1981 PLP 949 (PLC(CS))

(c) Industrial dispute‑ ‑‑ Re‑instatement due to improper enquiry‑Back benefits should be made dependent upon result of fresh enquiry. Dismissal order based upon findings of domestic enquiry held by an Enquiry Committee one of whose members had witnessed the alleged in cident and was also biased against the accused was set aside by the Labour Court with full back benefits. The Labour Appellate Tribunal on appeal held: The Labour Court, however, was in error in awarding back benefits to the respondent and not giving an option to the appellant Establishment to hold a fresh enquiry against the respondent. It is now well‑settled law that where the orders of termination are based on an invalid and improper enquiry, ordinarily the Management should be allowed to hold a fresh enquiry and the award of back benefits, if any, should be made dependent upon the result of such enquiry. Mehmood Shah v. Dawood Cotton Mills Ltd. Constitutional Petition No. D‑804 of 1979 (unreported) ref. Masood Shaharyar for Appellant. M.L. Shahani for Respondent. Date of hearing ; 4th February, 1981. The respondent, who was employed as a battery‑man in the appellant establishment at Sukkur, was dismissed from service with immediate effect, vide order of the Manager (Workshop) of the appellant establish ment, on the charges of gross misconduct in that he had assaulted and maltreated Mr. Ahmed Ali Shah, Head Clerk of the appellant establish ment. The dismissal orders were based on the domestic enquiry said to have been held by a Committee of three persons appointed by the appellant establishment. The respondent challenged the orders of his dismissal before the learned Labour Court No. VII at Sukkur which has set aside the order of dismissal and directed the appellant establishment to reinstate the respondent with full back benefits. The learned Labour Court has based its decision on the grounds, firstly, that one of the members of the Committee was Mr. Ali Muhammad Baloch, who admittedly was a witness to the alleged misbehaviour by the respondent against the Head Clerk, Ahmed Ali Shah, and consequently the enquiry by the Committee cannot be considered to be independent, secondly, that it appears that even otherwise the Enquiry Committee was biased against the respondent and thirdly that it was not established that the second show‑cause notice was served upon the respondent or personal hearing given to him as neither a copy of the second show‑cause notice or of the letter for the personal hearing had been produced before it. The appellant establishment has come up in appeal to this Tribunal against the said decision.

2. I have heard Mr. Masood Shaharyar, the learned counsel for the appellant establishment, and Mr. M.L. Shahani, who appeared for the respondent.

3. It is not disputed that one of the members of the Committee which held the domestic enquiry against the respondent was Mr. Ali Muhammad Baloch, the President of the Workers `Union' who is said to have witnessed the alleged misbehaviour of the respondent with Head Clerk Ahmed Ali Shah and which misbehaviour is said to have given rise to the assault on the Head Clerk. The law envisages that the employer must hold independent enquiries against the offending workman. Where the Enquiry Officer or a Member of the Enquiry Committee has personal, knowledge of the incident, obviously any enquiries by such Officer or Committee cannot be deemed to be independent enquiries, as their views are bound to be coloured by their personal knowledge of the incident. The appointment of Mr. Ali Muhammad Baloch on the Enquiry Com mittee was unwarranted even from another angle. The complaint of the respondent is that he and his uncle, Muhammad, had disputes with the officers of the Union of which Ali Muhammad Baloch was the President and that in fact they had lodged a report against them with the police. I am, therefore, inclined to agree with the further view of the learned Labour Court that the Enquiry Committee or at least one Member thereof was biased against the respondent. Further support to this finding is provided by the fact that apparently no proper opportunity of leading defence was given to the respondent. It may further be mentioned that the full record of the enquiry proceedings, particularly the report of the Enquiry Committee was not produced by the appellants before the learned Labour Court for reasons which can only be partly surmised. Finally, it may be pointed out that though the charges against the appel lant were misbehaving with and assaulting Head Clerk Ahmed Ali Shah, the dismissal order shows that action was taken against the respondent not only on the aforesaid charges but also on account of his past bad, conduct, which does not seem to form a part of the charges which were communicated to him, and hence he had no opportunity of rebutting the allegations of past misconduct.

4. I, accordingly, find myself in full agreement with the findings of the learned Labour Court that the domestic enquiry was not in accordance with law and that the dismissal orders in respect of the respon dent based on such enquiry cannot be sustained. The respondent, accordingly, must be re‑instated in service.

5. The learned Labour Court, however, was in error in awarding back benefits to the respondent and not giving an option to the appellant‑establishment to hold a fresh enquiry against the respondent. It is now well‑settled law that where the orders of termination are based on an invalid and improper enquiry, ordinarily the Manage ment should be allowed to hold a fresh enquiry and the award of back benefits, if any, should be made dependent upon the result of such enquiry. The latest view on this point by a Division Bench of the, Karachi High Court is expressed in the case of Mehmood Shah v. Dawood Cotton Mills Ltd. (Constitutional Petition No. D‑804), decided on 15th May, 1979. I would, accordingly, while upholding the decision of the learned Labour Court in setting aside the orders of dismissal of the respondent and directing his re‑instatement in service, would allow an option to the appellant establishment to hold a fresh enquiry against the respondent within three months of the date of this order. The award of back benefits to the respondent would depend upon the result of such enquiry, if any. If no enquiry is held and completed within three months from the date of this order the respondent will be allowed full back benefits from the date of his dismissal upto the date of his reinstate ment in service. The respondent is expected to promptly participate in the said enquiry.