1986 PLP 870 (PLC)

1. The charge‑sheet on the basis of which Mr. Mehmood Ahmed Qureshi, Mr. Akbar Khan, Mr. Abdul Aziz have been held guilty, relates to the incident which reads as under:‑‑ After the alleged incident of scoring out he remarks of Deputy Manager (Quality Control) on the application, dated 17‑1‑1983 of Shahzada Card No. 743 for duplicate medical card by Mr. Abdul Majeed, you met the Senior Manager (Admn.) who immediately ordered issuance of charge‑sheet to Mr. Abdul Majeed which was accordingly issued. In spite of this you went in the Labour and Personnel Office and abused Mr. Abdul Majeed. Again on the same day at about 3.50 p.m. near Rolling Mills Main Gate inside the factory premises you alongwith Messrs Abdul Qayum, Aziz Khan, Rajwali, Akbar Khan and Shamsul Wahab attacked Abdul Majeed and Muhammad Ayaz, beat them, inflicted injuries and tried to pull out Shalwar of Abdul Majeed which got torned and he became semi‑naked."

2. The same charge‑sheet was repeated against Mr. Abdul Aziz and Akbar Khan that all have committed serious misconduct under Standing Order 15(3) which is called disorderly behaviour during working hours of establishment and their act was subversive of discipline.

3. During the evidence before this Labour Court, the respondent has also produced the detailed enquiry report which is Annexure‑A/50. It was the face sheet in the manner the enquiry was conducted by an Enquiry Officer Mr. I.A. Siddiqui. The conclusion was that Mr. Mehmood Qureshi, Abdul Qayum, Akbar Khan, Abdul Aziz, Raj Wali, and Shamsul Wahab are all guilty of the charges in their respective charge‑sheet, except Abdul Majeed and Muhammad Ayaz who were shown as honourably acquitted. 4 The enquiry report further reveals that previously Mr. M. A. Siddiqui was appointed as the Enquiry Officer but was changed. Thereafter Mr. I. A. Siddiqui was appointed as Enquiry Officer to conduct the proceedings. The enquiry report further shows that it was a joint enquiry in respect of all charge‑sheets regarding incident. Mr. Qayum did not remain present.

5. Another feature of the enquiry is that Abdul Qayum who was the Deputy Manager was also involved as an accused was absent throughout the proceedings and the enquiry proceeded in his absence. Procedure has further shown that Mr. Aslam Choudhry opened the case and gave the statement and also cited the witnesses who were cross‑examined# From the defence side all the accused gave the statement. Mr. Shahzada who was the complainant in the charge‑sheet against Mr. Abdul Majeed got his statement recorded, cross‑examined by Abdul Majeed. So also Majeed gave statement in respect of the charge‑sheet against Mehmood Qureshi, Akbar Khan, Abdul Qayum, Abdul Aziz Khan, Shamsul Wahab and Raj Wall.

6. Mr Abdul Majeed was cross‑examined Mr. Mehmood Ahmed Qureshi, Mr. Shahzada, and the prosecutor Mr. Aslam Choudhry. Documentary evidence was also produced.

7. The Enquiry Officer further also shows that Mr. Abdul Majeed also gave the names of witnesses Mr. Abdul Ghafoor, Mr. Rasheed, Khawaja Muhammad. Noor Zaman, Azizur Rehman and Yahya Khan.

8. Mr. Mehmood Qureshi has also given the reply to the charge‑sheet which I also reproduce what is defence of Mr. Mehmood Qureshi in respect of the charge‑sheet which was served on him, it is important. According to Mr. Mehmood Qureshi's version addressed to the Deputy Manager, he has explained that:‑‑ "One worker by name Mr. Shahzada came to get his medical card prepared. Majeed scored of the remarks of Deputy Manager Quality Control which was protested. While on his way to the office of the Senior Manager, Mr. Aslam Choudhry, Mr. Majeed who was sitting on seat abused him and gave him the ultimatum that he will see him. Mr. Aslam Choudhry intervened to avoid the incident. Mr. Majeed was abusing and asking the peon Mr. Abdul Ghafoor to call people to deal with Mr. Mehmood Qureshi. In the meanwhile Behram Khan, Rasheed Khan, Khan Abbas and other workers also assembled there with intention to fight. Mr. Aslam Choudhry and Security Officer also witnessed this incident. Thereafter he left, when he was off from the duty and went outside the gate, Mr. Majeed and Ayaz shouted and abused. They also further said that they will deal with him. During this incident other people also came and joined Mr. Abdul Majeed, namely Rasheed, of Moulding Shop, Khan Abbas of Moulding Shop, Noor Zaman of wire Drawing and Abdul Ghafoor office peon. This incident was avoided due to intervention of good people around. Mr. Shamsi meanwhile also came and intervened to avoid the incident but the excitement remained and there was attempt to assault through fist beating. While this incident was going, on Mr. Qayum Deputy Manager Quality Control also Came. When he saw that his brother Muhammad Ayaz is exciting people to fight, he also told workers not to beat Mr. Ayaz. Ayaz was also putting up resistance against assault. When Mr. Qayum found that Ayaz is not listening to him, he went away." Mr. Mehmood Ahmed Qureshi also further explains in his reply that his position was simply, that of spectator. He has denied all the charge which was made against him regarding assaulting Mr. Majeed and Ayaz. It follows that according to Mr. Qureshi, these were persons who were witnesses of the incident, and should have been examined as the defence witnesses to find out truth whether the incident which took place in respect of the assault of Mr. Majeed, whether the injuries were caused by' the workers who had unlawfully assembled from both the groups. Whether Mr. Mehmood Ahmed Qureshi and Akbar Khan and Abdul Aziz also physically took part in the assault rather than to stand and to see the incident as Mr. Mehmood Ahmed Qureshi has said that he had committed no breach of discipline within the industry. The trend of his reply shows that his case is that this excitement was due to the fact that one worker Mr. Shahzada had applied for the card. He had protested about the scoring of remarks of the Deputy .Manager Quality Control. This led to the incident Mr. Majeed himself was responsible to incite the workers of the union which resulted in this mishap.

