2008 PLP 220 (PLC)

ARSHAD NOOR KHAN, J.

This appeal under section 47(3) of Industrial Relations Ordinance, 2002 has been filed by the appellant against the judgment, dated 12-4-2007 passed by the learned Presiding Officer, Sindh Labour Court No.III at Karachi in Labour Application No.261 of 2005 Umer Khitab v. Messrs Knitwear Industries whereby the application filed by the applicant was dismissed. The facts as stated in the grievance petition of the applicant in brief are that .he was the permanent employee of respondents for last four years as Machine Operator and no complaint was ever made regarding his conduct, work and over all performance. It is further alleged in the application that the management of the respondents was habitually violating the labour laws and used to take twelve hours' duty from the workers without payment of extra charge or overtime. It is further stated in the application that the respondents deprived the workers including the appellant from their legal rights and benefits as letter of appointment, Bonus, 5% Annual casual medical leave, registration under the scheme of E.O.B.I. etc. It is further stated in the petition that on 1-10-2005 the work of the factory was stopped and the services of the workers were terminated without any sufficient reasons and notice. The appellant and his other colleagues served notices dated 24-10-2005 on the respondents, which were received by them, who accommodated to his colleagues and he was not reinstated. It is further averted in the application that more than two hundred workers were working in Gray, Dying Finishing, Maintenance, Quality Control and other departments of the respondents' factory and all the Labour Laws including Standing Orders Ordinance, 1968 and I.R.O., 2002 are fully applicable on the respondents. It is further alleged in the petition that the services of the appellant were terminated orally without holding any enquiry or service of any charge-sheet on him as such the appellant served grievance notice on him, but the respondents did not pay any heed to his genuine request, hence he filed application for his reinstatement in service before the learned lower Court. Notice of the said application was served on respondents, who filed their written statement, inter alia, denying all the allegations contained therein. It is further stated in the written statement that the appellant is habitual absentee from the duties and he remained absent from the duties from 13-10-2005 as such he was served with the notice which was not replied by him as such a charge-sheet was served on him and a full-fledged enquiry was conducted, which was participated by the appellant and the Enquiry Committee after going through the evidence, came to the conclusion that the appellant was guilty of the charge, as such in view of the recommendations of the enquiry report, the services of the appellant were terminated. The receipt of grievance notice sent by the appellant has been specifically denied by the respondents. The maintainability of the application as well as jurisdiction of the learned lower Court were also disputed by the respondents. After pleadings of the parties, the appellant filed his affidavit-in- evidence on 23-3-2006 along with the photocopies of the grievance notice under section 46 of I.R.O., 2002 and other documents. He was also cross-examined by the learned counsel for the respondents. He did not lead any other evidence of any witness in his defence. The respondents examined Haseeb Hassan Khan, who produced enquiry report and proceedings as well as D.W. Muhammad Hashim son of Faqir Muhammad, the Enquiry Officer, who conducted enquiry against the appellant and also produced the proceedings of the enquiry. The learned Presiding Officer of Labour Court No.III at Karachi, after hearing the learned counsel for the parties, dismissed the B application filed by the appellant vide order, impugned herein and at the time of recording, the order, framed the following points for determination:-- (1) Whether applicant was illegally terminated from service? (2) Whether this Court has no territorial jurisdiction to proceed with the case? (3) Whether applicant is entitled to the relief of reinstatement with back-benefits? Being highly aggrieved and dissatisfied with the order passed by the learned lower Court, the appellant has preferred this appeal on the ground mentioned in memo. of appeal. I have heard Mr. Bacha Fazal Manan, Advocate for the appellant. No one has appeared for the respondents. Learned counsel for the appellant vehemently contended that the appellant served grievance notice under section 46 of I.R.O., 2002 on the respondents, but they did not reinstate him in the service and that his termination was oral and the enquiry as enunciated under the law, has not been conducted by the respondents, as such the appellant has been deprived off from his legitimate right by the respondents which fact has not been considered by the learned lower Court, as such this Court after reappraisal of the evidence, may reverse the findings of the learned lower Court. It is further contended that the applications to call the postman and sending of the admitted and disputed signatures of the appellant to the Handwriting Expert, were dismissed by the learned lower Court, without any sufficient reason as such the appellant has been denied his right protected under the labour laws. According to him the factory was closed by the respondents for a short period and after about 15 days the factory again started working and they have accommodated some of the old workers and appellant have not been accommodated by them which is discrimination