1992 PLC 251 (PLP)

4. The main ground urged by Mr. M.M. Kazim is that the Enquiry Officer did not sign enquiry report but somebody else wrote it, and therefore, Enquiry Officer was not produced before the learned Labour Court. It is contended by Mr. Mehmood A. Ghani for the respondent that Enquiry Officer could not be examined, because he had left the service of the respondent and his whereabouts were not known as stated by Mr. Samar Abbas Zaidi a Labour Officer of the respondent's establishment and further that the enquiry report has been duly proved by Mr. Samar Abbas Zaidi who has stated that enquiry report bears the signature of Mr. Aftab Yousuf.

5. Mr. Mehmood A. Ghani has relied upon number of authorities in support of his contention that non-examination of the Enquiry Officer before the learned Labour Court would not vitiate the enquiry specially in view of the fact, that the appellant has admitted to have participated in the enquiry, to have been given opportunity of cross-examining prosecution witnesses, to have cross-examined some of the prosecution witnesses, to have examined himself and his defence witnesses and to have signed each and every paper of enquiry proceedings. In case of Mohammad Asif v. Messrs Tower International Restaurant 1989 PLC 291, this Tribunal held that "where accused himself admitted enquiry proceedings and all pages whereof were signed by accused and that other witnesses supported allegation against accused, the non-?examination of Enquiry Officer by Labour Court, in circumstances was not objectionable."

6. In the case of Abdul Ghani Channa v. United Bank Ltd. 198To PLC 1397, this Tribunal held that "non-examination of Inquiry Officer before Labour Court in proceedings under section 25-A, I.R.O. did not vitiate inquiry.

7. In the case of Syed Obaid v. Messrs General Tyre and Rubber Company of Pakistan Ltd. 1983 PLC 37 it was held by this Tribunal that when "Partiality and bias were alleged against Enquiry Officer but accused himself admitted enquiry proceedings and all pages whereof were signed by accused, where other witnesses supported allegations against accused, non-examination of Enquiry Officer by Labour Court, was not objectionable".

8. In the case of Inamul Haq v. Allied Bank of Pakistan 1985 PLC 558, it was held by this Tribunal that "Non-production or -non-examination of Enquiry officer before Labour Court, was not a serious drawback to vitiate proceedings as the enquiry was conducted fairly and partially.

9. In the case of Punjab Road Transport v. Akhtar Ali 1985 PLC 163 learned Labour Appellate Tribunal Punjab held that Labour Court, had given finding that domestic enquiry was made properly with full opportunity of cross-examining prosecution witnesses and production of defence and as no enmity on part of Enquiry Officer, was suggested the examination of Enquiry Officer before Labour Court, in circumstances was not necessary."

10. Thus the consensus of the decisions of the Labour Appellate Tribunals appears to be that the non-examination of Enquiry Officer before Labour Court per se would not vitiate the enquiry proceedings. However the facts of each case differ and each case is to be decided on merits depending upon the facts of that particular case. 1n the reported cases, either bias was alleged against the Enquiry Officer or he was not examined for no specific reason in the Labour Court, but looking into the proceedings of the enquiry, which were admitted, Tribunal came to the conclusion, that as the enquiry was held fairly and properly and charge stood proved against the accused, non-examination of Enquiry Officer was not fatal. However in this case the appellant alleges that the enquiry report does not bear the signature of the Enquiry Officer but was signed and written by somebody else. He has made such allegations in para 9 of his grievance petition which he has adopted in his Affidavit-in-Evidence. It may be pointed that the appellant was not specifically cross-examined on his this assertion that somebody else signed enquiry report, and that enquiry report was written by someone else.

11. It may be pointed that this grievance petition was filed on 5-10-1989. The enquiry report does not bear the date when it was signed, but the dismissal order is dated 8th June, 1989. The enquiry report must have been signed a few days before the dale of dismissal. It is not known as to when Mr. Aftab Yousuf the Enquiry Officer resigned from his service. He could not have become so untraceable within a few months of his all alleged signing of enquiry report that his whereabouts could not be traced. After this allegation of the appellant in the grievance petition it was proper for the respondent to have tried to find the whereabouts of Mr. Aftab Yousuf Enquiry Officer in order to examine him before the learned Labour Court, and to prove the enquiry report through him. There is no evidence to show, if the respondents made any such effort.

12. This enquiry report has not been proved or properly produced. It was produced by Mr. Malik Shahid Pervez, General Manager of the respondent as annexure to written statement. The respondent did not examine Mr. Malik Shahid Fervez. Mr. Samar Abbas Zaidi the only witness examined by the respondent has not formally produced enquiry report but has only identified the signature of the Enquiry Officer and the report, which is Annexure `R/5' to the written statement. In the cross-examination it was suggested to him, that enquiry report filed alongwith reply statement was neither prepared nor signed by Mr. Aftab Yousuf. No doubt he states that he identifies the signature of Mr. Aftab Yousuf on, the enquiry proceedings and enquiry report, but he does not state, that he was conversant with the signature of Mr. Aftab Yousuf and how he became conversant with his signature. There is nothing on the record to show as to what was the duty of Mr. Aftab Yousuf in the respondent's establishment and whether in the ordinary course of his duties Mr.Samar Abbas Zaidi, Labour Officer of the respondent used to frequently come across with the writing and signature of Mr. Aftab Yousuf. In view of the allegations of the appellant in his grievance petition as well as Examination-in-Chief, it was necessary .for the respondent either to produce the Enquiry Officer or to prove by some convincing evidence, that efforts were made to trace Aftab Yousuf but he was not traceable and to properly produce and prove the enquiry report and signature of the Enquiry Officer.

13. It may be pointed that even original enquiry report was not produced before the learned Labour Court. An identification of signature on photostat copy is always open to doubt and suspicion. Mr. Mehmood A. Ghani has produced certain case-law to show that the other side cannot raise if documents are allowed to be produced without objection of other side then the objection at the appellate stage. In the instant case documents were not formally produced in the evidence. They were produced alongwith the Written Statement as Annexure. As pointed above the appellant had already raised objection that this enquiry report was forged as it was neither written nor signed by the Enquiry Officer. The original document was never produced or the witness Samar Abbas Zaidi in his Affidavit-in-Evidence did not formally produce even this Annexure. He referred to Annexure `R/5' in his Affidavit-in-Evidence in para 9 and has identified the signature of Aftab Yousuf. This cannot be considered to be formal production of the document, so as to apply the case law relied upon by the learned counsel for the respondent. Even otherwise as pointed above it was photostat copy and the identification of signature on photostat copy even by a handwriting expert has been held to be open to doubt.

14. In view of the circumstances of the instant case in my opinion the examination of Enquiry Officer was very necessary to prove that he had signed or written the report and that he had found the appellant to be guilty of the alleged misconduct. The order of dismissal passed on such suspicious report is not sustainable and is liable to be set aside.

15. Mr. Mehmood A. Ghani has relied upon the decision in case of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087. Their Lordships have held that "Back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal had been set aside." In the instant case the order of dismissal has been set aside on technical grounds.

16. As a result of above discussion I allow this appeal, set aside the impugned order of Labour Court and dismissal order passed by the respondent and order reinstatement of the appellant in service within one month. However, this will not preclude the respondent from holding fresh enquiry against the appellant on the charge-sheet already served upon him vide Annexure-A to the grievance petition. However, if fresh enquiry is held it should be completed within four months of this order as the misconduct pertains to year 1989. The payment of back benefits would depend on result of enquiry. H.B.T./1996/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeal allowed.