9. The precise question before this Court is, whether the enquiry conducted, by the Enquiry Officer was proper enquiry in accordance with the rules applicable under the Standing Orders 15. (ii) Whether the Enquiry officer based his finding .on the evidence. (iii) Whether the applicant Mehmood Qureshi was victimized by the management due to his position in the union which he was formerly holding from time to time to advance trade union activities which were not approved by the management.

10. Mr. Ali Amjad counsel for the applicant apart from making comments on the finding of the joint enquiry to show that the proceedings were not conducted properly, has referred to one important aspect that the criminal case which was pending in 'respect of the said incident against Mr. Mehmood Qureshi, no case was established. In this connection he has referred also to the judgment of his Lordship of Supreme Court to show that if the allegation of the commission of offence by‑ workmen formed the subject‑matter of trial before Magistrate which ended in the discharge of the accused by the Court, it is not for the company to take up the matter again and hold the worker guilty of criminal offence. Reliance is placed on 1962 P L C 302.

11. The Court has also referred the decision of the Additional City Magistrate where also the learned Magistrate came to the conclusion that the evidence of the interesting witnesses had shown lot of exaggeration, improbabilities and contradictions.

12. The learned Magistrate also on page 3 of his decision has said that complainant Abdul Majeed in respect of the incident of 17‑1‑1983 at 4‑50 p.m. had resiled from previous statement and also made the improvement in case showing that he was beaten by Lathi blow by Mr. Qayum when there is no allegation in the first report. He has also further commented on the evidence of the witnesses to show that they have also made improvement that there was bleeding from the nose of the injured which fact is not supported from the first report. They have also made further improvement regarding Shalwar of the complainant, being taken of by the accused Mr. Mehmood Ahmed Qureshi and, its group.

13. In other words the case was sot proved before the criminal Court.

14. If it is contention of respondent's Advocate that there is no bar for the employer to proceed against accused under provisions of Standing Orders where the allegation is that the applicants were responsible for the loss of discipline, the management was within its' jurisdiction to proceed against them. If the contention of the respondent being correct that the criminal case finding was only in respect of the incident between Mr. Abdul Majeed and Mr. Mehmood Ahmed Qureshi whether they were still accountable to the management for the loss of discipline in the mill area? .

15. Mr. Ali Amjad has referred to certain extracts of the evidence recorded in this Court, of the respondent witnesses namely, the Enquiry Officer and the Administration officials and contended, that the accused were prejudiced because no chance was given to them to defend themselves, due to non‑production of the security report. The Court has examined the evidence of Mr. Iqbaluddin, Mehmood Ahmed Qureshi and Mr. Muhammad Aslam Chowdhry, Deputy Manager Administration. Firstly Mr. Mehmood Qureshi has contended that his dismissal was due to victimization because he was the active member of the union. Throughout the record the Court has examined this aspect minutely. The Court is not inclined to take this view that it was the management, who has victimized applicants. The record shows that there was group system in the union itself which was fighting for the capture of the official position within the union to create unrest. With all the back ground of the union and the groups rivalry, there is no evidence to indicate that the management has victimized Mr. Mehmood Qureshi or any other office‑barer nothing more than to take legal action under the provisions of Standing Orders in respect of the past dismissal or if they have proceeded to dismiss the present applicants, they have acted within their jurisdiction. There is, therefore, no evidence of victimization.

16. The second question is whether Mr. Mehmood Qureshi, Akbar Khan, Abdul Aziz took part physically in the assault of Mr. Abdul Majeed and Mr. Ayaz of which they were accused of misconduct.

