1984 PLP 671 (PLC)

(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑ ‑‑ S. O. 15(4)‑Domestic enquiry‑No particular form of enquiry prescribed‑Rules of evidence not strictly applicable‑Enquiry Officer not expected to conduct himself as trained judicial officer -Accused's reply during enquiry same as his reply to show‑cause notice clearly stating that he did not want to say anything further after close of prosecution evidence‑Findings of enquiry sought to be challenged as not fair on grounds that accused not asked by Enquiry officer whether he wanted to examine witnesses in defence‑Enquiry Officer taking into consideration defence version and findings found neither basically incorrect nor manifestly perverse‑Findings of Labour Court that enquiry was neither fair nor independent, in circumstances, held, not justified and appeal against orders of Labour Court accepted by Appellate Tribunal -Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3). Ghulam Muhammad Khan v. District Manager, Government Transport Service, Hyderabad 1970 P L C 115 rel. Masood Ahmed Khan for Appellant. Nemo for Respondent. Date of hearing : 13th September, 1983. This appeal is directed against the order, dated 24th November, 1982 passed by 1st Sind Labour Court, Karachi, ordering re‑instatement of the respondent in service with full back benefits.

2. The facts leading upto the appeal briefly stated are that respon dent was employed as a Technician with the appellant Corporation. He remained absent without leave for 11 days with effect from 7th May, 1980 to 17th May, 1980. A show‑cause notice was issued against him for misconduct. He replied to the show‑cause notice denying allegations. His reply was found unsatisfactory. He was, therefore, served with a charge‑sheet and his reply to the charge‑sheet as he stated was the same he had submitted to the show‑cause notice. A domestic enquiry was held against him by Mr. Javed Rasool, who was appointed the Enquiry Officer. He was found guilty, for misconduct and a show‑cause notice was served on him as to why he should not be dismissed from service. He made no reply to that show‑cause notice, but appeared for a personal hearing, whereafter he was served with an order of dismissal, dated 12th October, 1980. He served a grievance notice on the appellants and on receiving a reply, his grievance having not been redressed, he filed an application under section 25‑A, I. R. O., 1969, in the learned Labour Court. The learned Labour Court by the impugned order stated above ordered his re‑instatement in service with full back benefits. Aggrieved by this Order, the appellants have come in this appeal.

3. I have persued the entire evidence recorded in the learned Labour Court and have also heard Mr. Masood Ahmed Khan, the learned counsel for the appellants, whereas the respondent and his counsel have remained absent on the dates of hearings right up from 17th March, 1983. The respondent examined himself and his witness Shahzad Bashir Butt, whereas the appellants examined Javed Rasool, Principal, Engineer in the appellants Corporation, the Enquiry Officer. The enquiry papers have also been brought in the evidence on the record. I find from the impugned order that the learned Labour Court has allowed the application of the respondent filed under section 25‑A, I. R. O., 1969, firstly on the merits of the case itself, and secondly that the domestic enquiry held against the respondent was neither fair nor independent.

4. The learned counsel for the appellants has contested both the grounds on the basis of the evidence oral as well as documentary avail able on the record. So far the first ground is concerned, he has con tended that absence without leave for more than 10 days constitutes misconduct under the Rules of the Corporation as well as under Stand ing Order 15(3)(e) of the Standing Orders Ordinance, 1968. The case of the respondent is that due to the instance of violence in which members of the two rival Unions were involved, he felt scared and, therefore, he could not attend duty on 7th and 8th of May, 1980. His case further is that 9th and 10th of May, 1980 were weekly off‑days being Friday and Saturday. When he came on duty on 11th May, 1980 one of his colleagues advised him not to attend the duty. He, therefore, submitted his appli cation for leave to his Group Incharge, Mr. Javed Rasool for 5 days with effect from 11th May, 1980 to 15th May, 1980. His further case is that 16th and 17th of May, 1980 were weekly off‑days being Friday and Saturday and he attended his duties on 18th May, 1980 (Sunday). On scrutinizing the evidence on record, I find that it is admitted that respon dent did not attend duty on 7th and 8th of May, 1980. So far absence for 9th and 10th of May, 1980 is concerned, the appellants Leave Rules in its P. I. A. Administration Manual at its clause 21‑4‑01 at Mark P‑2 on the record say that Sundays or holidays may not be prefixed or affixed to any type of leave except with the prior permission of the appropriate authority. What is clear that it is admitted that the respondent remained absent without leave on 7th and 8th of May, 1980 Wednesday and Thursday and he could not under the Rules suffix 9th and 10th of May, 1980 being Friday and Saturday without prior per mission of the appropriate authority. His case further is that he attended the duty on 11th and was advised not to attend and, therefore, be submitted his leave application for 5 days with effect from 11th May, 1980 to 15th May, 1980 to his Incharge, Mr. Javed Rasool. There is no evidence in support of the plea that he submitted the leave applica tion to Javed Rasool. In support of his version, he examined only wit ness Shahzad Bashir Butt, his colleague to the effect that he had handed over such leave application to Mr. Javed Rasool in his presence. What I find that the version to the effect that the application was handed over to Javed Rasool in presence of Shahzad Bashir Butt has been disclosed by the respondent for the first time in his evidence in Court. Nowhere right from the reply to the show‑cause notice, in grievance notice of during the course of the domestic enquiry or even in his grievance application or anywhere else he disclosed his version to the effect that he had handed over the application to Mr. Javed Rasool in presence of his colleague, Shahzad Bashir Butt. The version to that effect is, therefore; clearly an afterthought and Shahzad Bashir Butt in the circumstances is not a reliable witness. I would, therefore, find that the alleged leave application for 5 days with effect from 11th May, 1980 to 15th May, 1980 was not handed over to Mr. Javed Rasool as there is no reliable evidence to support the version to that effect. What I further find that the P. I. A. Administration Manual (Leave Rules) of the appellant Corporation produced at Mark R‑2 on the record, at clause 21‑06‑02 say that casual leave shall not normally be granted for more than 3 days at a time except in case of sickness. Accordingly, there is no evidence at all in support of either such leave application or that it was granted as normally it could not be granted under the Rules of the Corporation. So far 16th and 17th of May, 1980 claimed as off‑days being Friday and Saturday are concerned, as already stated by me they could not be suffixed except with the prior permission of the appropriate authority which admittedly is not forthcoming in the present circumstances. Accordingly, there is no evidence worth consideration in support of the pleas of the respondent that his absence for 11 days with effect from 7th May, 1980 to 17th May, 1980 was not unauthorised. There is no dis pute that absence without leave would constitute misconduct within the meaning of the Rules of the appellant Corporation as well as Standing Orders Ordinance, 1968. On merits, therefore, I do find that the conten tions raised on his behalf of the appellant have enough substance.

