1983 PLP 37 (PLC)

(i) The Enquiry Officer was disqualified from holding the enquiry and the enquiry proceedings are invalid ; (ii) The decision of the learned Labour Court is vitiated by the fact that the Enquiry Officer was not examined before the learned Labour Court despite the charges of prejudice and malice against him ; (iii) The defence evidence has not been considered but has unreasonably been discarded both by the Enquiry Officer and the learned Labour Court ; (iv) There was no evidence before the Enquiry Officer of the learned Labour Court to establish misconduct on the part of the appellant. Before examination each of the above contention of Mr. Ch. Rasheed Ahmed I would like to refer to the discussions held by the respondent company and the C. B. A. therein with the Officers of the Labour Depart ment in regard to the question whether the respondent company was entitled to call workmen for duties on off‑days and whether the workmen were to be given overtime for working on off‑days or holidays in lieu thereof. Mr. Hameed Lakhani, Personne Officer in the respondent company, has deposed before the learned Labour Court that on 8th June, 1981, the management had put up a notice on the factory's Notice Board requiring certain workers to report for duty at the factory on 10th June, 1981, and that a copy of this notice was sent to the Directorate of Labour. He has further testified that in connection with the dispute between the management and the C. B. A. in connection with work done by workmen on off‑days a meeting was held on 15th June, 1981, with Mr. Mohib Habib of the Directorate of Labour which was attended by him on behalf of the management and by Shah Zareen, the General Secretary of the Workers' Union. According to the minutes of that meeting, an attested copy whereof was produced before the learned Labour Court, it was decided that as the process of rubber and tyre factory is exempted under the Sind Adult Workers (Exemption) Rules Ordinance, therefore, the management was entitled to take work on overtime and that further under section 35 of the Factories Act the Management was entitled to give substitute holidays for weekly rest day, the Union was, therefore, advised to refrain from taking any agitational action on this issue.

5. Reverting to the first contention of Mr. Ch. Rasheed Ahmed, namely whether the Enquiry Officer was disqualified from holding the enquiry, the learned counsel based his contention on the ground3 :‑ (a) That in respect of the very incident that the Enquiry Officer was to hold an enquiry, he had held joint meeting with the Directorate of Labour ; (b) that being a subordinate of S. H. Jaffer, who was a witness in the enquiry against the appellant, the enquiry officer could not be expected an independent and fair finding ; (c) that the Enquiry officer had disallowed certain questions which the appellant wanted to put to different witnesses ; and (d) that the appellant, vide the letters, dated 5th July, 1981 and 10th July, 1981, had brought to the notice of the management that the Enquiry Officer was not fair and impartial and reque3ted for change of Enquiry officer but his objections were overlooked.

6. Although both the appellant and the General Secretary of the Workers' Union, Shah Zareen, in their evidence before Labour Court asserted that the Enquiry Officer, Muhammad Aslam had participated in the discussions with the Directorate of Labour and the Workers' Union, over the issue off‑days and payment of overtime, this was strongly denied by Mr. Lakhani, who admittedly had represented the respondent Corpora tion in the discussion with the Directorate of Labour Mr. Lakham has produced the minutes of the meeting and discussions with the Directorate of Labour, as certified by the Assistant Director, Labour, with whom the discussion were held. The minutes of the meeting show that only Mr. Lakhani on behalf of the respondent company and Shah Zareen on behalf of the workers' Union participated in the discussion and Muhammad Aslam, Enquiry Officer, did not participate in these discussions. Mr. Ch. Rasheed Ahmed sought to rely on the fact that though the appellant in his grievance petition had alleged that Muhammad Aslam participated in those discussions but the respondent company, in its reply statement, had not specifically denied this fact. The failure on the part of the respondent company to do so is immaterial in view of the very tangible and reliable evidence in the shape of the minutes of the meeting and discussion. I am, therefore. of opinion that the allegation of the appellant that the Enquiry Officer; Muhammad Aslam, had participated in the discussion with the Directorate of Labour, on the incident in question is not well founded. No doubt it has been admitted by Mr. Lakhani that Muhammad Aslam alongwith him had participated in a meeting with the officers of the Directorate of Labour which was held on 3rd October, 1981. However, Mr. Lakhani has explained that the said meeting was wholly unconnected with the allegations against the appellant. It see no reason to doubt the statement of this witness specially as there is no allegation that the meeting on 3rd October, 1981, was in connection with the matter which the Enquiry Officer was required to deal with. In fact, the Enquiry Officer had long before completed the Enquiry proceedings and submitted his enquiry report on 17th August, 1981, to the authorities.