17. In the first place the Enquiry Officer had taken the hasty decision by giving the finding when the management was fully aware, that criminal case was pending also in the Court in respect of injuries caused to Mr. Abdul Majeed and Mr. Ayaz other group members. The criminal Court's decision has shown that Mr. Abdul Majeed who had filed first report had completely resiled from his previous stand in the criminal Court, instead of supporting his first report. Criminal Court also has observed that the entire evidence was full of contradiction, improvements, and highly improbable to support the evidence of conviction. The learned Magistrate has also further observed that the witnesses have made such improvements where they have shown that the injury was caused by Lathi blow, which fact was also silent to the first report. The evidence, therefore, has been strongly criticised in respect of the incident. The Labour Court, therefore, is of the view that the criminal Court decision in respect of the entire incident has also re‑acted on the entire finding of the Enquiry Officer as to the conclusion to be drawn regarding the assault by the present applicants on the same set up evidence which was recorded in the criminal Court.

18. The third question which is important in this case will be that if the criminal Court has shown that case was not established or proved against these present accused how the charge‑sheet has held them guilty in respect of the incident which was also the basis of the charge -sheet in the domestic enquiry where also Mr. Chaudhry Aslam, Nihal Khan, Mr. Yakoob, Bahadur Ali and others were examined.

19. This is to mention here that if the evidence of Mr. Choudhry Aslam is examined it shows that he was not the eye‑witness but what information he has received from Mr. Nihal Khan on telephone, he stated before the Enquiry Officer. It will be seen that on telephone when Mr. Nihal Khan informed Mr. Ch. Aslam regarding the incident of the gate in respect of the rioting and violence no name was disclosed promptly of Mr. Mehmood Qureshi, Akbar Khan and Abdul Aziz that they were physically present to assault Mr. Abdul Majeed and Mr. Ayaz. Mr. Nihal Khan, s also not an eye‑witness of the incident, if his evidence is seen, he as not said anything on the telephone about the names of these persons. If the evidence of Mr. Yakoob Clerk is examined, who telephoned Mr. Nihal about the disturbance he has not also said anything about the names of present applicants. If the evidence of Mr. Sattar Khan is seen, he has said nothing about Mehmood Qureshi and Abdul Aziz that they took part in the assault. If the evidence of Behram Khan is seen, he has said nothing about that who took part

20. All that the evidence reveals that the disturbance has taken place and some people are beating Mr. Abdul Majeed.

21. The important evidence is of Mr. Captain Bahadur Ali, who is the Security Officer and has also showed himself to be the eye‑witness in respect of both the incidents, to show that Mr. Abdul Majeed and Mr. Mehmood Qureshi had exchanged the harsh words in office when Shahzada a worker had applied for duplicate card and regarding second incident near gate, where he has described his version in this manner: Captain Bahadur Ali has referred to his presence showing that "after he left the office, with the permission of Mr. Nihal Saheb, he found crowd of people gathered ah the gate and it was the time of arrival of the workers of two shifts meanwhile Akbar Khan General Secretary also came. When he asked him about the crowd, Akbar Khan told him that his President will address the workers. By that time Mr. Abdul Majeed and Ayaz also came. Aziz also came. Aziz came and caught hold of Abdul Majeed. Mr. Ayaz interfered. He also shouted to Security Guards to separate them. Jamadar Nek Muhammad, Ghulam Rasool, Badshah Gul, Fazalur, Rehman, Abdul Khaliq, Ghulam Hussain and Mir Hussain also intervened. By that time there was a fight on the large scale. He was not in a position to know who assaulted whom. Thereafter he went off and informed Mr. Nehal and Muhammad Yakoob. Police also came and conducted its proceedings".

22. The Court has examined also the evidence of Nek Muhammad. He has not named any one except to describe briefly about the assault and their intervention.

23. Captain Bahadur Ali has also said that he avoided the incident with the help of Security Guards, though Security Guards have also not said anything in their evidence except to show that there was a rioting and violence. They have, avoided to take the names of a person who took actual part. The evidence of Captain Bahadur Ali if is examined in the enquiry proceedings, his evidence also looses the importance, when the criminal Court has disbelieved the evidence, on the basis of the same first report where same injured has resiled from the statement what Mr. Bahadur Ali otherwise attributed to the names of the applicants.

