1997 PLP 745 (PLC)

1995 PLC (C.S.) 740; 1996 SCMR 336; 1986 PLC 493; 1977 PLC 715 and 1991 SCMR 2087 ref. Appellant in person. M.A. Javed for Respondent. Date of hearing: 16th February, 1997.

1. The appeal is directed against the decision, dated 10‑6-1996, rendered by Punjab Labour Court No.4, Faisalabad, dismissing the grievance petition of Umar Hayat, filed under section 25‑A, Industrial Relations Ordinance, 1969.

2. Umar Hayat was working as "Senior Filler, Glucose Refinery", with the Rafhan Maize Products Company Ltd., Faisalabad, and was dismissed from service on 25‑7‑1995, on an allegation of misconduct. He had allegedly manhandled Muhammad Arshad Aziz, General Secretary. C.B.A., whose clothes had been torn off. It was considered to be riotous behaviour as also subversion of discipline, on the part of the employee. According to Umar Hayat, the Enquiry Officer had conducted himself in a partisan manner, had mis‑read the evidence and given incorrect findings. Umar Hayat pleads that the mishap took place outside the mill premises, between two factions of the same union, arid he was not at all responsible for it. In the same occurrence, two other persons, Ali Nawaz and Qurban Ali were involved. Whereas Ali Nawaz was allowed to go scot free, one annual' increment of Qurban Ali was withheld. Umar Hayat says that a very harsh penalty of ouster from service was awarded to him, with a view to take him out of arena of election. Discrimination was practiced amongst the three officials, it is averred. Mr. M.A. Javed, Advocate, representing the respondent concern, has, however, relied on 1995 PLC (C.S.) 740 (Supreme Court of Pakistan), 1996 SCMR 336; 1986 PLC 493 and 1977 PLC 715 (Labour Appellate Tribunal, Punjab), in urging that if a plea of fact is not pleaded, no case can be founded on such plea and no evidence can be led in support thereof. Points raised in the pleadings only can be considered and adjudged. Before any Tribunal he. cannot subsequently take up the plea that the charges leveled against him were distinguishable from those against his associates. It is urged that Umar Hayat had never pleaded discrimination before the Labour Court, and had also not adduced any evidence in that behalf. Learned counsel is, however, incorrect there; and surprisingly the Enquiry Officer had arrived at findings polls apart as regards the three officials, abovementioned, facing similar or same charge of having assaulted Muhammad Arshad Aziz. This gentleman did not belong to the proprietorship or the management of the mill and was not supposed to have been made a victim of assault by the members of the trade union. He was himself the General Secretary of the Union notified as C.B.A. Umar Hayat, it is submitted, was planning to contest the election for a higher office in the trade union, and his rival in the union, as also the management, had become vindictive against him. He was elected Joint Secretary in 1987 and he remained in office for six year's. The Enquiry Officer, no doubt, examined eleven P. Ws. and eight witnesses in defence and the evidence was alto discussed by the Enquiry Officer, who came to the conclusion that charge of misconduct stood proved against Umar Hayat, who did take part in the proceedings of enquiry and even cross‑examined the witnesses of the prosecution and in the end produced witnesses in defence as well. He did not make any application for change of the Enquiry Officer, with whom he had no dispute and whose creditability or impartiality he did not challenge, in the opinion of the learned Court below. It is, however, to be borne in mind that an enquiry is generally conducted by a person appointed by the management and in all likelihood he will conduct himself under the influence of the management and against the interests of the employee. A presumption, therefore, can be Vised against impartiality or independence of the Enquiry Officer, whose findings must be viewed with great care and caution by a Court of law. An Officer having been appointed by the management to hold an enquiry against a subordinate cannot be expected to apply his free and independent mind to the facts of the case, rendering honest findings, not divorced from facts and, representing absolute truth. The assertion that the incident had a different complexion and in any case it had occurred outside the mill has to be weighed and given due importance. In the course of arguments Umar Hayat said he was vowing by the Holy Book that he had no grouse against Muhammad Arshad Aziz and had not resorted to any misbehaviour with him. I feel that in the circumstances of the case others equally involved were leniently dealt with, whereas extreme view was expressed and a penal action was taken against Umar Hayat, who said he had to maintain his widowed mother and three sisters, father being dead.

3. Learned counsel for the respondent has cited in support of his view point 1991 SCMR 2087 in urging that the appellant's conduct could not be termed as above board and he could not lay claim to back benefits. I am of the view that to some extent Umar Hayat might have to blame himself in the ugly incident and the loss caused to the interests and finances of the company by reason of the disorderly behaviour of the co‑workers; but I would reiterate that viewed with a non‑partisan approach he did not deserve to be awarded the extreme penalty of dismissal from service. The alleged conduct on his part did not amount to misconduct of the kind as would have attracted the harsh view taken by the Enquiry Officer in the matter, and adopted by the mill management, in passing the final order against the accused employee. He has been out of job since 25‑7‑1995; and no evidence has been led by the respondent to the effect that during the intervening period he has been doing any work or earning income from any other source. He has served the company for twelve years, without earning any adverse report, and must be taken to be a jealous and zealous guardian of legitimate interests of the concern.

4. I would rescind the dismissal order dated 25‑7‑1995, and set aside the Labour Court's order dated 10‑6‑1996. The appeal succeeds and is allowed with costs. Umar Hayat shall be reinstated in service with immediate effect and will be deemed to have served the factory with no gap. He will also be entitled to full back benefits for the period he has been out of' service of the respondent H.B.T./871/Lb.P Appeal allowed.