on the part of respondents. According to him, the evidence available on record has not been properly considered by the learned lower Court as such the order passed by the learned lower Court may kindly be reversed and the application filed by the appellant may be accepted thereby reinstating him in service with all back-benefits. I have considered the arguments advanced on behalf of the appellant and have gone through the entire evidence available on record. The main grievance of the appellant is that he was removed from service on 12-10-2006 verbally without service of any notice on him on the pretext that the factory was going to be closed by the respondents and that no charge-sheet was ever served on him nor any enquiry was conducted to remove him from the service whereas the said assertion of the appellant has been refuted by the respondents alleging against him that he is habitual absentee from the duties and he remained absent from service from 13-10-2005 as such he was served with notice, which was received by him and he failed to reply the same, therefore, a charge-sheet was served on him and an independent enquiry was conducted against him by the Enquiry Officer namely: Muhammad Hashim, which was participated by, him and culminated against him. Admittedly the notice regarding absence of the appellant was served on him on 24-10-2005 and Mr. Muhammad Hashim was appointed as Enquiry Officer to conduct enquiry against him. The record shows that the respondents served notice on him on his wilful remaining absent from duties and conducted an enquiry, which enquiry was culminated against the appellant, vide Annexure "R/5" and the Enquiry Committee held the appellant guilty of the charge and in pursuance of the report of the Enquiry Officer the services of the appellant were terminated vide letter, dated 1-11-2005 vide Annexure "R/6". The witness of the respondents namely Haseeb Khan, has deposed about the said enquiry, which has not been refuted in his cross-examination. The respondents have also examined Enquiry Officer, Muhammad Hashim, who deposed that he had conducted a full-fledged enquiry against the appellant and he was afforded full and fair chance to participate in the enquiry and he participated in the enquiry and after appraisal of the whole evidence, he has submitted his report thereby the appellant was found guilty of the charge. The evidence of the Enquiry Officer has also not been disputed by the appellant in his cross-examination and it is a well-settled principle of law that the statement made by the witness in examination-in-chief has not been controverted in cross-examination, it will be deemed that the said statement has been accepted by the other party. Non denial of the statement of the Enquiry Officer by the appellant tantamount to admission of the assertion made by him in his affidavit-in-evidence. There is, therefore, sufficient evidence available on record to show that the appellant was not removed verbally by the respondents but because of his remaining wilfully absent from the duties and after holding a proper enquiry through an independent Enquiry Officer, he was found guilty in the said enquiry proceedings by the Enquiry Officer which followed his dismissal from the service. Learned counsel for the appellant vehemently contended that the signatures of the appellant have been forged on Annexures "R/1" to "R/4". The documents produced by the respondents from "R/1"to "R/4" are the documents which are the notice, charge-sheet and appointment of the Enquiry Officer, which bear the signature of the appellant. The appellant has disputed the said signatures which according to him, have been forged by the respondents, therefore, I have verified the signatures of the appellant on these documents viz. "R/1" to "R/4" from his admitted signatures on his main application under section 46 of I. R.O., 2002 as well as on his affidavit-in-evidence and found that admitted signatures of appellant are completely in resemblance with the signatures appearing on documents "R/1" to "R/4" as such the assertion of the appellant that his signatures on the documents "R/1" to "R/4" have been forged by the respondents is devoid of any force and has no substance. The learned counsel for the appellant has vehemently contended that the appellant served grievance notice, Annexure "A/5" on the respondents but he was not reinstated, but the appellant in his cross-examination has admitted that Annexure "A/2" which has been filed along with main application as his grievance notice, was not sent by him to his Seth Akhtar Ismail. The said admission of the appellant that he has not sent the said grievance notice, Annexure "A/2" to his Seth Akhtar Ismail is of much significance, which also shows that main application filed by him was also defective for want of proper notice under section 46 of I.R.O., 2002. Learned Presiding Officer of Labour Court No.III at Karachi has appraised the whole evidence in its true perspective and rightly came to the conclusion that the petition filed by the appellant was not maintainable and I, after reappraisal of the whole evidence available on record, have come to the same conclusion that the removal of the appellant was not on verbal order but on account of his remaining wilful absent from the duties followed by an independent inquiry, wherein he was found guilt of the charge. In such state of affairs, I do not find any justification to interfere in the order passed by the learned lower Court. The offshoot of the above discussion is that the appeal filed by the appellant has no substance, and the same is hereby dismissed in limine. H.B.T./U-1/K Appeal dismissed.