1982 PLP 702 (PLC)

Asghar Mahmood for Respondent. This appeal arises from the decision dated 5th November, 1979 record ed by the learned Presiding Officer, Punjab Labour Court No. 9, Multan whereby the grievance petition of the appellant for his re‑instatement was dismissed.

2. He was charge‑sheeted for being involved in two incidents, the one took place on 12th August, 1976 within the factory and the other is alleged to have taken place on 13th August, 1976 outside the factory within the colony area near the Fair Price Shop. So fat as the first incident is con cerned the allegation against the appellant is that he absented himself for a short time and brought two strangers in the factory and with their help attacked and belaboured Faqir Hussain and Muhammad Aslam Khan. The staff of the stores near which the occurrence took place, saved the above‑mentioned two persons from the clutches of the appellant and his two outsider companions. The second incident is alleged to have taken place near the Fair Price Shop, where Faqir Hussain and Muhammad Aslam Khan and other witnesses are alleged to have gone for making, purchases at about 9.00 a.m. In the first incident‑ the appellant also received injuries and lodged an F.

1. R. with the police, but it appears that the police did not proceed in the matter. He brought on the file of the lower Court the copy of the F.

1. R. and the photostat copy of the medico -legal report. The appellant replied to the charge‑sheet and joined in the inquiry. However, he laid aspersions of partiality upon the Enquiry Board. From the very start the appellant had been complaining that since he had made application against the Management, he was got attacked and then involved in the enquiry. He is of the opinion that one Mr. Mahmood Chaudhry has done every thing. He had been giving applications against the Enquiry Board asserting his non‑confidence in them. His objection is that they were cot considered and after the enquiry had been finalised Mr. Mahmood Chaudhry rejected the said applications vide Exh. R‑I although they had been addressed to the General Manager. He also says that no information about the order was conveyed to him. It has also been argued that the enquiry report was considered by Mr. Mahmood Chaudhry and it was he who directed that second show‑cause notice be given. He had made reference to order Exh. R‑

12. This order shows that the' applications sent by the appellant against the Enquiry Board were disposed off by Mr. Mahmood A. Chaudhry, Manager Administration on 13th July, 1978. So this objec tion of the appellant appears to be correct that the applications were disposed of by Mr. Mahmood Chaudhry, although they were addressed to the General Manager. This objection of the appellant also appears to be correct that he was not informed about the fate of the applications. On Exh. R‑12 there are no signatures of the appellant, in token of the receipt of its copy, nor it appears that any intimation about the rejection of these applications was sent to him by post. Beside this the enquiry proceedings do not appear to be above board. It appears that on page 41 in the order dated 15th July, 1978 a line was added after the order had been completed and had been signed by the members of the Enquiry Board and the appellant. The added line pertains to the receipt by the Board of the copy of the order Exh. R‑

12. The number of this order is FL/Estt/PF/369. The same number is written in the added line. The added line is as under:‑ The aspersion of the appellant is that his applications against the Enquiry Board were decided after the completion of the enquiry. The insertion of the above‑quoted sentence in the order dated 15th July, 1978 lends support to the allegation made by the appellant. In order to show that the order Exh. R‑12 was passed on 13th July, 1978 this line was added by the Enquiry Board to the effect that the letter had been received on 15th July, 1978. The order dated 15th July, 19/8 ended with the words and, thereafter; the sentence was added writing. The other writings on this page and the order mentioned above are written leaving normal space, but the space between added sentence and the upper line is abnormally narrow. The last letter of one of the signatures is occurring between the words "PFL" and. If this sentence had been genuinely added at the time of recording the order before the order had been signed by the members of the Board and the appellant, there would have been no necessity of leaving narrow space in‑between the added line and the upper line. Even if it be said that the member of the Enquiry Board who had been recording the proceedings missed to record the receipt of letter in the order, this sentence could be written under the signatures and the members and the appellant asked to put their signatures under the added sentence. The addition of the above‑mentioned sentence coupled with the fact that it does not appear that the copy of the order Exh. R‑12 was served upon the appellant, raises a strong presumption that Exh. R‑12, as is stated by the appellant, was passed afterwards. This is not all. There are other additions also which appear to have been made afterwards. The last question appearing on page 11 of the enquiry file appears to have been added afterwards. The question reads as under:‑ Again the space between the added question and the sentence written above it is abnormally narrower than the space left between the other lines written on the page. The upper portions of the signatures of one of the members are touching the newly‑added line, which clearly shows that this line was added after the members of the Enquiry Board and the appellant had put their signatures. If this question had been written normally and had not been added afterwards, the signatures would have occurred much below and would not have touched the newly‑added line. Sufficient space was lying below the signatures, therefore, they could be very easily affixed below the space where they now occur. As there was no further space left to record the answer to this added question, the answer was recorded on the next page No.

