. The said dismissal order was passed after a second show‑cause notice was issued to the appellant and the appellant's reply thereto was considered unsatisfactory by the manage ment. The appellant challenged the orders of his dismiss before the learned IInd Labour Court through a grievance petition under section 25‑A, I. R. O. The learned Labour Court, by its decision, given on 29th May, 1980 dismissed the appellant's grievance petition, holding that the charge of, misconduct had been duly established against the appellant. Dissatisfied with the said decision, the appellant preferred an appeal against the same. This Tribunal, by its order dated 6th October, 1980 was of the view that as Major (Retd.) Iqbal A. Khan had issued the show cause notice to the appellant he had unfortunately allied himself with the proceedings against the appellant and, therefore, appeared to be ineligible for appointment as enquiry officer. On this view of the matter, this Tribunal set aside the decision of the learned Labour Court and directed the respondent company to re‑instate the appellant in service but gave an option to the company to hold a fresh enquiry by an independent enquiry officer on the basis of the show‑cause notice, dated 13th February, 1979. The said order of this Tribunal was challenged by the respondent company in a Constitutional Petition to the High Court, which has reversed the said order and remanded the case to this Tribunal to re‑hear the same afresh and to give its finding as to whether from the enquiry report or from his finding any prejudice/bias or pre‑determined can be attributed to Mai or (Retd.) Iqbal A. Khan. 2. I have heard Mr. M. L. Shahani, the learned counsel for the appellant, and Mr. S. M. Yaqoob, who appeard for the respondent company. Mr. Shahani has attempted to show prejudice/bias on the part of Major (Retd.) Iqbal A. Khan on 3 counts, firstly, that he had cross‑examined and put certain questions to the defence witnesses, the replies to which had been made by him the basis for rejecting their evidence, secondly, that Major (Retd.) Iqbal had refused to record the evidence of a defence witness produced by the appellant, and thirdly, that the record of the enquiry and the memos. issued by Major (Retd.) Iqbal to the appellant indicate prejudice/bias on the part of Major (Retd.) Iqbal A. Khan against the appellant. 3. In all 7 defence witnesses were examined by the appellant in the domestic enquiry, namely, Kote Khan, Muhammad Aslam. Shah Rawan, Dilawar Khan, Taj Muhammad, Sultan Khan and Durrani Khan. No question were asked by the enquiry officer from Kote Khan, who was the main defence witness. Similarly no questions were asked by the enquiry officer from defence witnesses Dilawar Khan and Durrani Khan. The only question asked from defence witness Muhammad Aslam was as to the number of persons which according to him had gathered outside the office where the incident in question had occurred. Similarly, defence witness Shah Rawan was asked by the enquiry, officer only about the number of persons, who had gathered outside the office and the reasons why Kote Khan had caught hold of complainant Wajid Ali. The sole question which was put by the enquiry officer to witness Taj Muhammad was if he could give the names of the, persons who were present and had witnessed the incident, Similarly, witness Sultan Khan was asked by the enquiry officer only his reason for coming to the place where he had wit nessed the incident. None of the questions put by the enquiry officer to the aforesaid defence witnesses would appear to indicate any bias/prejudice against the appellant on the part of the enquiry officer. In fact, even under the Evidence Act, which is not applicable to domestic enquiries, very wide powers have been conferred on Courts to put questions to witnesses. In the case of Messrs Mughal & Sons v. Hindok (1980 P L C 600) the order passed by the Commissioner Workmen's Compen sation, was sought to be assailed on the ground that the claimant work man bad been cross‑examined by the Commissioner. It was held by this Tribunal that though certain questions had been put as Court questions by the learned Commissioner, he undoubtedly had the right to put questions to witnesses to clarify any point on which there was doubt o ambiguity. I thus see no impropriety nor any indication of prejudice or bias on the part of the enquiry officer in putting the questions to the defence witnesses, which he had asked from them. 4. As regards the second ground on which Mr. Shahani charged the enquiry officer with bias, it may be stated that the record of the enquiry shows that the defence witness Muhammad Jan, was produced by the appellant before the enquiry officer but as the witness refused to take oath, the enquiry officer declined to examine him. Now, the enquiry officer was clearly in error in refusing to record the evidence of a witness because of his refusal to take oath. It has been held by the Supreme Court in the case of Abdul Latif Niazi v. Govt. of West Pakistan (P L D 1967 S C 62) that in departmental enquiries against Government servants, evidence of witnesses not recorded on oath could not be excluded, as "section 13 of the Oaths Act was clearly available to save the validity of statements without oath, such as were made in the enquiry in the present case". The Supreme Court in taking the above view relied upon the decision of the Privy Council in the case from Somali Land reported as Muhammad Sugal Essa v. King (A I R1946 P C 3). Relying upon the above decision of the Supreme Court, the Labour Appellate Tribunal Punjab, in the case of Khyber Vegetable Ghee Mills Ltd., Lahore v. Mehboob Gilani (1978 P L C 316) held that statements of witnesses not recorded on oath in domestic enquiry under the Labour Laws were valid and admissible and the enquiry proceedings were not invalidated by the omission to give oath to the witness. It is not known what evidence witness Muhammad Jan would have given if he had been allowed to make his statement or how far his evidence would have influenced the findings of the enquiry officer or affected the ultimate decision of the employer in respect of the appellant. Moreover, there are certain circumstances connected with the refusal to record this evidence, which taken with the other circumstances, would seem to suggest the probability of some bias prejudice to have been developed in the enquiry office against the appellant. I will proceed to state the circumstances from which this probability of prejudice can be legitimately inferred. 