1991 PLP 888 (PLC(CS))

Date of hearing: 5th May, 1991. This is an appeal against the order, dated 6‑1‑1991; passed by the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad; whereby the grievance petition filed by the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Mr. Raes M. Mushtaq, learned Advocate for the appellant and Mr. Raja Mahmood Ali Khan, learned Representative for tic respondent and have also gone through the record and proceedings of the case.

3. The brief facts are that admittedly the respondent was employed as a workman with the appellants, when he is alleged to have been orally removed from service on 7‑9‑1988. He thereupon gave grievance notice to the appellants, which is Annexure `A/1', which is dated 15‑9‑1988. In reply to the grievance notice, Annexure A /2, the respondent was informed that he had been charge- sheeted and a copy of the charge‑sheet, Annexure A/3 purporting to be dated 8‑9‑1988 was sent to the respondent. He replied to the charge‑sheet on 26‑9‑1988; vide Annexure A/4. The domestic enquiry was fixed on 11‑10‑1988, when the respondent failed to attend, therefore, it was adjourned to 25‑10‑1988, which was also declared a holiday and consequently, it was fixed on 1‑11‑1988. According to the respondent, he attended the enquiry on 1‑11‑1988 and signed the enquiry papers, whereas according to the appellants, the respondent was absent and the enquiry proceedings were ex parte. On the basis of enquiry report, the respondent was dismissed, vide Annexure A/9, dated 30‑11‑1988. On 14‑1‑1989, vide Annexure A/7, the respondent again sent a grievance notice, alleging that he had attended the enquiry wherein the charges were not proved against him and, therefore. he demanded to be reinstated in service. In reply to this grievance notice. a letter, Annexure A/8, dated 2‑2‑1989 was sent by the appellants informing the respondent that he was found guilty of the misconduct as he was dismissed from service, vide order, dated 30‑11‑1988, Annexure A/9, the copy of which was also sent to him Thereafter, the respondent filed grievance application before the learned Labour Court which was resisted by the appellants on the ground that grievance petition was time‑barred and the charges were proved in the domestic enquiry.

4. With regard to the limitation, there is no evidence to show as to when the order of dismissal, Annexure A/9, dated 30‑11‑1988 was served upon the respondent. Even, otherwise under section 25‑A of Industrial Relations Ordinance, 1969, the respondent did have 3 months' time to bring his grievance to the notice of his employer. Thus, grievance notice, dated 14‑1‑1989, Annexure A/7 was within 3 months of the dismissal order, dated 30‑11‑1988 and, therefore, it cannot be said to be time‑barred.

5. The only question that requires to be considered is whether the charges against the respondent were proved in the domestic enquiry. The charge against the respondent is that during the duty hours on 5‑9‑1988; due to his negligence, he caused damage to Card Machine‑ No. 36 which caused financial loss to the appellants. Only 2 witnesses, namely, Abdul Hameed and Muhammad Ashraf are shown to have been examined in the enquiry and they stated that the respondent was working on Machine No. 36; when he and other workers went out of factory to take tea and during their absence the machine was damaged. These witnesses are not clear as to whether they were working in the same room when they saw the respondent going out and the machine being damaged. If, they were working in the same room, it does not appeal to reason that they would not have stopped the machine which was allegedly running unattended so as to prevent the damage If they were not working in the same room, then, they could not have seen what they have alleged to have seen. It also does not appeal to reason that there will be no foreman or overall Incharge who would have detected that the machine was running unattended. Even, in the charge‑sheet, it is not alleged, that because the respondent had left the machine unattended; therefore, it was damaged. Besides these 2 workmen who are not experts as to depose about the damage to the machine or the extent of the damage, no technical person was examined to prove the damage to the machine and its cause.

6. The conduct of the enquiry as well as overall conduct of the appellants also does not appear to be above suspicion. Respondent contends that he had participated in enquiry and signed the papers, but, because in that enquiry, the charge was not proved, therefore, those papers have been destroyed and the fake papers have been produced. The Enquiry Officer has not maintained day to day diary of the proceedings to show as what proceedings tool; place on each date of hearing and why it did not proceed and whether the respondent was absent or present. Even, in the deposition of the 2 witnesses examined, there is no note that the respondent was called absent and did not cross‑examine the witnesses. The appellants had examined before Labour Court two witnesses, including Factory Manager Ikramuddin, who admits that he was not present in the enquiry on 1‑11‑1989 and, therefore, he could not say, who was present or absent. Thus, there is oral word of the respondent that he had participated in the said enquiry as against the oral word of the Enquiry Officer, Qaiser Khalil who states that the respondent did not attend the enquiry. Even, the enquiry report, Annexure R‑2 shows that the Enquiry Officer did not apply his mind. He had not discussed the evidence of the witnesses, but, he merely stated, that he saw no reason to disbelieve the witnesses and therefore held the respondent guilty of the charges. The Enquiry Officer has held that the machine was damaged because of the wilful absence and negligence of the respondent I have already pointed out that there was no charge of wilful absence against the respondent‑

7. As pointed above, even overall conduct of the appellants is not above suspicion. They did not serve the charge‑sheet upon the respondent till he gave the notice, Annexure A/1. The charge‑sheet which purports to be dated 8‑9‑1988 was sent to the respondent on 22‑9‑1989 in reply to the grievance notice. The dismissal order is not proved to have been served upon the respondent, till again he gave grievance notice, Annexure A/7, dated 14‑1‑1989. Even, then the dismissal order was not sent to the respondent till after 17 days when it was sent alongwith the reply to the grievance notice, dated 2‑2‑1989. The appellants had admitted in para. 9 of the written statement that the grievance notice, dated 14‑1‑1989 mentioned in para. 7 of the grievance application was received by them and it was replied. This grievance petition was filed on 14‑2‑1989 viz., after the grievance notice Annexure `A/7' and reply to the grievance notice, Annexure A/8. Strangely, it was suggested to the respondent in cross‑examination that he riled the grievance application without serving the grievance notice to which the respondent being uneducated replied in affirmative. This incorrect answer by the respondent can be explained to be due to his lack of education and understanding, but strangely the witness of the appellants, Ikramuddin has gone back on the pleadings of the written statement and stated that the respondent had not given any grievance notice before filing the grievance application, therefore, it was not maintainable in law. However, in his cross‑examination, it has been admitted by the witness that the respondent did give grievance notice on 14‑1‑1989. All this conduct of the appellants and their witnesses shows that they did not come to the Court with clean hands and had tried to suppress the facts and to misguide the Court. Under the circumstances, the words of the respondent appear to be more plausible and believable that he did attend the enquiry, but, those papers were not produced.

8. However, I have already held that the charges were not proved against the respondent and the report of the Enquiry Officer does not disclose that he had applied his mind properly to find out if charges were proved or not. The dismissal order passed on such enquiry or enquiry report is not tenable and has rightly been set aside by the learned Labour Court. I, therefore, find no merit in this appeal which is accordingly dismissed. H.B.T./1937/Lb. S Appeal dismissed.