1978 PLP 201 (PLC)

This is an appeal against the decision dated, 26‑7‑1917 of Punjab Labour Court, No. 2, Lahore. 2 Hafeez Raquib, respondent is the employee of daily 'Mussawat' Ltd, Lahore, appellant. On 21‑5‑1974 at 11‑05 a. m. it was alleged that he had forced the employees of the appellant to observe token strike in the appellant's establishment by going out of the office. Ho also delivered a speech to that effect. Some workers were not willing to go on strike but he forced them physically to leave their seats. The Management issued a charge‑sheet dated 21‑5‑1974 Exh P‑1 to the respondent. The respondent denied the allegations. No immediate action was taken. On 12‑6‑1974 another charge‑sheet Exh P.3 was issued to the respondent as under: "In continuation of this office letter dated 21st May, 1974 received by you on 23rd May, 1974, you are hereby charged further with the following charges: (1) You were required to remain present in the office during office hours even during your suspension period, but you incomplete disregard of the instructions remained absent from 27th May 1974 to 11th June, 1974. (2) During the period mentioned above you have been participating in agitation against the Management and observed hunger strike and courted arrest yourself. This illegal action on your part tantamount to unfair labour practice. In this way you had damaged prestige and reputation of this institution in the public eyes. In view of the above, you are hereby directed to appear before Mr. Muzzaffar‑ul‑Hassan. Chief Reporter who has been appointed as Enquiry Officer in your both cases on 14th June. 1974 at 3‑00 p. m. alongwith written reply to this charge‑sheet, failing which ex parte proceeding will be taken against you. It is added for your Information that the Management has not directed you not to resume your duty, but contrary to this you are absent from office, since 27th May, 1974. "

3. The respondent did not submit any reply to this charge‑sheet. On 1,7‑1974 an enquiry was held, in which no prosecution evidence was recorded. Who, Enquiry Officer straight away recorded the statement of the respondent, who denied the allegations.

4. The Inquiry Officer found the respondent guilty and as a result thereof his services were terminated on 11‑7‑1974. He filed a petition under suction 25‑A of Industrial Relations Ordinance, 1969 for re‑instatement with back benefits before the Junior Labour Court on 20‑8‑1974. Sub sequently, after the abolition of the Junior Labour Courts and the re‑adjustment of the territorial jurisdiction of the Punjab Labour Court at Lahore, the case was heard by Punjab Labour Court. No. 2, which vide decision under appeal, accepted the petition and directed that the respondent be re‑instated with back benefits on the ground that the enquiry against him was a fate and the findings of the Inquiry Officer wore perverse.

5. Aggrieved by the above decision, Daily 'Mussawat' Limped, appellant through its Manager (Administration) has preferred this appeal.

6. On perusal of the record I find many legal infirmities in the enquiry proceedings. No prosecution evidence was recorded but instead the statement of the respondent was straightaway recorded and no opportunity was given to him to produce evidence in his defence.

7. In the case, Meenglaas Tea Estate v. Their Workmen (1964 P L C 135) it was observed: "A workman who is required to answer a charge of misconduct in a domestic enquiry must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear evidence in support of the charge and to put such relevant questions by way of cross‑examination as he desires. Then be must be given a chance to rebut the evidence led against him. This is the barest minimum of a domestic enquiry and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. Therefore, an enquiry which is made by persons who were not only In the position of Judges but also of prosecutors and witnesses and which consisted of putting questions to each workman in turn no witness being examined in support of the charge before the workmen were questioned, would amount to such a travesty of the principles of natural justice that a Tribunal would be justified in. rejecting the findings and asking the employer to prove the allegation against each workman de novo before it."'

8. Secondly, I find that the Inquiry Officer who held the enquiry had appeared as a witness against the respondent in this case before the National Industrial Relations Commission. It is well established principle that a person cannot function as a Judge or on behalf of a Judge in a case in which he was a witness. I am fortified in this view by the judgment of the Lahore High Court in the case of General Manager Lyallpur Cotton Mills, Lyallpur v. Sardar Mohammad and another (1977 P L C 139).

9. Thirdly, I find that in charge‑sheet Exh. P‑3 it was mentioned that he bad to appear before the Inquiry Officer, failing which ex part proceedings would be taken against him. This, in my view, amounted t putting a cart before a horse, because under Standing Order 15(4) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance. 1968, it is incumbent upon the employer to scrutinise the reply to the charge‑sheet and then decide as to whether the enquiry has to be held or not. In the present case, the appellant has already decided that the enquiry would be held irrespective of the fact as to what the reply of the charge‑sheet would be. The charge‑sheet was clearly in violation of law.

10. The learned counsel for the appellant, however, contended that if the decision of the Labour Court regarding re‑instatement is upheld in view of the legal infirmities in the enquiry, the decision regarding the back benefits be set aside because the employer has an inherent right to hold an enquiry afresh against the respondent.

11. Before an enquiry is held, a charge‑sheet has to be issued within one month of the date of the alleged misconduct as provided under Standing Order 1'.(4) of the W. B. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, In the present case, the charge‑sheet itself was defective, because before receiving the reply to the charge‑sheet the appellant had already decided to hold an enquiry and as such no new charge‑sheet can now be issued in view of the limitation imposed under Standing Order 15(4) In view of the above no further enquiry can now be held against the respondent on the same charge.

12. Lastly, I find that no termination letter was communicated to the] respondent. This is a clear violation of Standing Order 12(3) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In the ease of Guftar Shah v. Sind Labour Court No. 3, Karachi and another (1974 P L C 205)I it was observed: "There was no sufficient compliance on the part of the employer of Standing Order 15(4) which requires that a charge‑sheet will be given to the employee and so also notice of an enquiry and of clause (3) of Standing Order 12 which provides that the order of dismissal from service shall be in writing and will state the reason for the action taker), which necessarily implies that this order will be communicated to the employee."

13. In the case of Messrs Dawood Hosiery Mills, Karachi v. Hazrat Mohammad Yousaf and 2 others (P L D 1975 Kar. 312) it was observed: "It would appear that the termination order has to be in writing and that it must disclose the cause of termination. Although the provision does not explicitly state that the order of termination has to be communicated to the workman, such provision has as of necessity to be read as a requirement for, in the alternative the order of termination would not be effective."

14. In the instant case, there was no order of termination, which was], communicated to the respondent.

15. In view of the above, I find no merit in this appeal, which is hereby dismissed. Appeal dismissed.