1992 PLP 1160 (PLC(CS))

Wasi Ahmed, Representative for Respondents. Date of hearing: 6th August, 1996. DECISION This is an appeal against the order dated 8-1-1990, passed by the learned Presiding Officer, Fourth Sindh Labour Court at Karachi whereby the grievance petition of the appellant was dismissed.

2. I have heard Mr. Khalilur Rehman, Representative for the appellant and Mr. Wasi Ahmed, Representative for the respondents and have also gone through the record and proceedings of the case.

3. The appellant was admittedly a workman working with the respondent. He was admittedly Staff Trustee and Member of Works Council on behalf of the union in respondents company as admitted by Mr. Masoodul Hassan, witness for the respondents. On 19-4-1988 he was charge-sheeted for committing two acts of misconduct viz. altercation, which ensued in the office of General Manager, with Mr. S. Niaz Hussain G.S.O. (F&B) and secondly that he committed rowdy behaviour on 16-4-1988 in connection with a matter which did not concern him at all. Mr. Zafrul Haq, Advocate was appointed as Enquiry Officer and on his report the appellant was dismissed from service vide order dated 11-6-1988. After serving grievance notice upon the respondents the appellant filed grievance petition which was dismissed by the learned Labour Court.

4. The main allegations of the appellant are that in his capacity Trustee and Member of the Works Council he used to enquire about the funds from the management and therefore, incurred displeasure of General Manager and the Finance Manager who implicated him falsely in the instant case. He further contended that the Enquiry Officer did not conduct enquiry fairly and that he had requested for change of Enquiry Officer but no decision was taken by the management. It may be pointed that neither the General Manager nor Finance Manager nor Enquiry Officer have been examined by the respondents.

5. These averments of the appellant made in the grievance petition were denied by the respondents in the written statement but the person who signed the written statement has not been examined and as such this written statement cannot be considered as evidence for the purpose of rebutting to the averments made by the appellant. Reference may be made to PLD 1977 SC 109 and PLD 1972 SC 25.

6. The witness examined by the respondents Mr. Masoodul Hassan has shown his ignorance about every question of fact put to him. He also showed his ignorance, as to whether the appellant had written any letters to the General Manager and Finance Manager enquiring about the funds. He also showed his ignorance whether the appellant had written for the change of the Enquiry Officer and that the same was not considered. He of course denied the suggestions that the appellant was present in the enquiry on 25th and 26th of May, 1988 but he was wrongly and illegally declared ex parte, but his statement cannot be given any weight as he does not claim to be present during the enquiry on the aforesaid dates.

7. At page 101 of the R & P, there is photocopy of the application of the appellant addressed to the Acting General Manager of the respondents on 25-5-1988, intimating him that he had no faith in Enquiry Officer and requested for the change of Enquiry Officer. There is no evidence that this application was considered or rejected and the appellant was so intimated. The learned Presiding Officer, in his impugned order, has remarked that if it had been proved that the application for the change of Enquiry Officer was received by the General Manager of the Respondents then the proceedings of the enquiry would have definitely become illegal for at least not having even communicated the decision to the applicant (appellant) on that application. He has however shifted the burden of proof upon the appellant to prove that the letter for change of Enquiry Officer or letters regarding the enquiry about funds were actually received by the General Manager. I have already pointed, that the appellant has produced the photocopy of the letter at page 101 alongwith his grievance petition and the fact of receipt of his application is specifically not denied either in the written statement or even by the witness of the respondents. The appellant in his affidavit-in-evidence on oath had also produced this copy in support of his claim which in my opinion in absence of any evidence rebuttal would be sufficient proof. I have already pointed that the witness of the respondents has shown his ignorance with respect of these averments.

8. The learned representative for the appellant had also attacked the impartiality of the Enquiry Officer by pointing out that in the enquiry report, in the end the Enquiry Officer has commented upon the past conduct of the appellant, which was not subject-matter of the charge-sheet. From the letter of dismissal. I observe that while passing the order of dismissal the management had kept in view his past record, which shows that they were influenced by comment of the Enquiry Officer in the enquiry report. Mr. Khalilur Rehman has relied upon the case of Islamabad Club v. Muhammad Aslam etc. 1982 SCMR 126 wherein their Lordships of Supreme Court of Pakistan set aside the I order of dismissal awarded on findings as recorded by the Enquiry Officer on matters, which were not included in the original charge and held that " it must have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent as it was manifest, that he was influenced by the seriousness of the other matters relating to the conduct of the respondent, and therefore, the order of dismissal clearly stood vitiated." Mr. Khalilur Rehman had also relied upon the decision of a learned Single Judge of Sindh High Court at Karachi in the case of M/s. Souvenir Tobacco Co. Ltd. v. Sindh Labour Court No.2 and others, 1987 PLC

605. In-that case the Enquiry Officer was not produced by the appellant establishment in support of his enquiry report and to rebut allegations of partiality and misconduct. The Labour Court and the Labour Appellate Tribunal drew adverse inference against the management due to non-production of Enquiry Officer in evidence. The learned Single Judge of the High Court upheld the view of this Tribunal.

9. Keeping all the above facts and law in view the enquiry in this case does not appear to be fair and as such the order of dismissal of the appellant on the basis of such enquiry is not sustainable. I, therefore, allow the appeal and direct the reinstatement in service of the appellant with 50% back benefits. The order to be implemented within one month. M.Y.H./1731/Lb.S Appeal allowed.