7. The second objection of Mr. Ch. Rasheed Ahmed against the Enquiry Officer is founded on the appellant's letter, dated 10th July, 1981, addressed to the Enquiry Officer, wherein he has stated that both the Enquiry Officer as well as witness S. H. Jaffer belonged to the Administration Branch and as witness S. H. Jaffer was in over‑all charge of the Administration Branch also, therefore, Muhammad Aslam was not the proper person to hold the enquiry. It may be pointed out that the requirement of law is that the employer must hold independent enquiry against a workman who is charged with misconduct, for which it is proposed to punish him with dismissal from service. If witnesses S. H. Jaffer had been the complaint and directly concerned with the incident on which the charge was founded that objection might have force, but witness S. H. Jaffer was neither directly involved in the two incidents nor had he any personal knowledge of the incidents all that he has stared in the domestic enquiry is that he received a report to the effect that on 11th June, 1981, the appellant had instigated the workers to go on strike and that on 12th June, 1981, he had taken cards of the workers from the time‑keeper, punched the same and misbehaved with the time‑keeper. This report which was submitted to him by witness S. M. Ali was accompanied by four reports submitted to S. M. Ali. by Ishtiaq Ahmad. Fareeduddin, Nasir Fareedi and Sher Zaman. It was on the basis of these reports that S. H. Jaffer has issued the charge sheet to the appellant. Since witness S. H. Jaffer had no direct concern with the two incidents in respect of which the appellant was charge‑sheeted the A mere fact that he issued charge‑sheet to the appellant or he appointed an Enquiry Officer who was subordinate to him would neither disqualify the Enquiry Officer appointed by him from holding the enquiry proceeding nor vitiate the enquiry proceedings. In the case of from the Indian Jurisdiction reported as Sridharah Motor Service v. Industrial Tribunal Madras ((1959)

1. L L J 380), a learned Single Judge of the Madras High Court observed that in most large establishments enquiry into allegations of misconduct by a member of the subordinate staff is held by some one placed above him, and ‑so long as the principles of natural justice are not violated, the person against whom the enquiry is being conducted will not be heard to say that the enquiry is being held by a person in the employment of the management. There are, however, more direct authorities of our Courts. In the case Muhammad Sultan Ahmed v. National Bank of Pakistan (1979 P L C 492), it was held by this Tribunal that the mere fact that the Enquiry Officer was subordinate to the punishing authority was not sufficient to prove bias on the part of the Enquiry Officer. It is true that witness S. H. Jaffer was not the punishing authority but being the over‑all incharge of the. Administration department, no fault could be found with his decision to appoint an officer of his Department to hold domestic enquiry against the appellant.

8. In the case Muhammad Siddiyue v. Premier Tabacco Industries Limited (1981 P L C 670), it was held by this Tribunal that a person was not disqualified from appointment as Enquiry Officer merely because in course of his official duties a report of the incident was made to him.

9. In the case Karachi Pipe Mills Limited v. Mir Muhammad (P L D 1982 Kar. 537), the question which fell to be considered by a Division Bench of our High Court was whether the mere fact that the Enquiry Officer had issued a show‑cause notice to the defaulting workman disqualified him from conducting the enquiry Proceedings. It was held by the Division Bench that in the absence of evidence or indication showing that the Enquiry Officer was prejudiced or biased against the workman or was having a pre‑determined mind, the mere fact that he had ordered the issuance of show‑cause notice to the workman did not disqualify him from holding the enquiry proceedings.

