P L D 1969 Dacca 861 (PLP)

Witness No. 4 Govinda Mohan Basak for the 2nd Party is the Enquiry Officer himself. He says "Mr. Sachina canoe twice and stayed for a few minutes when I examined Mr. Hashem. But none of the delinquents were present. When I examined other witnesses I told Sachin to stay and ask question to Mr. Hashem if he liked. Sachin Babu told me that he would not cross- examine Mr. Hashem." In cross‑examination he also says, "it is not a fact that I did not afford any opportunity to the delinquent to defend themselves." An Enquiry Officer is also interested in showing that his enquiry was free and above board. In this state of evidence we cannot say that the conclusion reached by the Tribunal can be upset by us. It is true that Witness No. 1 Sachindra and Witness No. 2 Pankaj Kumar Sarkar for the First Party, are interested witnesses but they have made their statements in a straight forward manner about their not being afforded any chance to cross‑examine the witnesses. They also asserted that they were charge‑sheeted two hours after they made a demand for investigation into the affairs of the loss of goods by the C. I. D. Police. The Second Party was expected to inform the police about the loss of goods. This omission is significant. We have ourselves looked into deposition sheets and after visual examination, we are in complete agreement with the Labour Court that the statement to the effect that they did not want to cross‑examine does not appear to have been written in the same sitting. It is clear that after the entire statement was written the space left was somehow utilised in writing that statement. Since that was done, it appears to us, that the allegation to the effect that no opportunity for cross‑examination was given has to be accepted. This interpolation is indeed the basis of the conclusion that the enquiry was unfair. The well recognised judicial principle is not to disturb the finding of fact of a Court of the first instance unless strong reasons exist therefore. In this case we have also found the interpolation. We, therefore, uphold the finding of the Labour Court that the enquiry was unfair. Mr. Sohrab Ali, learned counsel for the appellant submits that the misconduct of the delinquent officers was established at the enquiry and as such the Tribunal should not have interfered with the same on the misconstruction of section 18 (1) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965. This contention of learned counsel is of no substance, for the Tribunal has not set aside the impugned orders passed by the Management, on the ground that no personal hearing was given but on the ground that the domestic enquiry was conducted in a male fide manner. Learned counsel also argues that the finding that the accused officers were not given opportunity to cross‑examine witnesses is not sustainable, for, in his contention, they were in fact given such opportunity. We have sufficiently indicated as to why we agree with the conclusion reached by the Court in this behalf. Next point urged by learned counsel is that in this case rule of natural justice has not been violated, for, a domestic enquiry is not required to observe all the formalities that were obtained in a judicial enquiry. But the point made by the Court is that the enquiry was conducted in a male fide manner as it appears from subsequent insertion of a statement to the effect that the delinquent officers would not cross‑examine the witnesses. Therefore, this contention itself is misconceived. Next contention of the learned counsel for the Second Party is that the Labour Court is not an Appellate Court over domestic enquiry. The position in law in this behalf is that unless it is found that there was want of good faith in the conduct of the enquiry, great importance has to be attached to a conclusion' of g fact reached by Such an enquiry. In this case it is found by the Labour Court that "the defendants did not receive fair enquiry at the hands of the enquiry officer". That being so it was.; entitled to set aside the impugned order. We would, however, observe that in such a case ordinarily the duty would be to go into the merits of the case and find out if there is sufficient materials before the Court to sustain the impugned order passed by the Management. In this case it has not been done and Mr. Ali's prayer is that, in that view of the matter, it should be remanded to the Labour Court. We would have acceded to this prayer but in this case; as we shall presently show, there is practically no evidence on which the accused employees can be punished by the Management. That being so, we are of opinion that no useful purpose would be served by remanding the case to the Labour Court. State of evidence will be clear from a brief analysis of evidence. The Second Party has examined four witnesses to establish the charges against the officer. Abdul Mannan, the Witness No. 1 for the second party says : "I used to open the godown at the order of Sachindra Babu and Pankaj Babu. Goods are then delivered after check by the Checking Zamadars. Sachindra Babu and Pankaj Babu give delivery." In cross -examination this witness says "I have not seen any body remov ing any cloths stealthily during my duty hours." Even assuming that Sachindra and Pankaj used to give .delivery it cannot be held that they gave delivery of the goods which were thus stolen, the witness himself says that he did not see any body, removing cloths stealthily. ' Santosh Das, witness No. 2 for the 2nd Party says, "Delivery instructions at first came to Ware House Incharge. He theft verifies it from the Head Office Incharge. Then he supplies me a list of the cloths to be delivered. I then go to the godown and pick up the cloths from different parts. Sachin was the Ware House Incharge at the relevant time. Sachin Babu actually delivered the same. I only identify the sorts. Pankaj Sarkar Sometime gave delivery in absence of Sachin Babu." This witness appears to have deposed about the system of delivery obtaining at the Mill. He admits in cross‑examination : "I cannot say when actual loss occurred". A. Hashem, witness No. 3 for the 2nd Party, says that Sachindra and Pankaj reported the shortage to the engineer. He has also not said that Sachindra and Pankoj were actually responsi ble for the loss of the goods. He further says, "Sachin Chakraborty was suggesting that it was a case of theft by outsiders." He did not say that it was done either by Sachin or Pankaj. Although he admits that Sachin suggested that it was a case of theft, no information was lodged with the police. He tries to explain away by saying, "We did not report the matter to the police as