1992 PLP 1270 (PLC(CS))

DECISION These appeals emanating from the order of the Labour Court No. 5, Karachi, which I propose to dispose of by a common decision arise in the following circumstances.

2. Muhammad Hanif Siddiqui the appellant in Appeal No. KAR-100 of 1992 was working as a Telex Operator with tile respondent-Corporation, since quite some time. It is stated that the Corporation started nursing soave grudge against him, because he was evincing interest in the activities of the Union. Flimsy charges were raised against him and ire is stated to have been given a show-cause notice on 17-5-1989 which was replied to. As the reply was found to be unsatisfactory a domestic enquiry was ordered.

3. Some sort of an enquiry is alleged to have been held by Muhammad Amin, the Accountant of the Company, but the report and the statements of the witnesses had not been produced before the Labour Court. In this very context it might be added that these have now been attached with the memorandum of the Corporation's appeal. It is a tardy realisation and the damage cannot be repaired. After the submission of the said report his services were terminated on the 18th of June, 1989.

4. The appellant is stated to have declined to receive the letter of the termination and even the one sent by post was returned undelivered. However a notice dated 1-7-1989 was published in the Daily Jang. The version of the said appellant is that he came to know about his dismissal through this only.

5. The appellant had sent the grievance notice which was replied to and later presented the Application under section 25-A, IRO in the Labour Court No. 5 at Karachi.

6. It was alleged that the petitioner had been dismissed because of his involvement in the trade union activities which was bitterly resented by the management. It was also said that the Enquiry Officer appointed was inimical to him, and had not been replaced in spite of his repeated protests. The alleged enquiry was unfair and the Enquiry Officer did not provide him the opportunity to defend himself. He was also neither given the copy of the report nor a final show-cause notice or hearing by the Management.

7. The respondents in their Reply Statement resisted the Application on the ground that the Corporation was registered under the West Pakistan Shops and Establishments Ordinance, 1969 and since the number of employees in the Corporation happened to be only 12 the provisions of the Standing Orders Ordinance, 1968 would not be applicable. It was also alleged that apart from being an unwilling worker the petitioner had made a nuisance of himself and was bringing bad name to the Corporation.

8. The appellant Muhammad Hanif Siddiqui was his own witness and Mr. Kaoru Tange, an executive in the Corporation was the witness on behalf of the respondents.

9. The Labour Court repelled the contention of the respondent in regard to the non-applicability of the Standing Orders Ordinance and also found that there was no regular enquiry conducted, which otherwise too, was tainted with blemishes. It went on to say that it was also not known whether the alleged go? slow ascribed to the petitioner was intentional, or due to some mechanical or technical defect or breakdown of the machinery. It therefore set aside the termination order of the petitioner and ordered the respondent to reinstate him in service. However the Labour Court directed the respondent to "hold fresh enquiry against him in accordance with law within a period of 2 months from the date of this order. The applicant's claim regarding back benefits under the circumstances will be subject to the results of this abovesaid enquiry."

10. The petitioner has come in appeal against the observation referred to above made by the Court and the Corporation has called in question the impugned order as according to them the petition itself should have been dismissed.

11. The petitioner had submitted a list of 15 workmen alongwith his affidavit-in-evidence, with their names and designations. The suggestion to him was that there were 17 employees only which came to be denied. According to Mr. Kaoru Tange there were only 11 workmen out of a total of 17 employees. However in his cross-examination he was confronted with a letter of one Mr. Hamada, which showed that the number of employees was

20. All that he had the to say in reply was that without checking the record, he could not give a categorical reply regarding the number of the employees, Even the certificate of its registration under the West Pakistan Shops and Establishments Rules, 1696 shows that there were 20 employees in its establishment.? As the matter stands the Labour Court had properly overruled the contention of the Corporation that the Standing Orders Ordinance did not apply in their case. 12.? As for the merits as the charge-sheet had not been placed on the record we do not know on what count the appellant was proceeded against. 13.? The other salient feature of the case is that Muhammad Amin who was appointed as the Enquiry Officer was not at all well-disposed to the appellant Muhammad Hanif.? This Enquiry Officer was also the General Secretary of the Union.? Some unsavoury suggestions had been made against him but it is not necessary to animadvert to the same.? However, there is a letter dated 12th march, 1980 in which he had complained to the president of the Union that the behaviour of Muhammad Hanif Siddiqui toward him in the evening was intolerable. He had openly insulted him and the request conveyed in the letter was that disciplinary action should be taken against him immediately. We do not know what happened in that context, but the record shows that there were objections raised against his appointment but no heed was paid to the same. There was no question of a fair enquiry, as such.

14. The fact also remains that neither the copy of the report was given to the appellant Muhammad Hanif, nor produced before the Labour Court. What was worse, even Muhammad Amin was not produced before the Court. The dismissal under the circumstances could not simply be maintained. It is not a termination as politely mentioned in the letter, dated 18th June, 1989 but out?right dismissal and in the absence of a proper and fair enquiry the order of dismissal cannot be sustained.

15. In the light of my observation the appeal of the Corporation as filed stands dismissed.

16. The learned Presiding Officer had directed the petitioner's reinstatement but ordered a fresh enquiry which was to be concluded within a period of 2 months. The question of back benefits as per order was to be subject to the findings thereof I do not think this part of the order can be maintained. Muhammad Hanif had clearly mentioned in his petition that he was jobless and in the circumstances he will be entitled to receive full back benefits as held in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal and others 1991 SCMR 2087. I will also modify the order of the learned Labour Court wherein it has been said that there shall fresh enquiry conducted against the appellant Muhammad Hanif period of 2 months. This part of the order looking to the circumstances was hardly warranted. The Appeal No.KAR-100 of 1992 filed by Siddiqui is allowed. However it will be open to the Corporation to hold a fresh enquiry against the appellant if they so desire. H.B.T./2067/Lb.S ????????????????????????????????????????????????????????????????????????????? Order accordingly.