P L D 1967 Lahore 1286 (PLP)

K. E. CHAUHAN, J‑In Industrial Dispute No. 50 of 1965, the Industrial Court, West Pakistan, by its award, dated the 3rd of March 1966, published in the Gazette of West Pakistan (Extraordinary Issue), dated the 29th of March 1966, pages 655‑657 directed that (1) Khushi Muhammad, who had been dismissed by the appellant from its employment, be reinstated with full benefits from the date of his dismissal and (2) that Abdul Sattar and (3) Muhammad Siddiq should be re‑instated from the dates of their termination of services with full benefits of past service and for the period for which they had remained out of service they should be considered to be on leave without pay. This award was given against the Chairman, Water and Power Development Authority, who has come up in appeal under section 12 of the Industrial Disputes Ordinance, 1959 as amended by Ordinance LXXIX of 1962. Since the award deals with the cases of three persons mentioned above, it is appropriate to discuss the case of each of them separately.

2. The facts of the case of Khushi Muhammad (hereinafter called the worker) are that he was employed as helper‑hammer man in Electrical and Mechanical Workshop of WAPDA and carried Ticket No.

137. On the 16th of June 1965, the Industrial Court tried Mr. Enayat Elahi, Works Manager of WAPDA for disobedience of its order/award, dated the 23rd of August 1962, published in the Gazette of West Pakistan on the 4th of September 1962, and finding him guilty punished him with a fine of Rs.100.00. The Works Manager has filed Criminal No. Apply 532 of 1965 which is pending in this Court. Five or six days after the decision of the Industrial Court, Mr. Enayat Elahi, the Works Manager, issued a charge‑sheet (with statement of allegations) Exh. P. W. 1/1 to Khushi Muhammad. These charges read as follows: "(1) That on 21‑6‑65 in the afternoon you were found sleeping by Fazal Muhammad, Foreman; (2) that you are habitually absent without leave on following days 1‑1‑65, 2‑1‑65, 11‑1‑65, 13‑1‑65, 30‑1‑65, 5‑2‑65, 6‑2‑65, 9‑2‑65, 15‑2‑65, 16‑2‑65, 17‑2‑65 and 22‑2‑1965; (3) that on 16‑3‑65 you obstructed Abdul Ghani, Hammer man, from performing his duties; and (4) that you were warned firstly on (sic) and secondly on (sic) to improve your behavior but you have failed to do so." Complete record of the case was not produced in Court but it appears that in connexion with the above charges, an inquiry committee, consisting of (1) S. M. Farooq, Junior Accountant and (2) Sakhawat Ali, Assistant Foreman, was appointed, which was to be assisted from the side of the prosecution by Mr. Azhar Hussain, Labour Officer, WAPDA. The worker, Khushi Muhammad, was allowed to have an helper, Muhammad Shafi, P. W.

4. On the 6th of July, 1965, vide his application, Exh. P. W. 1 /4, the worker submitted that if two persons were to deal with this case (from the side of the office) he also should be allowed two persons to defend or help him. In this application he further submitted that the appointment of Mr. Azhar Hussain as a prosecutor was not acceptable to him; because the said officer had a constant grudge against him on account of his frequent appearances for the Department in various labour cases. On the same date vide Exh. P. W. 1/5 he complained about the enquiry officers also. There is nothing on the record to show as to what happened to these applications and as to what orders were passed on them and by whom, though oral evidence has teen led to the effect that this request of the worker was rejected on the 19th of July 1965, the worker put in another application submitting that he had already filed an application to the effect that an inquiry committee, which was to work under the supervision and with the association of Mr. Azhar Hussain, Labour Officer, was not acceptable to him because the said officer filed cases against the labourers and was temperamentally against them and justice could not be expected from him. This application is Exh. P. W. 1/3 and another duplicate of the same is Exh. R/2. On Exh. R/2, there is an endorsement of somebody to the effect that it was being forwarded to the Enquiry Committee for necessary action. There is no order of the Enquiry Committee on these applications though again oral evidence has been led to the effect that these applications were rejected. On the same day, when this application was given, it appears, the Enquiry Committee compiled its report and found the worker guilty of charges No. 1 to 3 mentioned above. It further stated in the report that the management had withdrawn charge No. 4 and that the worker was consequently exonerated from the same. The worker was then issued a show‑cause notice in the form of Exh. R. W. 1/Z on the 28th of July 1965, by the same Works Manager, Mr. Inayat Elahi. The worker sent his explanation in which he stated:‑ (a) that he had earlier given an application by hand and sent its copy through registered‑post in which he had submitted that when he appeared before the Enquiry Officers they simply had a talk with him for two or four minutes and that they never summoned any witness nor gave him an opportunity to lead any evidence in his defence. In this way, it was alleged that no enquiry had taken place against him and the enquiry report which had been submitted to the Works Manager was absolutely incorrect; (b) that the worker had already filed a detailed reply in connexion with the charge‑sheet in the face of which the charges were absolutely baseless; (c) that the worker was absolutely innocent and the whole proceedings had been initiated against him vindictively. The real cause, it was written in the reply, was that he had an industrial dispute (with the Department) which was still pending and that he had filed an application under section 26 of the Industrial Disputes Ordinance, 1959, against the Works Manager which had been decided on the 16th of June 1965, and in which the Works Manager had been fined Rs.100.00. The present proceedings, it was averred in the reply were a sheer concoction to take revenge of the aforesaid punishment which had been inflicted on the Works Manager by the Industrial Court. After raising the above points, it was contended that justice may be done to him and (as he was under suspension) it was prayed th4t he should be re‑instated in service,

