1995 PLP 80 (PLC)

"It has been reported against you that during course of meeting held between Management and Union representatives on 13‑8‑1988 at about 11‑30 hours in the office of Manager (P&I) TIP, Karachi, you shouted at the Management representative threatening them in an intimidatory manners saying that you would teach the Management a lesson by handling somebody from the Management with the violence four times severer than what was done by you previously in the case of a Manager. (2) The act alleged to have been committed by you is subversive of discipline constitute disorderly behaviour and serious misconduct on your part. (3) You are hereby called upon to explain in writing within three days on receipt of this letter as to why disciplinary action should not be taken against you which may entail your dismissal from service. (4) If you fail to submit your explanation within the aforesaid period it may be presumed that you have no explanation to offer and further action in this matter shall be taken as provided in law applicable in your case. MANAGER, PLANNING AND INSTALLATION."

2. He had denied the allegations made against him and averred that it was issued only to wean him away from continued interest in the union activities. Letter of enquiry followed on 18‑9‑1988. The Enquiry Committee consisted of H.T. Awan, Manager, Diversification and Lt.‑Col. (Retd.) Zafar Saeed Malik wherein the statements of Muhammad Aslam, Administrative Officer. Muhammad Aslam, Planning and Installation and Lt.‑Col. (Retd.) Zafar Mehmood were recorded. The petitioner had examined Nasim Khan a;: a defence witness.

3. According to the report misconduct was proved against him.. As a result he came to be dismissed on 30‑9‑1989.

4. The petitioner was his own witness while Muhammad Aslam, Planning and Installation and H.T. Awan appeared on behalf of the respondent.

5. The Labour Court found that the non‑production of the complaint was an incurable defect in the proceedings and also misconduct had not been proved against the petitioner. As a result the petition was allowed but back benefits were denied because the petitioner had not stated anywhere during the proceedings that he was jobless, resulting in these appeals, which I propose to dispose of together.

6. The meeting was to be held at 11‑00 a.m. The three representatives of the management namely Muhammad Aslam, the Manager, Planning and Installation, and Lt.‑Col. (Retd.) Zafar Mehmood were sitting with Muhammad Aslam the Administrative Officer but the workers representatives were not to be seen. It is alleged that at about 11‑30 a.m. Muhammad Aslam had come out of his room to see as to why this delay was taking place. He had found the petitioner and Muhammad Nasim Khan, the Vice‑President standing outside. He took them inside the room. They had discussed the matters on the Agenda and regaled themselves with cups of tea when on the question as to what was the criterion for the promotion of the workers, the petitioner had introduced his personal case and in a fit of tantrum shouted that he had given a good drubbing to an officer earlier, and if they continued to misbehave, this time his revenge will be four‑fold. Saying this he had got up from his seat and banging the door behind him walked out. Muhammad Nasim Khan had followed him.

7. All these three officers had appeared as witnesses of the incident during the enquiry proceedings. It was Muhammad Aslam the Administrative Officer, who had cross‑examined the petitioner and his witness Muhammad Nasim Khan. He started the cross‑examination by asking him whether he had been charge‑sheeted earlier also, without bothering to care whether it formed a part of the charge‑sheet. Though the answer was evasive, yet he persisted by starting another volley of questions including an earlier dismissal of the petitioner. There were as many seven questions that may. Next he turned round and wanted to know as to whether he was duly authorised to represent the workers. There was also a question whether he had taken permission from the management's representatives td go out as though it would have gone well with the ranting and sulky manner. It can therefore be said that the said Muhammad Aslam was not well‑inclined to the petitioner. The person who sent the show‑cause notice was the other Muhammad Aslam. This was hardly an atmosphere for a fair and impartial proceeding. The petitioner pitted against the serried rank of the complainants and the prosecutor, was simply doomed. It would have been noticed from the question suggested to the petitioner in the cross‑examination, that the petitioner had been arraigned in a number of proceedings. He had even been dismissed from service though later on reprieved on the tender of apology. The record also shows that there was a dispute between the workers and the respondent pending before the learned Ombudsman. There had been proceedings before the N.I.R.C. and there was a case pending in the 1st Labour Court. I would not say as was done by the Labour Court, that the ‑non‑production of the complaint was an incurable defect. It might as well be mentioned that Muhammad Aslam states that it was not reduced in writing and so the question of non-supply to the petitioner or not making a part of the record does not arise, otherwise too. Nor would I agree ‑that not producing the exact words will make matters worse for the management. But the position that emerges is that in view of the extremely strained relations between the parties, it cannot be said as to what Actually happened and how it was brought about. I agree with the learned Presiding Officer that a clear case of misconduct remains far from established. The Appeal No. 133 of 1993 filed by the management is therefore dismissed.

8. The petitioner had nowhere stated during the pleadings or in evidence that he was jobless or something to that effect. All he had done was to say that he was entitled to his lost wage's. This cannot be equated with joblessness. Looking to the principles laid down in Muhammad Bashir v. Punjab Labour Appellate Tribunal and others 1991 SCMR 2087, the back benefits were therefore rightly refused. I will affirm that part of the order and as a result the appeal filed by the petitioner namely Appeal No. KAR‑84 of 1993 also stands dismissed. Orders accordingly. H.B.T./2370/LB.S Order accordingly.