1981 PLP 818 (PLC(CS))

S. 2(i) and S. O. 12(3) read with Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑" Workman "‑‑Chowkidar‑Duties involv ing neither any manual nor clerical work skilled or unskilled‑‑Not a workman‑Not entitled to grievance petition before Labour Court against termination of service. (b) Industrial dispute‑

Domestic enquiry‑Accused office‑bearer of C. B. A. charged for alleged disorderly behaviour and raising objectionable slogans against Management‑Enquiry held while Police squad present in Factory premises though not in enquiry room‑Presence of Police, held, bound to have an inhibitory effect on witnesses‑Witnesses employees of Establishment deposing before Labour Court that accused during enquiry proceedings expressed no‑confidence in Enquiry Officer and that attitude of Enquiry Officer was harsh towards accused and further that complainant Production Manager was not pressed by Enquiry Officer to answer question of accused and was consulting such complainant while recording statement of witnesses‑Enquiry, in circumstances, held, not fair and impartial Consequential dismissal order set aside‑Management, held, free t0 hold fresh enquiry‑Back benefits subject to result of fresh enquiry‑‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A. Muhammad Humayun for the Management. M. L. Shahani for the Workmen. Date of hearing : 31st July, 1980. These three appeals are all directed against a common decision, given on 13th April, 1980 by the learned First Labour Court, by which it rejected the grievance petitions filed by workmen Sneed Butt and Bashir Ahmad against their dismissal from service and allowed the grievance petition filed by workman Bakht Rawan and directed that he be re‑instated in service. Appeal No. KAR‑270 of 1980 has beets filed by Messrs Sandoz (Pakistan) Ltd. hereinafter referred to as the Company, against the orders for the re‑instatement in service of workman Bakht Rawan while Appeals Nos. KAR‑291/80 and KAR‑291/80 have been filed by workmen Saeed Butt and Bashir Ahmad against the rejection of their grievance petitions. As the appeals involve common issues they have been heard together and will be disposed of by this judgment.

2. The facts leading to the filing of these appeals, shortly stated, are that certain incidents took place on the 15th and again on the 17th of June, 1977 in the premises of the Factory of the Company at Karachi over the transfer of an employee of the Company, by name Mr. Aleem, from Karachi to its factory at Jamshoro, in consequence of which appellants Saeed Butt and Bashir Ahmad and respondent Bakht Rawan, were charge‑sheeted by the Company. Only a single charge‑sheet, relat ing to the incidents of 15th June, 1977 was issued to respondent Bakht Rawan and appellant Bashir Ahmad, while two charge‑sheets one relat ing to the incidents on 15th June, and the other in respect of the incidents on 17th June, 1977 were issued to appellant Saeed Butt. Separate enquiries based on the above charge‑sheets were conducted by two different Enquiry Officer. On the basis of their reports, orders of dis missal of Bakht Rawan, Saeed Butt and Bashir Ahmad were issued, after they were served with a 'second show‑cause notice and their replies and explanations thereto were not found satisfactory by the Management. The three workmen thereupon challenged the orders of their dismissal before the learned Labour Court through grievance petitions under section 25‑A, I. R. O.

3. Mr. Humayun, the learned Representative of the Company, assailed the impugned order of the learned Labour Court in favour of respondent Bakht Rawan, who claims to have been at the relevant time not only a member of the Works Council in the Company but also the Vice‑President of the C. B. A. in the Company, on the grounds, firstly, that he was employed purely as a Watchman (Chowkidar) and hence he is not entitled to file a grievance petition against his dismissal from service and secondly that the evidence in the domestic enquiry, which was fairly conducted, establishes misconduct on his part, the main element whereof being that he joined and was in the forefront of workers who were raising indecent slogans, shouting and using abusive language.

4. It has been held by this Tribunal in the case of Khudadad Khan v. National Construction Company, decided on 20th April, 1980 that a Chowkidar is not a workman for the purposes of the Standing Orders, as he is not employed to do any manual or clerical work, whether skilled or unskilled, and hence he is not entitled to file a grievance petition under Standing Order 12(3) read with section 25‑A, I. R. O., against his dismissal from or other mode of termination of service. Respondent Bakht Rawan was admittedly employed by the Company as a senior Chowkidar and even in his grievance notice to the Company, he has des cribed himself as such. I am, therefore, of opinion, for the detailed reasons given in the case of Khudadad Khan that his grievance petition was not maintainable. In view of this petition I find it unnecessary to examine his case on merits.

5. There remain to be considered the cases of appellants Saeed Butt and Bashir Ahmad. The former is said to have been at the relevant time the President of the C: B. A. in the Company while the latter claims to have been an active worker of the C. B. A. The charges against appel lant Saeed Butt were firstly, that on 15th June, 1977 at 1300 hours, he made an explosive speech to the workers in the Factory premises for agitating against the Production Manager and the Management in connection with the transfer of Mr. Aleem from the Lyari Factory to the Jamshore Factory, secondly, that after making the above speech, he led the workers to the Dyes Hall, raising indecent and objectionable slogans against the Management, thirdly, that he entered the Laboratory alongwith the workers, raising the same slogans, fourthly that on the same day, at 15.05 hours, he repeated the above disorderly behaviour in front of the general office and lastly, that on 17th June, 1977 at about 10.00 hours, he led the workers through the Laboratory, raising indecent and objection able slogans, and also threatened the Production Manager and the Pro duction Officer with dire consequences if the transfer of Mr. Aleem was not withdrawn. As regards appellant Bashir Ahmad, the charges against him were similar to the first four charges against appellant Saeed Butt.