3. This reply was considered by the same Works Manager against whom the allegation of malice had been levelled and he passed a short order which reads as follows:‑ "You are hereby informed that you are dismissed from service from the forenoon of the 17th of August 1965." Feeling aggrieved of the order and after taking the necessary steps and issuing a notice under section 18(1)(a) of the Industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance) the case was brought by the worker through his Labour Union, before the Industrial Court, which gave the award mentioned in the earlier paragraph of this judgment in favour of Khushi Muhammad holding that the department had not been able to prove that any reasonable opportunity was given to the worker in the matter of his dismissal. It may be mentioned that according to section 3 of the Industrial and Commercial Employment (Standing Orders) Ordinance III of 1961, in any Industrial and Commercial Establishment, the conditions of employment of the workmen and other incidental matters are to be regulated in accordance with the standing orders which are contained in the Schedule attached to the said Ordinance. Standing Order No. 13, attached to the said Ordinance lays down that no workman is to be dismissed unless he is given an opportunity to explain the circumstances alleged against him. The employer is also authorised in the said standing order to hold an independent inquiry, when circumstances appear to warrant it. In the instant case, the employer did deem it necessary to hold an inquiry and did in fact hold the same. One of the points which will be arising in this case will be as to whether the inquiry which was held was independent, fair, proper or reasonable or not. However, we will advert to this fact in detail at a later place in this judgment. In the present appeal against the award mentioned earlier the representative of the appellant has raised a number of contentions which we will presently dispose of.