5. The record of the enquiry (pages 4 and 5) indicates that though' the appellant had declined to cross‑examine complainant Wajid Ali he had refused to sign the proceedings. However, the signature of the appellant appears at the bottom of the statement of complainant Wajid Ali. It is not understood how this signature came to be appended to the statement of complainant Wajid Ali if he had refused to append his signature to it. Furthermore, if the appellant had voluntarily declined to cross‑examine the complainant, it is not understood why he was objecting to append his signature to the proceedings. It appears to me that either the record of the enquiry proceedings was not maintained properly or the signature of the appellant was taken on each page of the proceedings in a mechanical manner. Moreover, though the appellant is said to have declined to cross examine complainant Wajid Ali on 20th February, 1979 on the subsequent hearing held on 27th February, 1979 the appellant insisted that complainant Wajid Ali be called as he wanted to cross‑examine him. The enquiry officer, while acceding to the request of the appellant, directed that Wajid Ali would be summoned on the following day and in the meanwhile wanted to proceed with the enquiry, whereupon the appellant expressed no confidence in the enquiry oar officer and walked out. On 28th February, 1979 the appellant was allowed to cross-examine complainant Wajid_ Ali, but before his cross-examination, the evidence of complainant's witnesses, Muhammad Jameel and Mr. Bhatti, was recorded by the enquiry officer. It appears that even on this date there was some un‑pleasantness between the enquiry officer and the appellant as page 7 of the enquiry proceedings shows that the appellant had appeared before the enquiry officer late and was admo nished on that account, whereupon the appellant is said to have stated I have already referred to the fact that enquiry officer had declined to examine defence witness Muhammad Jan, who was produced try the appellant, on the ground that the said defence witness had refused to take the oath. The appellant bad protested at the attitude of the enquiry officer and asserted that he was taking one sided decision, which was not acceptable to him. Apparently on account of this unpleasantness, the enquiry proceedings were adjourned to 7th March, 1979. In the meanwhile, on 6th March, 1979 the enquiry officer wrote memo. to the appellant charging him with behaving in a rude and insolent manner with the enquiry officer during the course of the enquiry proceed ings on the proceeding date and walking out without signing the proceed ings. Prior to this memo, the enquiry officer had written another memo, to the appellant on 27th February, 1979 charging the appellant with behaving in an insolent manner with enquiry officer and walking out of the proceeding. The effect of these exchanges between the enquiry officer and the appellant was consciously or unconsciously reflected in the report of the enquiry officer, for apart from complaining of the repeated inso lence on the part of the appellant, the enquiry officer has brushed aside the evidence in favour of the appellant for reasons which do not appear to be quite adequate. It may be mentioned that 2 witnesses whom com plainant Wajid Ali had mentioned in his report as having witnessed the incident, Muhammad Jameel and Ghulam Akbar, had not supported the prosecution case. The enquiry officer brushed aside their evidence with ‑ the following remarks:‑‑ "The two prosecution witnesses M/s. Jamil Khan and Ghulam Akbar gave an impression of being reluctant to give the facts of the case by either twisting or forgetting as to what had happened on the day and time of the incident for reasons best known to them. Mr. Ghulam Akbar seems to have told the truth inadvertantly when he said "that he did not see a shoe being lifted on Mr. Wajid Ali as he reached late" (page 21). Thus implying that some such thing did happen." 6. Similarly, the evidence of the defence witnesses was brushed aside with the observation that they are in corroboration with the accused and were among themselves like a parrot on the following:‑ "(a) That Mr. Wajid Ali complainant the accused Mir Muhammad with a specific abuse outside the office of the Manager P & I R on a certain date and time. (b) The defence witnesses did not know the background of the incident as to how it all started and who started it. (c) That all of them saw Mr. Kote Khan holding the complainant Mr. Wajid Ali without noticing as to what was in the hands of the complainant." 7. Although the appellant was not cross‑examined by the complai nant or any one else, his evidence has been discarded by the enquiry Officer with the observation that the statement of the accused is nothing but beating about the bush and charging Mr. Wajid Ali with abusing him. 8. In view of the circumstances stated above, I am inclined to the view that some prejudice/bias appears to have been consciously or uncons ciously generated in the enquiry officer against the appellant and conse quently, the enquiries against the appellant do not appear to be the independent enquiries as contemplated by clause (4) of Standing Order 15. " 1 would, therefore, so‑ aside the order of dismissal of the appellant, which was based on the report of the enquiry officer, and would direct the res pondent company to reinstate the appellant in service forthwith. However, it will be open to the respondent company to hold a fresh enquiry by an independent enquiry officer on the basis of the show cause notice dated 13th February, 1979. The question of payment of back benefits to the appellant would be dependent upon the result of such enquiry.