6. Both in their grievance notices as well as in their grievance petitions, appellants Saeed Butt and Bashir Ahmad have complained that they have been victimized due to their Trade Union activities and espousing the cause of workers and have specifically alleged that the so called domestic enquiry was nothing but a mockery and neither they were given full and proper opportunity to defend themselves nor to cross‑examine the witnesses fully and properly. No doubt the Personnel Manager of the respondent‑Company, A. G. Shaikh as well as the Enquiry Officer, Deedar Hussain, who were examined before the learned Labour Court, have strongly denied these imputations, but I am inclined to the view that there is substance in the imputations. In the first place, it is not denied by the respondent‑Company that Police was present in the factory premises during the period when the domestic enquiries against the two appellants were being conducted. It is immaterial whether the Police present was outside the room in which the enquiry was held or in other parts of the factory. The presence of the Police in the Factory, called at the instance of the Management, was bound to have an in hibitory effect on the witnesses in giving evidence considered favourable to the appellants. Secondly, it has been admitted by the Enquiry Officer himself in his evidence before the learned Labour Court that appellant Bashir Ahmad had stated before him in his statement that he had no confidence in his getting justice from him (Enquiry, Officer). This indi cates that appellant Bashir Ahmad had voiced his distrust of the enquiry proceedings and expressed lack of confidence in the Enquiry Officer even during the course of the enquiry proceedings. The extent of the influence of Dr. Shah on the Enquiry Officer can tie judged from the fact that the Enquiry Officer did not press Dr. Shah do answer appellant Bashir Ahmad's query whether he was a Muslim and remained content with Dr. Shah's reply that his religion had nothing to dry with the enquiry proceedings. It is not understood why Dr. Shah was reluctant to dis close his religion. The most important piece of evidence indicating that the enquiry proceedings were neither fair nor impartial, however, is the testimony before the learned Labour Court of witnesses Faiz Ahmad and Syed Muhammad Shoaib. The former has been working in the Company since the past ten years and at the time of his giving evidence in the Court was working in the Company as a Store Keeper, while witness Syed Muhammad Shoaib has been employed as a Mechanic in the Company since the past about 12 years. Both of them were examined by the Enquiry Officer during the domestic enquiry. Witness Faiz Ahmad testified before the learned Labour Court that the Enquiry Officer did not act impartially as his conduct was frightening, that the Enquiry Officer was recording the statements of witnesses in consultation with Dr. Shah, who was the complainant against the two appellants, and that appellant Bashir Ahmad had complained against the conduct of the Enquiry Officer. Similarly, witness Syed Muhammad Shoaib has deposed that the Enquiry Officer was behaving very harshly against the appellants, the enquiry con ducted by him was not fair, be did not record the witnesses' statements correctly and was writing the statement as told by Dr. Shah and that appellant Bashir Ahmad had protested to the Enquiry Officer about his conduct. As already indicated both these witnesses were employees of the Company not only at that time that they gave evidence in the domestic enquiry but also at the time of giving evidence before the learned Labour Court. It is hardly like that in the circumstances they would have had the daring to give false evidence against the Manage ment and thereby unnecessarily earned its wrath, specially when the complainant against them was the Production Manager, Dr. Shah him self. This aspect of the case has not been considered at all by the learned Labour Court. Since the enquiry proceedings do not appear to have been conducted fairly or impartially, no reliance can be placed thereon and the action taken against appellants Saeed Butt and Bashir Ahmad on the basis of these proceedings and the report of the Enquiry Officer cannot be sustained.

7. The upshot of the above discussion is that all the three appeals must succeed and the impugned orders have to be set aside. The appeal of the Company against Bakht Rawan succeeds on the sole ground that as he was employed as senior Chowkidar in the Company, he is not a work man for the purposes of the Standing Orders and hence he is no entitled to file or maintain a grievance petition under Standing Order 12(3) read with section 25‑A, I. R. O. The appeals of appellants Saeed Butt and Bashir Ahmad succeed on the ground that the Enquiry Officer was neither fair nor impartial and it is not possible to rely on the enquiry proceedings or the Enquiry Officer's report, on the basis of which their dismissal orders were issued. Since their dismissal orders are being set aside purely on the technical ground that the domestic enquiry against them was not fairly or impartially conducted, it will be open to the Company to hold a fresh enquiry against them on the same charges by a different Enquiry Officer. The payment of back benefits to them will depend on the result of such enquiry. If no such enquiry is held against them within two months from the date of this order, the two appellant will be entitled to back benefits.