4. The first point argued by the representative of the appellant was that Khushi Muhammad was employed in the Electrical and Mechanical Workshop of the WAPDA, Lahore and vis‑a‑vis him his employer was the Regional Manager (East) who is in charge of the Electrical and Mechanical Workshop situate at 210‑Ferozepur Road, Lahore. In this way, it was argued that the notice, which was issued under section 18(1)(a) of the Ordinance and which was directed to the Chairman, WAPDA, was illegal. According to the representative of the appellant this notice should have been addressed to the Regional Manager (East). This contention has no force. Firstly, because it was never argued and pressed before the Industrial Court in this form and cannot be allowed to be taken for the first time in the course of appeal in this Court. Secondly, even otherwise, it has no merits; because this point was directly and substantially the subject‑matter of Industrial Dispute No. 38 of 1963, decided by the West Pakistan Industrial Court (Northern Zone) Lahore, presided over by Mr. Justice A. R. Changez with Ch. Muhammad Ishaque, as its Member. The award of the Court is dated the 15th of July 1965, and was published in the Gazette of West Pakistan (Extraordinary issue), dated the 6th of August 1965, on pages 4293‑4295, and stands exhibited in the case in the form, of Exh. R/3. In this award it was held that the employer of the persons working in the E. & M. Workshop will remain the Chairman of the WAPDA and merely because the Chairman may have delegated certain powers to the Regional Manager (East), it could not mean that the delegator had denuded himself of all his powers as such. The actual passage in the judgment of the Industrial Court reads as follows: "The respondent has raised the following preliminary objections: (1) That the Chairman WAPDA is not the `employer' of the workmen of this Workshop, and that in fact, their employer is the Regional Manager (East); (2) that the Labour Union of WAPDA E. & M. Workshop is not a legally constituted body. In support of these objections, the respondent produced Mr. Hafeez Ahmad, Mr. Rehmat Ali and Sh. Bashir Ahmad. In rebuttal, the Union produced Mr. Sher Muhammad, General Secretary of the Union and Mr. Victor Masih, President of the Union. Today we have heard arguments of the representative of the parties and proceed to decide the objections. Objection No. 1: As regards objection No. 1, Mr. Hafeez Ahmad, Assistant WAPDA E. & M. Workshop has stated that at present Ch. Abdul Waheed, Regional Manager (East) is the employer of the workmen employed in the WAPDA Electrical and Mechanical Workshop, Lahore. In support of this contention he has produced the copy of the letter, dated the 3rd of April 1964, Exh. R/1, issued by the General Manager, Power, which shows that the control of the Electrical and Mechanical Workshop had been transferred to the Regional Manager (East). Under section 3 (1) of the West Pakistan Water and Power Development Authority Act, 1958, the Water and Power Development Authority was established for carrying out the purposes of this Act. Under section 4 of the Act, the Authority shall consist of a Chairman and not more than two Members appointed by the Government. Provided that till such time as the Authority is fully constituted, the Cairman shall exercise the powers, functions and duties of the Authority. Under section 1'1 of such (sic) the Act the Authority is empowered to employ officers and servant etc., for the performance of its functions, on terms and conditions as it may deem fit. Under section 18 of the Act, the Authority shall prescribe the procedure for appointment and terms and conditions o service of its officers and servants and shall be competent to take disciplinary action against its officers and servants. Under section 20 of the Act, the Authority may by general order or special order delegate to the Chairman, a Member, or Officer of the Authority, any of its powers, duties or functions under this Act subject to such conditions as it may think fit to impose. It has been contended by the representative of the respondent that the Authority has delegated its powers to the Regional Manager (East), vide Exh. R/1 and, therefore, he has become the 'employer' of the workmen employed in the workshop. We have carefully read the order Exh. R. I; which speaks only of the transfer of the control of the Workshop to the Regional Manager (East). It is not mentioned in this order that the Authority has transferred the powers under sections 17 and 18 of the Act to the Regional Manager (East). Besides, we are also of the opinion that the delegator does not deprive himself of his powers, if he delegates his functions to some other person. In the circumstances of the case, we are of the opinion that the Chairman, WAPDA, remains the employer of the workmen, employed in the Workshop. We accordingly overrule this objection," We are told by the representative of the appellant that no appeal was filed against the aforesaid award and the same, therefore. has become operative under section 14 of the Ordinance. It was laid down in Walford Transport Ltd. v. First Industrial Tribunal, West Bengal and others (1961 P L C 1109) that a previous decision regarding the status of an employee was binding on the principle of res judicata. Thirdly, the word 'employer' is defined in section 2 of the Ordinance and reads as follows:‑ "In this Ordinance, unless there is anything repugnant in the subject or context. (f) 'Employed' includes‑ (i) In relation of an industry carried on by or to the authority of any department of a Government the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; and (ii) in relation to an industry carried on by or on behalf of a local authority, the Chief Executive Officer of that authority. " If this definition is read along with the provisions of the West Pakistan Water and Power Development Authority Act 31 of 1958 (hereinafter called as WAPDA Act)‑which provisions have been analysed by the Industrial Court in Industrial Dispute No. 38 mentioned above‑it will be clear that the Chairman is the authority prescribed in the said Act to employ persons. It may further be mentioned that according to section 23 of the WAPDA Act, 1958, WAPDA is a local authority and as was admitted by the representative of the appellant, the Chairman is its Chief Executive Officer. Any notice served on the Chairman is thus valid notice and no defect can be found in the same in that behalf. For the reasons hereinbefore given we have thus no hesitation in repelling the first contention of the appellant's representative.

5. The second point argued by the representative of the appellant was that the notice which bad been issued under section 18 (PLD 1964 C 64) (a) though addressed to the 'Chairman, WAPDA' was illegal, because it was followed by the words 'Electrical and Mechanical Workshop'. It is, however, not denied that the notice was received by the Chairman, Water and Power Development Authority. It is further not the case of the appellant that Electrical and Mechanical Workshop has any separate Chairman. Rather it is a common ground that the Water and Power Development Authority has only one Chairman. In this way, the objection which is being raised by the appellant is of no significance and will not render the notice as invalid. The notice was addressed to the Chairman, WAPDA, and the addition of the words aforesaid cannot affect its validity. It was served on the proper person who was made party to the proceedings before the Industrial Court. The objection which is being raised is highly technical and has no merits.

