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Appeal No. KAR‑392 of 1976, heard on 28th October 1976.
---S. 25‑A‑Dismissal from service‑Inquiry, competence to hold---Officer competent to issue charge‑sheet‑Not disqualified to issue charge‑sheet on ground of being assaulted by accused worker.
---S. 25‑A‑Charge‑sheet, particulars in‑Name of officer assaulted by worker, accused not mentioned in charge‑sheet but his designation clearly mentioned ‑No allegation of any other person having held similar post in Management‑Held: No ambiguity in charge‑sheet and accused worker could entertain no doubt as to nature of allegations and person for whom he stood charged.
---S. 25‑A‑Show‑cause notice, authority to issue‑Dismissal order passed by acting Managing Director while show‑cause notice issued by Factory Manager‑Factory Manager being incharge of factory, held, could be treated as employer and no written authority to issue charge sheet necessitated.
---S. 25‑A‑Inquiry‑Witnesses for complainant simply asked whether statement made by complainant correct ‑Separate statement not recorded‑Procedure, held, illegal and inquiry vitiated.
Samiullah Khan for Appellant.
H. A. K. Warsi for Respondent.
Date of hearing: 28th October 1976.
This is an appeal against the order of Labour Court ordering re instatement with full benefits on an application made under section 25‑A of the Industrial Relations Ordinance.
2. The respondent was working as Senior Operator with the appellant since 5th November, 1968. He was paid to have committed some act of misconduct and was charge‑sheeted. Inquiry was held and he was found guilty. After second show‑cause notice he was dismissed from service. Aggrieved by this, the respondent appoached the Labour Court under section 25‑A of the I. R. O.
3. The application was resisted and it was pleaded that the respondent was found guilty of misconduct after due enquiry and, therefore, the dismissal was fully justified.
4. Evidence was taken. The Labour Court on the basis of the evidence found that the appellant bad commited various illegalities in holding the enquiry, and, therefore, the dismissal order passed on the basis of that enquiry could not be upheld. Cosequently, he passed the impugned order.
5. Now I proceed to deal with the ground which weighed with the learned Presiding Officer for passing the order. According to the allegations; Mr. Zaidi was assaulted by the respondent and the charge‑sheet was also framed by Mr. Zaidi. The view of the learned Presiding Officer was that since Mr. Zaidi was assaulted, ha was not competent to charge‑sheet the respondent. I find no force in this view. The main question is whether A Mr. Zaidi was competent to charge‑sheet or not. On this point there is no dispute. Consequently, the charge‑sheet issued by Mr. Zaidi is not open to any exception. No such legal bar has been pointed out to me.
6. It was next urged by the Labour Court that the name of the person who was assaulted was not mentioned in the charge‑sheet. Indeed the name was not shown but the designation was clearly mentioned. Mr. Zaidi was the person who was holding that post which was shown in the charge‑sheet. There is no allegation that any other person was holding the similar post in the management. Consequently, there was no ambiguity and the respondent entertained no doubt as to the nature of the allegation and the person for whom he was charged.
7. The third point that was taken was that Mr. Bajwa who was a factory Manager had issued the second show‑cause notice whereas the dismissal order was passed by Sardar M. Aslam Khan, the acting Managing Director. The learned Presiding Officer observed that it was not explained how different persons came into the picture and under what manner Factory Manager was competent enough to issue show‑cause notice when admittedly there was no written authority given to him by Mr. Sardar M. Aslam Khan. This view of the learned. Presiding Officer has also no force. In the first place, no such plea was taken in the application made under section 25‑A. Secondly the Factory Manager being incharge of the factory could be treated to be employer within the definition of employer.
8. Next ground that was taken was that enquiry was held in an abnormal manner. There is much force in this. The statement of Mr. Zaidi was recorded and when the other two witnesses Mohammad Naseer and Sher Mohammad appeared to give evidence, they were simply asked as to whether statement made by Mr. Zaidi was correct and they answered in the affirmative. Their separate statements were not recorded. This was quite illegal and such an inquiry cannot be upheld. An allegation was also that the first page of the inquiry was changed. There also seems to be some force because the page does not bear the signature of the respondent although care was taken to take signatures on all other papers which were prepared during the course of the inquiry.
9. It was further urged that the statements of witnesses examined during the inquiry were not tendered on oath and dismissal was barred by virtue of the provisions of section 72 of the Social Security Ordinance. It is not necessary to deal with these objections in view of the illegality pointed out in the preceding para, which is fatal to the inquiry.
10. Having regard to the ground dealt with in para., (8) of this order, I dismiss the appeal. It is, however, open to the appellant to hold fresh ieuuiry if it is acv desired and take any action in accordance with law,
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