10. On careful consideration of all the circumstances of the case and the relevant authorities on the subject I am included to the view that the mere fact that Enquiry Officer was appointed by and subordinate of S. H. Jaffer, who had appeared as witness in the enquiry proceedings, did no by itself disqualify the Enquiry Officer from holding the enquiry proceedings. If this where so, in cases, were the employer himself or the Principal Officer in‑the establishment is a witness, no Officer of the Establishment could be appointed as the Enquiry Officer because every such person would be a subordinate of the employer of the Principal Officer. Of course, care has to be taken in ensuring that the Enquiry Officer has acted independently and impartially and that he has not been influenced in the decision by any witness though witness was his superior. Moreover, as pointed out earlier, Mr. S. H. Jaffer was not a direct witness of either incident in respect which the appellant was charged of with misconduct but had merely received report of the incident in the course of his normal duties and himself had made no enquiries into them.

11. It was next asserted by Mr. Ch. Rashed Ahmed that prejudice or bias on the part of the Enquiry Officer should be inferred by reason of the fact that he had disallowed certain questions which the appellant wanted to put to different witnesses. It may, however, be pointed out that the appellant does not appear either in his letter, dated 5th July, 1981, or his letter, dated 10th July, 1981, to have made any grievance to the effect that the Enquiry Officer has disallowed any question. Moreover, an inspection of the enquiry proceeding does not support the allegation that any question wag disallowed by the Enquiry Officer which the appellant wanted to put to the witnesses. Finally; there is no indications as to what those questions were which were‑ disallowed by the Enquiry Officer. The Supreme Court in the case of Brooke Bond (Pakistan) Limited v. Pakistan and others (1960 P L C 201), has held that the onus lay on the employee to establish that the material questions had not been allowed to be put to the witnesses to the prejudice of the employee. In the instant case, this onus has not been discharged by the appellant. In fact there is no evidence at all indicating that any question had been disallowed by the Enquiry Officer.

12. Lastly, on this issue,. I would refer to the two letters, dated 5th July, 1981 and 10th July, 1982, written by the appellant objecting to the holding of the domestic enquiry by the Enquiry Officer, Muhammad Aslam. The letter, dated 5th July. 1982, is not on the record of the learned Labour Court but the reply thereto of the management, dated 6th July, 1981, together with Urdu translation thereof was filed by the appellant. From the reply of the management, it appears that an allegation of partiality was leveled against the Enquiry Officer. It is not known on what grounds this allegation was made. However, the management denied the allegation of partiality against the Enquiry Officer and assured the appellant that his allegations and apprehensions were baseless. In his second Letter, dated 10th July, 1981, the appellant objected to Muhammad Aslam holding the enquiry by reason of the fact that both he and witness S. H. Jaffer belong to the Administration Department. 1 have already dealt with this aspect of the case and held have that in the circumstances of the case the mere fact that the Enquiry Officer was officially subordinate to S. H. Jaffer did not disqualify his from holding the enquiry proceedings in the absence of any evidence indicating prejudice or bias on his part.

13. The second ground on which Mr. Ch. Rasheed Ahmed assailed the impugned decision of the learned Labour Court was the failure on the part of the respondent company to examine the Enquiry Officer in the Labour Court despite the fact that allegations of panality and bias have been levelled against him by the appellant. In support of his contention, Mr. Ch. Rasheed Ahmed. relied upon the decision Allwin Engineering Industries v. Khursheed Ahmed (1978 P L C 312), Pakistan Engineering Co. Ltd v. M. Sharif (1978 P L C 247), Pakistan Railways v. Syed Tafawat Hussain (1980 P L C 24) and Abdul Rehman v. Mercantile Industries Limited (1981 P L C 649). The case of Muhammad Sharif is quite distinguishable as in that case it was held that the enquiry was vitiated as the Enquiry Officer had personal knowledge of the incident. In the case of Khursheed Ahmed also the finding that the enquiry proceed ings stood vitiated by reason of the non‑examination of the Enquiry Officer was based on the special circumstances of that case. It was found that the diary of the proceedings had not been maintained by the .Enquiry Officer and that further there was an allegation that the accused workers tried to avoid the enquiry proceeding but this allegation did not find support from the evidence on record. It was held in those circumstances that the Enquiry Officer ought to have been examined to furnish explanation regarding the enquiry: In the case of Syed Tafawat Hussain it was alleged by the respondent that he was not afforded any opportunity to defend himself and the domestic enquiry was mere sham false. He examined Syed Sarwar Shah to support his contention. No evidence was led by the management to rebut the above allegation made by the respondent. It was in these circumstances that it was held by my learned predecessor that as the Enquiry Officer was not examined to rebut the allegations made by the respondent, the enquiry proceedings could not be relied upon.