6. The last point argued by the representative of the appellant was that the finding of the Industrial Court that it had not been proved on the record that the workman had been given a reasonable opportunity to defend himself was not correct. He argued that the workman was issued a regular charge‑sheet, to which he submitted his reply. He was also directed to participate in the inquiry proceedings, but he did not participate due to his own protest, It was further submitted that the copy of the report of the Enquiry Committee was supplied to the workman and he was given a regular show‑cause notice to which again he submitted his reply. The representative of the appellant thus argues that on these facts it cannot be held that no reasonable opportunity was given to the workman to defend himself. We cannot accept the contention of the representative of the appellant, As has been disclosed in the earlier paragraphs of this judgment that in the instant case the Works Manager had a direct enmity with the worker. At the instance of the worker the Works Manager had been convicted for disobedi ence of the orders of the Industrial Court and was fined Rs.100.00. Six days after his conviction the same Work. Manager issued a charge‑sheet and even though the defence of the worker was that the Works Manager had a direct bias against him, the same Works Manager sat in judgment over this case in which one of the points arising was as to whether he had D a bias against the worker or not. He thus could not be a judge in his own cause and the entire proceedings which took place under the supervision and control of the said Works Manager were entirely illegal and against the very foundation of the principles of natural justice or the principles of a reasonable opportunity to be given to an accused worker. It is well‑settled that a man should not be a judge in his own cause but if authority be needed reference can be made to Muhammad Mohsin Siddiqi v. Government of West Pakistan (PLD 1964SC64). This was a case where one Mr. Mohsin Siddiqi was accused of having misconducted himself towards Mr. Kadir Nawaz S. Awan, District Judge, Hyderabad. The enquiry in the case was held by Mr. Awan and commenting upon the propriety of such a procedure, the Supreme Court held:‑ "It is, therefore, somewhat startling to learn that despite every effort made by Mr. Mohsin Siddiqi to procure an enquiry before some other officer on these very grounds, nevertheless within the cognizance of the High Court, the enquiry was allowed to commence and to proceed to its conclusion before Mr. Kadir Nawaz Awan. Being himself the person whose feelings were involved, it is unquestionable that there was a danger of those feelings affecting his judgment in the evaluation of the evidence before him . . . . . . It is impossible to imagine that upon charges of insulting behaviour towards himself, Mr. Kadir Nawaz Awan could apply a detached or pure judgment to the evaluation of the supporting evidence." Then at another place, the Supreme Court observed: "The opposite view is the simpler one, namely, that to require the same men to serve both as prosecutors as well as Judges not only undermines judicial fairness, but it also weakens public confidence in that fairness. Decisions in such circumstances by the superior officers of the same adminis trative agency often come under the criticism of being rationalizations of the initial findings reached in the role of prosecutor, and presented as charges by the agency itself. The latter is the attitude generally held in these matters by judicial authorities to whom, by virtue of their function, it is anathema that any person should be a prosecutor and the Judge in his own cause. It is, therefore, calculated to cause dismay that in the present case an administrative agency composed of a single person within the frame‑work of the judiciary should have been consciously allowed to operate as prosecutor and Judge and finally as punishing authority in its own cause. This was the quarter in which such proceeding was least to be expected. In our opinion, no ground in justice can be advanced in support of the proceedings before Mr. Kadir Nawaz Awan, and every principle of jurisprudence combines to require that those proceedings should be entirely set aside." The same principle' was enunciated in‑an Industrial dispute reported in Central Wire Netting Co. Employees' Union, Karachi v. Their Management (1965 P L C 7) where it was held that if a Domestic Enquiry was held by an Enquiry Officer who is an employee of the Company (i.e., the employer) then such a person was an interested and not an independent person. It was further held that if the findings of the Enquiry Officer are partial, perverse and against the principles of natural justice or not borne out from the record, then the dismissal of the workman on the basis of such findings would amount to victimization and unfair labour practice. The Industrial Court in that case after giving the aforesaid finding re‑instated the workers with full wages from the dates of their dismissal. Applying the above principles to the facts and the circumstances of the present case, it is self‑evident that since in this case there was involved a point which directly concerned the Works Manager himself and involved scrutiny of his own conduct, he could not be a Judge in his own cause and, therefore, if it is argued that by placing the case before him, the worker had been given fair, reasonable and independent opportunity to show cause, then such a contention cannot be accepted. Reasonable opportunity does not merely comprise of issuing various notices etc., or receiving their replies but includes the examination of a case by an independent, impartial and unbiased officer who himself is not involved in the case and who has not to sit in judgment over his own conduct while examining the conduct of the accused workers. The opportunity is unreasonable from another point of view, namely that the Enquiry Officers were the direct subordinates of the charging officer. In cases of; E departmental enquiries it is essential that the Enquiry Officer' should bean independent person and must not be so connected with or related to the case or the charge involved so as to prejudge it or have bias against the person proceeded against. A long line of cases shows that it is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly seem to be _ done. In the instant case this principle does not seem to have been adhered to when the enquiry was entrusted to such Officers who were directly subordinate to the charging Officer who has a clear enmity with the workman and especially when the defence of‑ the workman was that the whole affair is a concoction of the brain, malice and vindictiveness of the Works Manager. The subordinates of the Works Manager obviously were not in a position to record a verdict against their own master.