there was no outward sign of theft and that Departmental action will meet the ends of justice." It is not understood how the departmental action would meet the ends of justice, for the goods must have been delivered to someone. In facts, the name of one firm called G. M. Stores has been mentioned as the recepient of those goods. If that is so, it was clearly the duty of the second party to inform the police to hold a proper investigation in this criminal offence. Mr. Sohrab Ali points out that this witness stated, "I was convinced beyond all shadow of doubt these persons were respon sible for the loss of the cloths." This is a statement of opinion and not that he actually saw any one taking part in it. The Enquiry Officer, G. M. Basak admits that, "The fixation of responsibility on the loss is based on circumstantial evidence." We have already indicated that there is absolutely no evidence that these two officers have removed the goods or in any way connived at the removal of these goods; nor the second party has been able to establish that they were negligent in the discharge of their duties in such a manner that they could not detect the removal of these goods. That being so, no useful purpose would be served by sending the case to the Labour Court on remand for discussing the evidence. It has, however, been rightly urged that the Labour Court clearly erred in observing that since the enquiry was not con ducted in a fair and impartial manner, it was not necessary for1a the Court to go into the merits of the case. It is rather on such occasions the Court should go into the merits of the case. The view expressed above finds support in a decision of the Supreme Court of India in the case of Messrs Kharda & Co. Ltd. v. The Workmen (A I R 1965 S C 719). In that case the learned Judges observed: "One of the tests which the Industrial Tribunal is entitled to apply in dealing with industrial disputes of this character is whether the conclusion of the Enquiry Officer was perverse or whether there was any basic error in the approach adopted by him." Gajendragadkar, J. delivering, the judgment of the Court proceeds to say, "As we have already observed, we must insist on a proper enquiry being held, and that means that‑ nothing should happen in the enquiry either when it is held or after it is concluded and before the order of dismissal is passed which would expose the enquiry to the criticism that it was undertaken as an empty formality. Therefore, we are satisfied that the Industrial Dispute Tribunal was right in not attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it". The learned Judge further observed : "It is well settled that if the enquiry is held to be unfair, the employer can lead evidence before the Tribunal and justify his action, but in such a case, the question as to whether the dismissal of the employee is justified or not would be open before the Tribunal and the Tribunal will consider the merits of the dispute and come to its own conclusion without having any employee." Since the Tribunal found the enquiry to be unfair, it should have made its observation with regard to the evidence adduced before it and we would have certainly remanded the case for c assessment of it if there was some evidence on which a finding about guilt or otherwise of the accused officers could be arrived at. In the case of Powari Tea Estate v. Barkataki (M. K.) and others (1965 L L C 588) similar view was expressed by the Supreme Court of India. Before we part with this case, we have to express our opinion in a preliminary objection which was raised by learned counsel for the appellant as he opened the case before us but we over ruled his contention and asked him to address us on merits. I now proceed to give reasons. His point was that the Labour Court not having been legally constituted under .the Labour Disputes Act, the award is without jurisdiction. His contention is that the Chairman has been appointed by the Provincial Government under the Labour Disputes 4ct but the panel of advisers as required to be constituted under the Act has not yet been done. We overruled it, firstly, on the ground that, this point was not raised before the Labour Court. It is true such a question can be raised at any stage and even in a superior Court but when such a question is dependant on the determination of an issue of fact, it cannot be entertained. There is nothing before us which would enable us to find as to whether or not the Provincial Government issued any notification constituting a panel of advisers as required under the Act. Secondly, Mr. Sohrab Ali admits that such a panel was constituted under the Industrial Disputes Ordinance. An action taken under the Ordinance is saved by the Disputes Act unless such action is inconsistent with the provisions of the Act. Inconsistency has not been claimed in this case. Without burdening our judgment any further on this point, we would refer to a Division Bench decision of this Court‑in the case of James Finlay & Co. Ltd. v. Aminul Islam and others in F. M. A. No. 4 of 1968 in which one of us was a party. In that case it was urged that the Rules framed under the Ordinance were no longer in existence, for they were framed under the Ordinance and not under the Labour Disputes Act. This contention was held to be without any substance on the ground that all orders passed under the Ordinance were saved by section 44 of the Labour Disputes Act itself. Section 44 of the Labour Disputes Act itself provides that notwithstanding the repeal anything done shall be deemed to have been done or made under the Labour Disputes Act. Therefore, the Panel constituted under the Ordinances shall be deemed to be one formed under the Labour. Disputes Act. This preliminary objection is devoid of any substance. Mr. Sohrab Ali has lastly urged that the duty of the delin quent officers to prove that they were under section 106 of the Evidence Act. Section 106 has no application to this case: Rule embodied in that section would only apply to a fact which is known to a person to the exclusion of others. In this case the goods were being handled by a number of persons in a Mill and as such it cannot be said to have been in the exclusive, possession of the accused officers unless that is proved by the' Second Party to apply this exception to the general principle that the burden of proving a fact is on him who asserts ft, would bed plain injustice. In the result the appeal is dismissed with costs and the award given by the Labour Court is affirmed The appeal having been dismissed, the connected Rule is discharged without any order as to costs. HABIBUR RAHMAN, J.‑I agree. S. Q. Appeal dismissed.