14. In the case of Abdul Rehman it was held that if the employer leads no evidence to prove justification of dismissal order on merits the Labour Court would be justified in accepting the employees appeal by holding his dismissal unwarranted on factual plane. In the instant case the position is that the enquiry proceedings have been proved through the appellant himself who had admitted that he signed every page thereof. The Enquiry proceeding having been admitted by the appellant himself, the necessity of examining the Enquiry Officer did not arise ; Futhermore, the respondent company, the instant case, examined Hameed Lahkani. Personnel Officer, who gave evidence in support of the allegations against the appellant.

15. In the cases Zarnoosh v. Globe Textile Mills Ltd. (1982 P G C 510) and Anwar Shah v. Pakistan Machine Tools Factory Ltd. (1982 P L C 613), the contention that the Enquiry Officer must be examined in all cases was repelled and it was held that if there was sufficient admissible material before the Court to indicate that a fair and impartial enquiry was held, it was not necessary to examine the Enquiry Officer and that the non‑examination of the Enquiry Officer in such a case would not vitiate the enquiry proceedings.

16. It was next contended by Mr. Ch. Rasheed Ahmed that neither the Enquiry Officer nor the learned Labour Court has considered the defence evidence and both have unreasonably discarded the same. The Enquiry Officer has considered the evidence of the defence witnesses in paras. 8, 9, 10 and 11 of the Enquiry Officer's report but discared them mainly on the ground that the wages of most of the workers of the Maintenance and Electrical Departments were deducted on 11th June, 1981, without there being any protest/representation from the Union or the workers against such deductions, which indicated that they had not worked on the said date and that further most of the defence witnesses had admitted the fact that 11th June, 1981 was their off‑day, The learned Labour Court has also, at page 6 of its judgment considered the evidence of the defence witnesses but has taken the view that it would not be relied upon as not only they were interested in indicating that they had not taken part in the strike but they were expected to support an office‑bearer of the union. .

17. In view of the above position, I am of the view that the contention of the learned counsel in this behalf is not well founded.