7. What has been said above is enough to hold that the so‑called opportunity which had been allegedly given to Khushi Muhammad was neither reasonable nor appropriate and nor independent. However, there are certain other circumstances also which point towards the same results. The appellant never produced the entire Enquiry record before the Industrial Court, due to which the said Court observed that in the absence of the complete record a verdict of having afforded a reasonable opportunity could not be recorded in favour of the employer. No documentary evidence has been produced to show as to what orders were passed on the various applications mentioned earlier and by whom. Muhammad Shafi (P. W. 4) helper of the worker has deposed that no opportunity was given to lead defence. This appears to be true; because may be that initially the worker protected to the appointment of the Labour Officer as a Prosecu tion Officer against him, but after the prosecution evidence was re corded, it was then that a stage to lead the defence arose. There is nothing to indicate that any such opportunity was given. Nothing has been proved to show as to whether the plea of the worker that the Works Manager had enmity with him was taken into consideration, None of the members of the Enquiry Committee nor the Labour Officer and nor the Works Manager appeared in the witness‑box to support the fairness of their proceedings, report or the dismissal order. The report recites with reference to Charge No. 3 that Khushi Muhammad had admitted that he had quarreled with one Abdul Ghani and apologised. This is very strange. On the one hand, the stand of the appellant is that Khushi Muhammad did not participate in the proceedings before the Enquiry Officers and boycotted the same. While, on the other hand, the report says that he admitted his guilt on this count. This also shows that the allegation of the worker that the Enquiry report was baseless is correct and even though in reply to show‑cause notice the worker had contended that no enquiry had taken place, the Works Manager had never cared to attend to this plea.

8. A grievance was made during the course of arguments by the representative of the appellant that the Industrial Court had not allowed certain questions to be put to Khushil Muhammad worker when he appeared as his own witness. Whether to allow or not to allow a question is the discretion of F the Court and no interference can be made in that behalf in appeal. Anyhow, we have examined the questions which were allegedly disallowed by the Industrial Court. These questions are as follows:‑ The tenor of these questions will show that they were directed towards establishing the independent character of the Works Manager who had been convicted in the industrial dispute at the instance of Khushi Muhammad and allegedly his other co‑workers. The conviction of the Works Manager has been established by the award of the Industrial Court (Exh. R/3), and the questions which were sought to be put could not detract from the force and effect of that award. Rather these questions do show (hat Khushi Muhammad Worker was one of the complainants against the Works Manager. Regardless of the fact that the Industrial Court had disallowed the above questions, we have, however, while delivering the present judgment, taken due notice of the pleas which were sought to be raised through those questions and we are of the opinion that these questions nowhere improve upon the view which we have taken regarding the facts and the circumstances of the present case.

9. Taking up the case of Abdus Sattar Coolie and Muhammad Siddiq moulder, the broad facts are that they allegedly remained away from duty without permission but then again joined. The Department considered them as having been dismissed from service and when they joined duty, treated them as cases of re‑employment and not re‑instatement. It is a common‑ground between the parties that if these workers were to be treated as having been dismissed from employment or service for the aforesaid misconduct then no show‑cause notice was issued to them and they were not given any opportunity to defend themselves. The Industrial Court was of the view that since no notice was given to these workers and no explanation has been given as to why they were not informed about the rejection of their applications for leave, there was no justification to treat them as dismissed. It is well‑known that dismissal is a penalty, which has serious consequences and could not have been brought about without issuing a notice to the workmen concerned and without giving them a reasonable opportunity to defend themselves. Since both these things were G lacking in the case of Abdus Sattar and Muhammad Siddiq, the Industrial Court was justified in declaring their dismissal as illegal and directing that they should not be considered to have been re‑employed but merely re‑instated. No arguments have been addressed to show that this view of the Industrial Court is in, any way erroneous or not supported by law. The only point argued was that the said workers had no cause of action as they were already in service when they issued the demand and that the prayer asked for by them could not have been granted by the Industrial Court. This contention has no force, because the employer was treating them as having been dismissed from service and the Industrial Court was, therefore, justified in declaring their alleged dismissal as illegal and issuing direction that they should not be considered to have been dismissed and that this was not a case of re‑employment but merely of re‑instatement in service.

10. No other point was argued before us.

11. For the reasons given above, we see no force in this appeal which is hereby dismissed with costs throughout. K. M. A. Appeal dismissed.