5. So far the second ground to the effect that the enquiry was neither fair nor independent is concerned, the learned counsel for the appellants has contended that there is no evidence available to the effect that Mr. Javed Rasool was in any way either witness in the domestic enquiry or interested one‑way or the other. It is an admitted position that no reliable evidence has been produced to show that the application for leave for 5 days as stated above was at all given to Javed Rasool and that he granted the leave orally, as Shahzad the only witness to that effect does not seem to be a reliable witness for the reasons stated above. Assuming what the respondent says is correct, there is no reason as to why he did not protect either to the management or to the Enquiry Officer, Javed Rasool at the relevant time when the enquiry was conducted by Javed Rasool as the Enquiry Officer. It is an admitted position that he participated in the enquiry. He has also admitted in his cross -examination that he did not write any letter to the management about the appointment of Javed Rasool as the Enquiry Officer. He also gave nothing in writing to the Enquiry Officer, Javed Rasool not to proceed with the enquiry as he was a witness in the case. On the contrary he got an adjournment on the ground of his illness and the enquiry officer adjourned the enquiry proceedings. On the next date of hearing he cross‑examined witness Mr. Shaiq Ali produced on behalf of the management. Mr. Shaiq Ali produced the attendance certificate of the respon dent from the record to prove that he was absent right up from 7th May, 1980 to 17th May, 1980. It has been contended by the learned counsel for the appellants that since no objection to the enquiry being held by Mr. Javed Rasool was raised at the time when the enquiry was held, no prejudice was caused to the respondent and he could not raised the objection to that effect at this belated appellate stage. Reliance in that respect has been placed on the ruling of the Supreme Court in the case of Sardar Muhammad Ayub v. Pakistan through Secretary, Ministry of Resettlement and Rehabilitation Rawalpindi and others (1969 S C M R 96 (2)) wherein it was held that `person acquiescing and parti cipating in proceeding before a Tribunal cannot subsequently chal lenge order to be without jurisdiction because it went against him'. Relying on this authority, this Tribunal also held the same view in the case of Muhammad Makki and 2 others v. Noor Silk Mills Ltd., Karachi (1970 P L C 67). The same view was also adopted by this Tribunal in the case of Sind Tobacco Co. Hyderabad v. Zameerudin (1974 P L C Note 48 at p. 26) holding that the worker having participated in the enquiry without any objection of such a nature would be disentitled from challenging the same subsequently. I would, therefore, find that the respondent failed to raise an objection challenging the independence of the enquiry officer at the appropriate time and no prejudice appears to have been caused, to him.

6. It was next contended by the learned counsel for the appellants, that the learned Labour Court has held that the domestic enquiry was not fair for the reasons that the cross‑examination of the respondent to witness Shaiq Ali was not put in question and answer from and that the respondent was not asked whether he wanted to examine witnesses in defence and, therefore, the enquiry was not fair. What I find that the Standing Order 15 of the Standing Orders Ordinance, 1968, does not prescribe any particular form of enquiry. Moreover, the Rules of Evidence would not be strictly applicable to case of domestic enquiries. It is also not excepted from the enquiry officer in the domestic enquiry to conduct himself as a trained Judicial officer. I have also seen the enquiry papers carefully and find the statement of the respondent therein, clearly show that his reply in the enquiry is also the same as his reply to the show‑cause notice. He has also clearly stated that he did not want to say anything further on the same subject. His clear statement to that effect in the enquiry papers after the close of the prosecution evidence against him would clearly show that he neither wanted to make any detailed statement nor did he want to examine any witness in defence. Had his intention been otherwise, I do not think the enquiry officer had any reason to disallow it as he had already allowed him even an adjournment on his request. It was held by this Tribunal in the case of Ghulam Muhammad Khan v. District Manager, Government Transport Service, Hyderabad (1970 P L C 115) that the enquiry officer is not excepted to deal with the enquiry as a trained Judicial Officer. It would be sufficient that while dealing with his findings he had not ignored the defence version and that he had taken the same into consideration. Looking at the enquiry papers and the enquiry report and the manner in which the enquiry officer has dealt with the enquiry proceedings, it is clear that the findings are neither basically incorrect, nor manifestly perverse. I would, there fore, find that there is no material available on the record to justify the conclusion reached by the learned Labour Court that the domestic enquiry in the manner it was conducted was neither fair nor independent. The contentions raised on behalf of the appellants in that respect are not without force. The appellants would accordingly, succeed on both the grounds.

7. The result is that the impugned order passed by the learned Labour Court is set aside and the appeal is allowed. A. E. Appeal allowed.