1978 PLP 198 (PLC)

Sadiq Hussain for Petitioner. Respondent in person The petitioner‑Management has brought the present application under section 47 of the Industrial Relations Ordinance, 1969 against Mr. Muzaffar Ali, respondent a workman employed in the establishment of the petitioner seeking permission to dismiss him from service on the charges of misconduct during the pendency of an industrial dispute.

2. The petitioner has contended that the respondent was an office bearer of Inqlabi Labour Union (Regd.) Unispin Ltd. and that he committed acts amounting to misconduct inasmuch as on 30th December 1975 he committed acts subversive to discipline, riotous and disorderly behaviour during working hours through damage of employer's goods, striking work and inciting others to strike, go‑slow and manhandling his superiors. He was duly charge sheeted. He submitted reply to the charge‑sheet. An independent enquiry was held. He was informed of the date of holding of enquiry. He applied for the change of Enquiry officer. His request was acceded to and another Enquiry Officer was appointed but he refused to appear before the said otter Enquiry Officer and ultimately the enquiry was conducted ex parse. As per findings of the Enquiry Officer the respondent had been found guilty of misconduct. His removal from service was warranted but a t industrial dispute was pending, hence, the present petition.

3. The respondent resisted the petition and pleaded inter alia that the application was male fide and was with a view to harass him and that it merited dismissal. He also claimed that he was not given an opportunity to participate in the enquiry and to produce his defence. He was being victimized for his Trade Union activities.

4. Sh. Muhammad Yonuas, Labour and Personnel Officer of the peti tioner Mills appeared as P. W.

1. He in his testimony has reiterated the allegations contained in the petition and has stated that on 31st December 1975, the respondent accompanied by 7 other persons forcibly entered into the mills premises at about 2 p. m. He, managed closure of Khatas. He and his companions manhandled Senior Spinning Master Rashid Jamal. He was charge‑sheeted for misconduct on 1st January 1976,‑vide charge sheet, photo copy whereof is Exh. P.

1. He filed reply Exh P. 2. to the charge‑‑sheet. After receiving his reply the Management served the enquiry notice, Exh. P. 3 on the respondent. In reply to the enquiry notice the respondent sent letter Exh P. 4. expressing no confidence in Enquiry Officer. On his objection the Management by letter Exh. I'. 5 changed the Enquiry Officer and informed the respondent accordingly. The respondent again swat letter Exh. P. 6 expressing no confidence in the changed Enquiry but the Management by letter Exh. P. 7 informed the respondent that the Enquiry Officer could not be changed and that the should appear before the Enquiry Officer on 15th January 1976. The Enquiry Officer conducted the enquiry and recorded the statements of three witnesses, which are Exhs. P. 8, P. 9 and P.

10. After this the Enquiry Officer submitted his report Exh P. 11 holding the respondent guilty of the charge.

5. In rebuttal Muzzaffar Ali respondent his appeared as R. W. I. and has stated that the Management bad always been persuading him to leave the Union and they had also been holding out threats of dismissal to him. He denied of having committed the acts of misconduct for which he wag charged. He has stated that he has been involved in the false case in order to victimize him for his Trade Union activities. He has also stated that he has not been afforded with an opportunity to cross‑examine the witness and to produce his defence. He has admitted that he submitted reply, Exh P. 2 to the charge sheet. He has admitted that at his request the Management changed Enquiry Officer. He has also admitted that he wag informed, vide Exh. P. 7 that the changed Enquiry Officer could not further be changed and that he should appear before him on 15th January 1975 at 10 a. m. He has admitted his signatures, Exh. P. 7/1 on Exh. P.

7. The respondent has admitted that he had made no written complaint to the Labour Department or to any other authority that he was being held out threats of victimization on account of his Trade Union activities.

6. I have carefully considered and analysed the oral as well as documen tary evidence produced by the parties. It is sufficiently established from such evidence that the respondent was duly charge‑sheeted by the Management of the employer for acts of misconduct. The respondent submitted reply to the charge‑sheet. The Management after receiving his reply to the charge‑sheet found the same as unsatisfactory and appointed Mr. S. M. Younas as Enquiry Officer and informed the respondent accordingly and required him to appear before the said Enquiry Officer on 10th January 1976 at 10 a. m. The respondent expressed no confidence in Mr. S. M. Younas and requested for the change of Enquiry Officer. His request was acceded to and in place of Mr. S. M. Younas. Mr. Abbas Khan was appointed as Enquiry Officer and the respondent was required to appear before the Enquiry Officer on 15th January 1976, at 10 a.m. The respondent again expressed no confidence in Abba Khan. The Management, however, informed the respondent that his request could not be acceded to for the second time and that he should appear before Abbas Khan. Enquiry Officer on 15th January 1976 at 10 a. m. The respondent did not appear before the Enquiry Officer on the date and tam fixed for the enquiry. Consequently the enquiry was held e: pane against him and Enquiry Officer as a result of the ex pane enquiry has found the respondent guilty of the charge. The allegations of the respondent that h was being victimized for Trade Union activities and that he was held out threats for being victimized appear to be baseless and vague allegations.

7. In Jubliee Spinning & Weaving Mills Ltd., Karachi v. Bladar Khan and 8 others (1975 P L C 24) it has been held by the Sind Labour Appellate Tribunal that where the accused workers failed to appear at the domestic enquiry despite notice and opportunity, ex parte proceedings could be held against him and such proceedings were not violative of principle of natural justice.

8. In the light of what has been said above it is concluded that the enquiry has been duly held against the respondent and he has been found guilty of the charge of misconduct. There is no element of malice involved in the case. We would accordingly accept the application and allow the peti tioner Management under section 47 of the Industrial Relations Ordinance, 1969 to punish the respondent, an office‑bearer of the respondent‑Union despite of the pendency of the industrial dispute.