1994 PLP 376 (PLC)

2. He was issued a charge‑sheet on 15‑1‑1990 which he had replied to. As this was not found to be satisfactory a letter of enquiry was issued on the 18th of January, 1990 and Ishaque Memon was appointed as the Enquiry Officer. The latter had examined Muhammad Bashir, Security Guard. Khan Muhammad who was the Shift Incharge, Banaras Khan another Security Guard and Bahadur Khan, Assistant Security Officer and 5 witnesses had been examined on behalf of the defence also, namely Akbar Ali, Muhammad Ramzan, Lal Bukhsh, Muhammad Zaki and Hadi. As the petitioner was found in the report to be guilty, he was dismissed on 19‑2‑1990.

3. The petitioner had served a grievance notice on 1‑3‑1990 which was replied to and the grievance petition followed before the Labour Court.

4. The petition was resisted and all the averments in the petition came to be denied.

5. The petitioner was his own witness while Liaquat Ali Khan, Manager, Administration, Shahnawaz, Khan Muhammad and Muhammad Bashir were examined on behalf of the respondent.

6. The Labour Court for the reason given by it allowed the petition with full back benefits, resulting in this appeal.

7. At the Court of Enquiry as well as before the Labour Court the material witnesses of the incident were duly produced and they have given a consistent account of the circumstances in which the respondent came to be nabbed by them. They have also mentioned that about 10 kilograms of copper winding wire was also lying nearby. According to Khan Muhammad it was because of the fall of this copper that his attention had been drawn.

8. On the showing of the respondent himself there is no bad blood between the witnesses and him. Nor is there on the record any motive for false implication. The learned Presiding Officer however discarded the evidence of the witnesses because of some discrepancies. I am afraid, they have spoken with one voice that the respondent was apprehended outside the boundary wall and the copper wire of the Mill was also there. Liaquat Ali, the Manager, Administration knew nothing about the happenings and the circumstances in which the respondent had been apprehended. If he said that the wire was inside the wall of the Mill it would not affect the case as his version was only derivative. Bahadur Khan has also not supported the prosecution case fully but he also is not an eye‑witness. I am of the opinion that in the circumstances of the case the testimony offered by them has a ring of truth and should not have been disbelieved.

9. Another reason which prevailed with the learned Presiding Officer was that the Enquiry Officer was not examined It has to be seen that the respondent himself has not a word to say against the Enquiry Officer or his conduct during the course of the Enquiry. He had been given full opportunity to cross‑examine the witnesses. and the representative who assisted the respondent made full use of it. The respondent had also examined 5 witnesses in defence. In the circumstances the non‑production of the Enquiry Officer was of no significance whatsoever.

10. Another reason given by the learned Presiding Officer was that the enquiry report also had not been produced before the Labour Court.

11. It appears that the Enquiry Officer namely Ishaque Memon had met with a road accident on 23‑6‑1990 at Thatta. He is stated to have been shifted to Agha Khan Hospital where he remained under treatment for 2 months. Later he was shifted to Wali Bhai Rajputana Hospital at Hyderabad where he remained confined for another 4/5 months. He had succumbed to the injuries a month or so later. It is alleged that the inquiry papers had remained with him when he died on 27‑3‑1991. The papers not having been located during the pendency of the proceedings before the Labour Court could not be produced. However, an application was made for bringing it on record before this Tribunal, and in spite of notice, no rejoinder was filed on behalf of the respondent. The application was not opposed during the hearing and it was thereafter that the documents were admitted on the record per order dated 11‑11‑1993.

12. The fact that the suspension of the respondent was longer than enjoined under the law would hardly be available to vitiate the domestic proceedings and the findings thereof. Nothing either turns on the fact that though information had been lodged with the police, yet not a word has been mentioned as to what happened therein. Even the award of the full back benefits was faulty as there was not a word in the proceedings anywhere that the respondent was jobless.

13. The impugned order can hardly be sustained, I will therefore set it aside and allow the appeal. H.B.T./2281/Lb.S.?????????????????????????????????????????????????????????????????????????????? Appeal allowed.