24. The Court has also examined another important aspect in the enquiry that the management has not examined the witnesses which Mr. Mehmood Qureshi had disclosed in his reply of the charge‑sheet. If according to Mr. Mehmood Qureshi; these witnesses were present to throw light on the enquiry proceedings, neither, the accused nor the management had examined those witnesses to have the idea of the incident, how it started and how it ended. According to Mr. Mehmood Qureshi Mr. Shamsi was the important witness and also the eye‑witness to the incident. But the enquiry proceeding shows that the accused Mehmood Ahmed Qureshi has also examined those defence witnesses whose names are not mentioned in reply of the charge‑sheet, nor the prosecution has made any attempt to examine those persons where the Enquiry Officer would have been assisted to have the idea of the incident and the persons who took part by examining Mr. Shamsi who is prominently figured in the reply of the charge‑sheet, as the direct witness of the incident. If these witnesses would have been examined the Enquiry Officer would have got the assistance in reaching the proper conclusion who first abused Mr. Abdul Majeed at the time of preparing medical card on the protest fin the office or Mehmood Qureshi took initiative first abusing him. And then, Mr. Shamsi would have shown as the direct witness to both the incidents, who was responsible for the incident and assault, near the gate and who took part?

25. The Court also has examined the statement of Mr. Aslam Choudhry and also the statement of Mr. Bahadur Ali in the enquiry. Both these statements show that it was Mr. Abdul Majeed who abused Mr. Mehmood Ahmad Qureshi, when Mr. Mehmood Ahmad Qureshi came to protest about the preparation of the duplicate card of Shahzad worker and regarding scoring of remarks of Deputy Manager Abdul Qayum and not Mr. Qureshi abused him.

26. Besides the Enquiry Officer has not produced the Security report of the Guard to give the chance to the defence to confront the prosecution witnesses regarding omission contradiction, and the improvement in the case. The Enquiry Officer Mr. Iqbaluddin Siddiqui himself has admitted that security report was not exhibited in the enquiry proceedings. He himself has not been sure as to how he had conducted the proceedings when he says in the evidence before this court that he cannot remember.

27. In the result the Court is of the view that despite the fact that the incident took place of the assault and violence on Abdul Majeed and Mr. Ayaz, Mr. Majeed himself could not establish the case in the criminal Court. The only enquiry now can be commented on these points is whether Mr Mehmood Ahmad Qureshi, Akbar Khan and Abdul Aziz were responsible for disorderly behaviour within the area by creating a situation which led to the incident and committed misconduct within the provisions of Standing Order of which ‑the employer had the right to question their conduct in respect of the situation which disturbed the peace of the area without referring to the assault and violence which issue sad already been decided gay the criminal Court, the Enquiry can only be conducted on this poin

11. Whether Mr. Mehmood Ahmed Qureshi abused Mr. Majeed or Mr, Abdul Majeed abused Mr. Mehmood Ahmed Qureshi which led to the incident between two groups, and who is responsible for creating such unrest in the industry. On this point Mr. Shamsi is the important witness to be examined to disclose the names of the persons regarding the incident at both the places without fixing the criminal responsibility, which issue is already adjudicated between Mr. Abdul Majeed and Mr. Mehmood Ahmed Qureshi in respect of the assault on. Abdul Majeed and Mr. Ayaz near the gate.

28. The Court is attaching the importance o the statement of Mr. Shamsi to know the correct facts being independent witness when the evidence recorded in the enquiry was also examined before the Criminal Court but Mr. Shamsi was not the witness. If witnesses have concealed the fact, the enquiry is remanded only on this point to examine Mr. Shamsi to the limited reference whether Mr. Abdul Majeed and Mehmood groups were responsible for creating such abnormal situation, but which the management was embarrassed and there was disorderly behaviour disturbing the peace of the industry. The Enquiry Officer will give the finding whether Mr. Abdul Majeed and Mehmood Qureshi h ad initially the quarrel and abused, who abused first and immediately thereafter whether Mr. Shamsi found that these two groups were present in the unlawful assembly of the workers to have given rise to such violence within the mill area.

29. Unfortunately the litigation has taken so much time of which both parties have suffered. But if the requirements of justice are not met, both parties will try to come to truth to end litigation.

30. In the result, the impugned order, is set aside to this extent that the applicants will face the proceedings and limit the proceedings to the point in issue by examining Mr. Shamsi to give the complete idea of the incident, who initiated this unrest.

31. Looking to the contested litigation, both parties will observe complete restraint to enable the Enquiry Officer to complete the evidence and give the finding without any loss of time.

32. Then whatever order is passed after the finding, if the applicants are aggrieved, they can come to the Court, to examine the propriety of the finding.

33. This also be made as clear that after Mr. Shamsi's evidence is recorded, if any of the defence witnesses, cited in the reply of Mr. Mehmood is examined, he will be given chance and so also n Akbar and Aziz to examine defence witness who has been cited in reply of the charge‑sheet if any. The back benefits will depend after the finding of the Enquiry Officer and the Court's decision. So for the reinstatement of Akbar, Mehmood Qureshi and Aziz is concerned it is management's discretion to allow them to proceed on leave till the completion of enquiry. They shall be deemed to be in employment till the result of the enquiry. A. E. Case remanded.