12. The answer reads as under:‑ As there had been put no question about the motive that is why under some legal advice necessity appears to have been felt afterwards and in order to prove motive, in the bottom of ‑page 11 question was added after the page had been signed by the members of the Enquiry Board and the appellant. If the said question had been put in reality to the witness, the question as well as the answer both could have been very easily written on page I 1 and the members could have easily put their signatures without overwriting the question or the answer. Likewise there is another addition on page 17 of the enquiry file in the statement of another witness. The answer to question No. 28 ended with the words, appear to have been added after the appellant and the members of the Enquiry Board had put their Signatures. If the above mentioned words had been written normally whit‑ recording the answer to the question, the line would have occurred at the place where I have drawn line with red pencil. But if it had been written there it would have overridden the upper portion of the signatures of the members. To avoid this the added words were pushed a bit upward. This is note worthy that the matter added in this added line is the same, which was added in answer to the question which was afterwards added at page 11 in the statement of Muhammad Aslam. This addition on page 17 was also made to show the motive for the appellant to attack the members of the Union. The other conduct of the Enquiry Board which shows parti ality and which prejudiced the appellant, is that on the objection of the complainant the representative of the appellant was asked to put questions only sparingly in cross‑examination and asked the appellant to cross -examine the witnesses himself. The objection of the complainant was that little questions were being asked by the appellant and his representa tive was extensively (sic) cross‑examining the witnesses. A representative is always appointed to help the person under enquiry and he cannot be debarred from putting the questions in cross‑examination, if they are not irrelevant. It is obvious that the representative was stopped from putting questions so that the prosecution case may not be damaged. It did not befit the members of the Enquiry Board and shows that they were prejudiced against the appellant. The learned counsel for the respondent has said that firstly, there is no addition and' secondly, the additions pointed out by the learned counsel for the appellant should not be taken notice of, since no such objection was taker, about them in the grievance notice, the petition and before the lower Court. He also says that no such suggestion was made to the Enquiry Officer in. cross‑examination. Raising of such particular objection in the grievance notice and the grievance petition was not necessary, since the conduct of the Enquiry Board had been challenged therein also. Moreover, the appellant, not being a legal minded person and highly educated could not detect the additions and interpolations at the time of giving the grievance notice. So far as the member of the Enquiry Board is concerned, such a question was put to him in cross‑examination and he replied that he had trot made any interpolations or tampering. Actually what he stated is as under:‑ His denial is immaterial, because the additions arc apparently manifest on the record. The learned counsel for the respondent in this respect has argued that it is necessary to show that the accused was prejudiced. I cannot agree with him. In cases where the enquiry officer has been found to have afterwards made additions, and interpolations in the absence of the accused, necessary result is that the accused has been prejudiced because he loses confidence in such Enquiry Officer and proceedings. The very act of making interpolations afterwards in the absence of the accused reflects upon the conduct of the Enquiry Officer and not only the accused but the authorities, who have to act upon such a report of the Enquiry Officer lose confidence and the proceedings will be looked upon with great doubt. In support of his argument that a plea regarding tae additions should have been taken earlier learned counsel for the respondent has cited certain authorities brat they are not helpful. In. 1980 P L C 175 it was observed:‑‑ "I find no force in this contention for the simple reason that no such plea (as to seniority) was taken either in the grievance notices or in the applications which were made under section 25‑A of the Industrial Relations Ordinance, 1969. Consequently such a pica cannot be allowed to be raised for the first time at the time of arguments in these appeals." As a matter of fact the pleas, which were taken in the cases from which the authority arose were about seniority, which always is a question of fact that cannot be allowed to be raised for the first time during the arguments before the Appellate Tribunal. 1980 P L C 916 has even no remote bearing on the present case. The observations made in 1979 P L C 176 are:‑ "It seems clear that the learned Presiding Officer clearly disregarded the settled principle of law that the trial of the case and the evidence has to be confined to the pleadings of the parties and no new case is allowed to be set up in evidence nor the fresh plea can be given in addition. It is also pertinent to note that at no stage prior to the filing of the second affidavit, Usman raised any objection to the enquiry or the procedure adopted by the Enquiry Officer." The objections about the enquiry in the case from which the authority arose were that none of the witnesses was examined on oath and that no opportunity was given to Usman to cross‑examine the witnesses, and that the statements of the witnesses were recorded in the form of questions and answers. There was another objection, which was that Usman, accused in that case was examined on 24th October, 1974 whereas Muhammad Shamim was examined on 31st October, 1974 showing that the accused had been cross‑examined first. It is evident that no such objection has been raised in the present `enquiry. I cannot say anything about the observations made by the learned Presiding Officer of the Sind Labour Appellate Tribunal in the said Authority, but since the question involved in the present case is quite different and that is about the addi tions of some material in the evidence of the witnesses afterwards in the absence of the accused, suffice it to say that the authority relied upon is not helpful. The last ruling cited by the learned counsel in this behalf is 1978 P L C

