1994 PLP 417 (PLC)

The aforesaid facts on your part are acts of wilful insubordination and highly riotous and disorderly behaviour. Show cause within 48 hours on receipt hereof as to why disciplinary action against you be not taken.

3. The charge‑sheet issued to Qadir Bux pertaining to the incident of 9th June reads as under:‑ "It has been reported against you that on 9th June, 1988 at 9‑45 a.m. you with the help of other co‑workers illegally and unauthorisedly broke lock of residential "D" type Quarter No. D‑1/12 that was earlier vacated by Assistant Head Mistree. You also helped one Mr. Noor Ahmed to occupy the quarter and put his luggage inside the quarter. You are thus responsible for displaying riotous and disorderly behaviour and for a commission of Acts, subversive of discipline. You are charge‑sheeted for the aforesaid offences. Show cause within 48 hours of the receipt of the charge‑sheet 'as to why disciplinary action against you be not taken."

4. The petitioners state that they were never served with copies of the charge‑sheets and were surprised to receive the letters of enquiry. The hearing was fixed on the 23rd of June. However on that date the Enquiry Officer was not available and the matter was adjourned. They were not allowed to partake in the proceedings on the next date and through the device of ex parte proceedings, they were dismissed from their jobs. They were run down because they had been espousing the cause of the workers. They had sent grievance notices, but no heed was paid to the same. They had therefore filed the petitions.

5. The petitions came to be resisted on various grounds including the bar of time and lack of territorial jurisdiction. As a1Sainst Ghulam Nabi and Karim Bux, the additional plea raised was that they were not workmen.

6. The petitioners were their own witnesses. The respondent examined Rao Muhammad Shafaat, General Manager, Liaquat Ali Khan Administration Manager, S.P. Lodhi, a Labour leader and 'star Ali, a postman. The respondent's witnesses were cross‑examined in the case of Ghulam Nabi and by consent their evidence was to be adopted in the other cases.

7. The Labour Court repelled the contention in regard to the bar of limitation, and territorial jurisdiction, but finding the other issues in the affirmative dismissed the petitions, culminating o these appeals.

8. Karim Bux and Ghulam Nabi were yard Supervisors. They detailed their duties in their affidavits. Some questions were asked from them in cross?-examination. But there is no job description corm from the respondents, nor the letters of appointment as Yard Supervisors However it is not denied that they could not take any disciplinary action against any worker. All that was open to them as Cane Supervisors was to report against them. It is also admitted that there was an Assistant Manager, it Manager and the Head of the Cane Department over them. It is settled law that designation or even salary is not decisive. It is only the nature of duties performed by him which can establish whether he is a workman or holding any supervisory office. I am afraid I cannot agree with the findings of the learned Presiding Officer on that score. They are workmen.

9. It is beyond the pale of any controversy that the appellants did receive the notices of the enquiry and according to them they had also been there to partake in the same. There was however no trace of the Enquiry Officer. It is asserted on their behalf that eventually when the proceedings were to begin on the 4th of July, they were not allowed to attend the same and later learnt that the matter had proceeded ex parte, followed by the order of their dismissals.

10. The appellants as the record shows have been vocal and assertive. It has not been alleged that they had made any remonstrance, verbal or otherwise with the General Manager or anybody else. They had also not sent any telegrams to the respondents, or for the matter of that, the Labour Directorate or any other authority. The stand adopted by them is too naive. Clearly they were on the war path with the respondents and had opted for boycotting the proceedings, and if they had boycotted the proceedings and allowed the witnesses to have a free say un-rebutted and un-challenged, it was their own doing and they must face the consequences. (See Dawood Cotton Mills v. Guftar Shah PLD 1981 Supreme Court page 225 and Rashid Ahmed v. Friends Match Works PLD 1989 Supreme Court 503).

11. However the case of the appellants is that they were not served with the copies of the charge‑sheets, and long drawn arguments have been made on that aspect of the matter.

12. According to the respondent the copies of the charge‑sheet was attempted to be served by hand delivery but the same had been refused. Thereupon they had despatched the charge‑sheets through registered letters on their addresses in the factory and also through their union. Apart from this, they had also got these notices pasted on the three Notice Boards in the factory. The respondents had also examined Akhtar Ali the postman, and according to him Ghulam Nabi had refused to accept the delivery and Allah Jurio was not available, but the registered letters had been served on the others. Allah Jurio being a member of the working committee could not be ignorant of all this. He has stated that all the petitioners were known to him. Jhok Sharif where the mill is situated is a small town, and there appears to be no reason to look askance at this testimony. Otherwise too as held in Khuda Bakhsh v. Muhammad Yaqub etc. 1981 SCMR page 179 no provision of law requires the production of postal Acknowledgement. The proof of its despatch is enough.

13. An attempt was made to establish that an application had been made to the authorities for the grant of the copy of the charge‑sheet as the same had not been supplied to them. It is alleged to have been handed over to one Ashfaq who was the private Secretary of the General Manager. Rao Muhammad Shafaat was confronted with the same, but according to him, his Private Secretary was Rizwan and not Ashfaq, and he has stated that even the seal thereon was serious. As the authenticity of the signature of even Ashfaq was disputed, the latter should have normally been produced but that was not done. Any way this letter or application by itself will be far from establishing that the Notices had not really been served.

14. It was held in Rashid Ahmed v. M/s. Friends Match Works PLD 1989 Supreme Court page 503 that notice if properly addressed (and there is no question that these were not properly addressed, at least through the union, which address every one gave in the grievance notice and the petitions), then the burden shifts, and it cannot be said that the same had been discharged. There are a number of decisions from this Tribunal wherein it has been held that clause (iv) of Standing Order 15 did not require the service of any charge sheet upon the workman who is alleged to have committed misconduct. But the misconduct must be brought to his notice in writing within one month of its commission. See Muhammad Shakeel v. Star Textile Mills Limited 1983 PLC 383, Zaheer Baig v. Burmah Oil Mill 1982 PLC 759.

15. It was however alleged that Ainul Haque the Enquiry Officer was not examined during the proceedings. It appears that summonses had been issued but he was not to be found at the earlier address. According to the respondents they, were not aware of his whereabouts It hardly makes any difference in the case because the appellants did not face him at all and could not complain of any partiality or bias during the proceedings.

16. The witness as to be seen had furnished all the details of the disorderly behaviour of the appellants in the course of the three incidents is their statements at the Enquiry. The orders of their dismissal are unexceptionable.

17. As a result no fault can be found with the impugned orders. I will therefore uphold the same and dismiss the appeals. H.B.T./2282/Lb.S ?????????????????????????????????????????????????????????????????? ??????????? Appeals dismissed.