18. This brings me to a consideration of the real issue in the case whether the charges against the appellant have been duly established. I would first take up the charge of the alleged incitement by the appellant to the workers on 11th June, 1981 to go on strike. As already indicated, in the domestic enquiry, as many as seven witnesses were examined on behalf of the management in support. of the first charge. Out of these seven witnesses as already shown, witnesses S. H. Jaffer had no personal knowledge of the incident and merely received reports from S. M. Ali and others. The evidence of management's two other witnesses, S. M. Ali and Muhammad Fareeduddin, similarly does not directly implicate the appellant as they admittedly did not see the appellant inciting the workers to go on strike. Witness S. M. Ali the Plant Engineer has stated that on 11th June, 1981 he had taken round of the various Departments in the factory and found that the workers of Electrical Shop had struck work whereupon he made such a report to Mr. S. H. Jaffer. Similarly Fareeduddin also does not speak of having seen the appellant inciting the workers to go on strike and states that on 11th June, 1981 he found that the workers of general shifts in the Electrical Shop had struck work. On his making enquiry from them he learnt that the appellant had instigated them to go on strike. He adds that he thereupon made such report to the plant Engineer. S. M. Ali. Witness Nasir Alt likewise does not speak of having seen appellant inciting workers to go on strike. His evidence, however, is important as he is the Electrical Engineer Incharge of the Machine Shop and the workers who had gone on strike were under him. He states that the workers had gone on strike on 11th June, 1981 and when he made enquiries from the appellant the latter told him that it was for the administration to get the work done, three other witnesses, however, have directly implicated the appellant. Witnesses Ishtiaq Ahmed, Electrical Engineer, statned that the appellant case to the Electrical workshop on 11th June, 1981 at about 8.50 a. m., and told the workers that until he gave orders to them they should do no work and in consequence of these directions of the appellant the workers struck work and did not do any work until evening. The next important witness against the appellant is Nawab Hussain, Electrical Foreman, who like witness Ishtiaq Ahmed has testified that the appellant came into the Electrical Workshop at 8.30 a.m. and asked the workers not to work until he directed them to do so. The witness added that he made such a report to the Electrical Engineer, Ishtiaq Ahmed. The last witness who directly implicated the appellant is Masood Hassan (Maintenance) (Workshop Foreman). This witness also testified that the workers had struck work on the instigation pf the appellant and that when he ques tioned them in this behalf the appellant asked him to talk to him. All these witnesses was cross‑examined at some length by the appellant but the appellant but they remained unshakable in their evidence. Strong support to the fact that there was a strike in the respondent factory on 11th June, 1981 is provided by the report dated 12th June, 1981, which the management made to the Labour Department complaining to illegal strike by the workers on 11th January, 1981 from 8.45 hours to 16‑30 hours.

19. No doubt the defence witnesses have tried to show that there was no strike in the respondent establishment, but in view of the evidence discussed above I am unable to rely on their evidence. That some incident did taka place in the respondent establishment on 11th June, 1981 is even admitted by the appellant himself in his explanation to the charge‑sheet. Furthermore, it appears that the workers involved in the strike were not paid their wages for 11th June, 1981. This has not only been admitted by some of the workers examined as defence witnesses but also has be,‑n admitted by Shah Zareen, the General Secretary of the workers' Union before the learned Labour Court. It is difficult to believe that the workers and their Union would not have protested against the non‑payment of the wages of the workmen for 11th June, 1981 if they had actually worked and not gone on strike. No doubt defence witnesses Raj Muhammad, Muhammad Rafique, Muhammad Rafiq Shahid, Abdul Qayoom, Shaikh Miran and Shamshad Hussain have asserted that they did work on 11th June. 1981 but it is not possible to rely on their evidence in this behalf as firstly if they had not done so they would not have failed to protest against non‑payment of wages for 11th June, 1981, and secondly, they have failed to adduce any tangible evidence as to the nature of the work done by them or any record of such work. It might also be pointed out that despite the fact that some of the workmen admitted that 11th June, 1981 was their off‑day, they tried to show that they had come to the factory and worked therein, which would be quite unusual.

20. In respect of the incident on 12th June, 1981 the management examined two witnesses before the Enquiry Officer, namely Arshadullah Time‑keeper, and Sher Zaman, Security Guard. Both supported the charges against the appellant that he did snatch the cards of the workers, punch the same and misbehaved with the time‑keeper. Although the appellant tried to show that he had come to the factory on 12th June, 1981 at about 8.19 a.m., whereas the incident concerned is said to have taken place at about 8.00 a.m. this slight difference in the time is not very material. It is possible that the appellant may have punched this card at 8.19 a.m. as alleged by him, after the incident which has formed the subject‑matter of the charge against him. Most of the defence witnesses examined by the appellant in his defence expressed ignorance of the incident as according to them they came later after 8.00 a.m.

21. On a careful consideration of all the circumstances of the case I am satisfied that a fair and impartial enquiry was held against the appel lant and there was tangible evidence led in the domestic enquiry and before the learned Labour Court to establish the charges of misconduct against the appellant. I would, accordingly, concur in the finding of the learned Labour Court and would dismiss the appeal.