1992 PLP 1131 (PLC(CS))

This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad, dated 15-4-1987, whereby the grievance petition of the respondent was allowed and the respondent was ordered to be reinstated with full back benefits.

2. I have perused the `written arguments' of Mr. Mahmood Abdul Ghani, learned Representative for the appellants and Mr. M. Bashir Awan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

3. Brief facts of the case arc that the respondent was admittedly appointed as workman by the appellants. He was charge-sheeted on 16-6-1985 for having committed misconduct punishable under Standing Order 15(3)(h) and (k). He is alleged to have incited the workers on 11th, 12th and 13th of June, 1985 and to have started procession in which slogans were raised against the management where improper language was used against the management as the result of which the workers misbehaved with and insulted the mill officer. After enquiry the respondent was dismissed from service by order, dated 18-7-1985. The respondent alleged that he was victimized because of union activities and further that the enquiry was not fair and partial. The respondent therefore after serving grievance notice upon the appellants filed the grievance petition.

4. Admittedly no defence witness of the respondent workman was examined by the Enquiry Officer. According to the respondent the Enquiry Officer refused to examine his witnesses whereas according to the Enquiry Officer, Mr. Abdul Rasheed, respondent himself gave in writing that he did not want to examine any witness. On going through the record of the enquiry proceedings produced before the learned Labour Court it appears that at the end of his statement the respondent has stated that he did not want to produce any witness because the management would victimize them also. In the opinion of the learned Presiding Officer these words appears to have been subsequently written. There appears to be great force in this opinion of the learned Presiding Officer. The Enquiry Officer, Mr. Abdul Rasheed, in his cross-examination, had stated that it was incorrect that the respondent continued to search him for production of witnesses but he could not be traced. However he voluntarily stated that respondent had appeared before him and thumb-marked his statement to the effect that he would not produce his witnesses. From this statement, it appears, that the respondent made separate statement stating that he did not want to produce witnesses which he thumb marked but in fact this sentence was written in the end of the statement of the respondent. It is also admitted by the Enquiry Officer that these proceedings, including the statement of the respondent, were not written in his handwriting but were recorded on his dictation. The person who recorded the statement, was also not examined by the appellants to show that the respondent had made statement to the effect that he did not want to examine any witness. It may also be pointed out that the respondent is an `illiterate' person and has simply thumb-marked the proceedings. The space, between the fine containing the disputed statement of the respondent and the line above, also appears to be a little shorter as compared to space between other lines. It also create suspicion that the above words might have been written later on.

5. Admittedly the respondent on 13-7-1985 moved an application to the management, which is Exh. A/4, alleging therein that he had taken his witnesses to the Enquiry Officer but the Enquiry Officer did not examine them but threatened them and drove them out. This application was admittedly received by the appellants on 16-7-1985. It may also be pointed out that Exh,A/5 contains two postal receipts and two acknowledgment receipts under which this application was sent to the General Manager of the appellants and also to the Additional Director of the Labour Department. The acknowledgment receipt shows that the letter was received by the Additional Director on 14-7-1985 whereas it was received by the appellants on 16-7-1985 'Both the letters were despatched on 13-7-1985. It is alleged by the respondent that the management always tried to receive them and used to make delay in the receipt of letters from workers. I need not go into this controversy but the fact remains that the application was received by the appellants on 16-7-1985. No doubt the Enquiry Officer submitted report of enquiry on 13-7-1985 but the order of dismissal was passed on 18-7-1985. Under the circumstances it would have been more fair and proper if the enquiry papers would have been sent back to the Enquiry Officer directing him to examine the witnesses that may be produced by the respondent. The failure of management to give opportunity to the respondent to produce his witnesses would render all the proceedings of enquiry as unfair and illegal.

6. The above circumstances, in my opinion, make the conduct of enquiry to be not above doubt, which appears to be violative of the general principle of natural justice and also provisions of Standing Orders 15(4) as the respondent was not given chance to explain the allegation against him by examining his witnesses. The order of dismissal based on such enquiry is not tenable and has rightly been set aside by the learned Labour Court.

7. Mr. Mehmood Abdul Ghani, in this context, has relied upon the case of Islamabad Club v. Punjab Labour Court No. 2 and others PLD 1980 Supreme Court

307. In that case also the order of dismissal was set aside on the ground that no reasonable opportunity was given to the employee in the domestic enquiry. However, their Lordships observed:-- "The authorities of the Islamabad Club are still anxious to pursue the matter, it would clearly be open to them to resume the proceedings by furnishing a copy of the enquiry report to the respondent and giving him a reasonable opportunity to show cause against the proposed order of dismissal on the grounds found against the respondent by the Inquiry Officer." Reliance is also placed on the ease of Steel Corporation of Pakistan Ltd. v. Sherzamin and others 1968 SCMR 355, wherein their Lordships have observed:- "In these cases, the holding of the domestic enquiry ex parte was apparently unjustified, and in refusing permission to dismiss, the Industrial Court should have directed that the enquiry be held afresh after due opportunity to appear and defend had been given to the respondents. These petitions are dismissed with that observations." In the case of Muhammad Arshad Khan v. J & P Coats Pakistan Ltd., Karachi and 2 others PLD 1977 Kar. 83, a learned Single Judge of the High Court at Karachi had held "the Labour Court was competent under section 25-A to give direction for holding fresh enquiry".

8. The respondent is charge-sheeted with serious charges. The order of learned Labour Court setting aside order of dismissal of respondent is upheld on the ground that the domestic enquiry did not appear to be fair. Under the circumstances it will be open to the management to hold fresh enquiry on the same charge-sheet through some independent Enquiry Officer in accordance with the principle of natural justice and the provision of Standing Orders Ordinance. Mr. Mehmood Abdul Ghani has also submitted that if the fresh enquiry is ordered the payment of back benefits be made dependent upon the result of such enquiry. He relied upon the case of Mahmood Shah v. Dawood Cotton Mills Ltd. and another 1982 PLC 365, wherein a Division Bench of Sindh High Court at Karachi had upheld the decision of this Tribunal making question of back benefits dependent upon the result of fresh enquiry.

9. In view of the above discussion the appeal is dismissed. The management could, however, if they so desire, hold fresh enquiry on the same charge as observed above but should complete it within four months. The question of back benefits could be dependent upon the result of such enquiry. If no enquiry is held or not completed within the period specified above, the back benefits be released to the workman on due verification, unless the appellants obtained further extension of time for completion of the enquiry not completed within the specified period due to result of any act of omission or commission on the part of the respondent. M.Y.H./1819/Lb.S Appeal dismissed.