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Appeals Nos. KAR-211 and KAR-223 of 1977, decided on 6th August 1977.

----Ss. 25-A & 36 -Adjudication by Labour Court-Trial and evidence-To be confined to pleadings-New stand/plea cannot be set u& in evidence nor such plea to be given any attention-Plea raised for 1st time on second affidavit before Court-Not admissible Objection regarding domestic enquiry neither raised in second show cause notice nor at any stage prior to second affidavit before Labour Court in application under S. 25-A, held, could not be taken into con sideration by Labour Court.

-- Domestic inquiry--Allegation admitted-Needs no inquiry.

Qamar Abhas for Applicant.

F. M. Azad for Respondent.

Date of hearing: 26th July, 1977.

These are cross-appeals against the order of the Labour Court.

2. Usman was in the permanent employment of the Karachi Port Trust. On 25th May, 1974 he was said to have misbehaved with the Mechanical Engineer (Tugs) and tried to assault him. He, was, therefore, charge sheeted. He submitted an explanation denying the allegations. He, however, stated that the fact was that some hot discussion took place on 25th May, 1974 between him and the Mechanical Engineer (Tugs), named Rahim Saheb on his official programme for which he was sorry and gave an assurance that in future he would not give even such, a chance. Since the explanation was not found satisfactory, an inquiry was ordered. On the conclusion of the inquiry, he was found guilty of the charge. The Inquiry Officer recommended the stoppage of two annual increments, with a final warning. A show-cause notice was served calling upon hunt as to why he should not be reverted to the lower post. Subsequently, he was reduced in rank by an order dated 18th July, 1975. Aggrieved by this, he made a representation but it was rejected. He, therefore, approached the Labour Court after service of the grievance notice.

3. The application was resisted and various objections' were taken. Evidence was tendered by both the parties. On the assessment of the evidence the Labour Court allowed the application and set aside the order of reversion on the ground that the inquiry was vitiated on account of certain illegalities. He, however, did not allow back benefits. Aggrieved by this, both the parties filed appeals.

4. On perusal of the record and proceedings and hearing the, arguments I am of the view that there was no justification for the Labour Court to cancel the order of reversion of Usman. The learned Presiding Officer relied upon four grounds. The first ground taken by him was that the Inquiry Officer recorded the statements of Ahmad Abubakar, Din Muhammad, Shamim and Abdul Rahim without showing the date when they were examined. He, however, pointed out that Usman was examined on 24th October, 1974 whereas Muhammad Shamim was examined on 31st October, 1974 as revealed by the inquiry proceedings and, therefore the Inquiry Officer did not act in accordance with law and violated the principle of natural justice by directly cross-examining Usman before examining the witnesses as if the onus of proof was upon him.

5. The second ground that he put forth was that none of the witnesses was examined on oath. The third ground which was stated was that no opportunity was allowed to Usman to cross-examine the witnesses. Lastly, he stated that the statements of witnesses and Usman were recorded in the form of question and answer.

6. The learned counsel for the Karachi Port Trust took exception to the order of the Labour Court on the main ground that none of the allegations was disclosed either in the grievance notice or in the application made under section 25-A, Industrial Relations Ordinance, or in the affidavit which was filed along with the application and, therefore, these could not be considered despite the fact that these were disclosed for the first time in the second affidavit filed long after the application made under section 25-A, Industrial Relations Ordinance. I find considerable force in this contention. I seems clear that the learned Presiding Officer clearly disregarded the settled principle of law that the trial of the case and the evidence has to be confined to the pleadings of the parties and no new case is allowed to set up in evidence nor the fresh plea can be given any attention. It is al pertinent to note that at no stage prior to the filing of the second affidavit. Usman raised any objection to the inquiry or the procedure adopted by the' Inquiry Officer.

7. Apart from what has been stated, a reference to the explanation submitted to the first show-cause notice as well as to the evidence is also very material. In the explanation, although, he had denied having misbehaved with the Mechanical Engineer, but he admitted that some not discussion had taken place between them on some official problem and he also expressed regret. In case he did not misbehave, the question of express ing regret did not arise. Not only this, but in the evidence he clearly stated in answer to question No. 26 that he was in anger, and he uttered some words which he did not remember. I would like to produce questions Nos. 35 and 36 and their answers which read as under:-

"Q. 35.-I myself personally visited the Workshop in connection with this enquiry. I found out that you were very furious and using all insulting and dirty words while leaving his office

A.-Yes I was in hot tempered because of having hard words exchange with Mr. Rahim.

Q. 36.-Did you in any way threaten Mr. Rahim for the dire conse quence

A.-No sir I never threatened him other than hard words exchanged I might have used some insulting language because I was upset with his order sending me on small tug as I took it my insult."

8. In answer to question No. 36 he admitted that he had refused to obey the order given to him In view of these answers there can be no manner of doubt that Usman had, in fact, admitted the allegations and the question of any further inquiry was unnecessary, So even if some witnesses were examined after his evidence, it hardly makes any difference. Moreover, in the second affidavit no such allegation was made and it is not under stood how the learned Presiding Officer stated that an objection to that effect was raised.

9. Regarding the objections that the opportunity was not allowed to Usman to cross-examine the witnesses and oath was not tendered, I have already stated that these allegations were never made at the proper stages and could not be taken into consideration. Even under the Oath Act such an irregularity does not vitiate the proceedings.

10. In result I allow the appeal filed by K. P. T. and set aside the order passed by the Labour Court cancelling the order of reduction. In view of this, the appeal filed by Usman is dismissed.

Appeal dismissed.

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