429. The observations made are:‑‑ "It is a settled principle of law, needing no authority, that a plea in fact which has not been set up or disclosed in the; pleadings cannot be looked into nor any evidence can be led to introduce a fresh ground of fact." No new material or evidence has been brought in the present case, but the illegal additions made in the proceedings have been pointed out, which go to the root of the case. The learned counsel for the appellant has pointed out certain other additions also, but since they are not material, I have not taken notice of them. At one place there is a genuine addition. On page 13 of the enquiry some additions were made in the answer to question No. 14, but since it was made in the presence of the appellant, he signed it on the margin. This shows that the Enquiry Board was conscious of the fact that if something is left from writing and is added afterwards in the presence of the accused, there is no harm and the accused can be asked to sign the addition. Since the additions pointed out above, were made afterwards and not in the presence of the appellate, therefore, his signatures do not exist. The learned counsel further says that it is necessary that there should be likelihood of bias, which should be established. Why an Enquiry Officer would, if he is not biased against the accused, make interpolation, in the proceedings The very act of making interpolations is sufficient to show that the Enquiry Officer is biased and wishes to bring material on the record to return the verdict of guilty. The learned counsel for the appellant had said that the Board did not cross‑examine the prose cution witnesses, but cross‑examined the defence witnesses and this act of the Board shows partiality. However, here I would not agree with him Cross, questions are put to test the veracity of the witness to satisfy that what has been stated by him is correct. So the Board had put some questions to the defence witnesses, it cannot be said that it was due to their partiality. Two persons were examined as Court witnesses, but their evidence was not considered by the Enquiry Board. These witnesses were examined in respect of the second incident. G Both of them were natural witnesses. They deposed against the modus operandi of both the parties. This is common ground between the parties that on 15th an incident took place near the Fair Price Shop. The case of the prosecution is that the appellant had attacked Mr. Muhammad Aslam Khan and Faqir Hussain, but he case of the appellant is that hey was beaten by them. Since the said witness had come in the witness box, the appellant should have been allowed to cross‑examine them. If he bad been allowed, he might have brought some material in his favour. It has been argued by the learned counsel for the appellant that the witnesses examined against the appellant about the incidents are interested witnesses since they belong to the rival union. During arguments it was said on the respondents side that the appellant had got the payment of subscription by the members of the rival union stopped. However, there is nothing on the record to show that the appellant got the payment of subscription stopped. The appellant admitted this suggestion. Anyhow, if this is so, the motive was rather for the office holders of the rival union to feel aggrieved against the appellant and thus to get him beaten. Muhammad Iqbal Shah examined in defence appears to be an independent witness, as it was not suggested to him that he belonged to the appellant's party. According to him, it was the appellant who was beaten. The matter, therefore, is not free from doubt. Apart from what the appellant has said against some members of the management, the management his not been neutral. If the management had good reasons for holding the view that the appellant was the aggressor, it could be justified to proceeding against the appel lant so far as the incident which took place within the factory is concerned. But by taking action for the incident, which took place out side the factory, it has given an impression that it did not remain netrual. The incident was not so serious as to be taken notice, of, even if it be said that the appellant was on the wrong.

4. As a result of the discussion made above, I am of the opinion that the enquiry made against the appellant does not appear to be fair and satisfactory, the Labour Court, therefore, should have accepted the grievance petition. I, accordingly, accept the appeal and setting aside the impugned decision of the lower Court, accept the grievance petition and direct the reinstatement of the appellant in service. As no definite opinion can be expressed as to which, party was the aggressor and as only on the unsatisfactory conduct of the Enquiry Board the appellant has succeeded, he is not entitled to back benefits. Appeal allowed.