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Appeals Nos. KAR‑234 and 281 of 1980, heard on 23rd April, 1980

------ S. 25‑A read with West Pakistan Industrial and Commercial, Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15-- Misconduct‑Punishment‑Labour Court‑‑Cannot substitute punish ment on leniency ground.

‑ Domestic enquiry‑Procedure‑Quasi‑judicial in nature‑Copies of statement of witness‑Not supplied despite request for use in submission of reply to second show‑cause notice‑Violation of rule of natural justice‑Enquiry in circumstances, held, suffered from serious legal infirmity‑Punishment order passed consequently, held, rightly set aside‑Employer, however, given option to hold fresh proceedings.

Associated Electrical Industries v. Employees' Union P L D 1973 Kr. 167 and Ahmed Investment Ltd. v. Sind Labour Court 1978 P L C 567 rel.

Masud Mirza for Respondent (in Appeal No. KAR‑281 of 1980).

Ch. Rashid Ahmed for the Workman.

Date of hearing : 23rd April 1980.

These are two cross appeals, which are directed against a decision of the learned First Labour Court, given on 29th March, 1980, holding that it is sufficiently proved that the offending workman had quarrelled with the section clerk and such behaviour on his part was subversive of discipline, but taking the view that the punishment of dismissal awarded to the workman was disproportionate to his offence and in the circumstances directing the management to re‑instate the workman but withholding from him back benefits. Appeal No. 234/80 has been preferred by the management against the direction of the learned Labour Court for the re‑instatement of the workman while Appeal No. 281/80 by workman Muhammad Saleem is against denying him his claim of back benefits. Both the appeals will be disposed of by this order.

2. Muhammad Saleem, appellant in Appeal No. 281/80, was employed as a technical assistant, grade 3, in the Karachi Shipyard & Engineering Works Ltd., hereinafter referred to as 'the Shipyard'. He was charge -sheeted on 28th April, 1919, for being rude and arrogant 'to the time clerk and deliberately leaving the shipyard without punching his card. A domestic enquiry followed in which three witnesses, namely, Shahid Hameed, Ghulam Asghar Shaikh and Abdul Razzak were examined on behalf of the management. No defence was led .by Muhammad Saleem. The Enquiry Officer came to the conclusion that the charge against Muhammad Saleem was established and made such a report to the manage ment which thereupon dismissed him from service, vide their order dated 15th August, 1979, Muhammad Saleem challenged those orders before the learned Labour Court by means of a grievance petition under section 23‑A, I. R. O. which was partly successful, as already indicated.

3. I have heard Mr. Masud Mirza, who appeared for the Shipyard, and Mr. Ch. Rashid Ahmad, who represented workman Muhammad Saleem. Two points fall to be considered in the instant case. The first is whether the learned Labour Court was competent to substitute for the punishment imposed on Muhammad Saleem by the management a different punishment according to its notion of what was the appropriate punishment to the circumstances of the case. Any controversy as to the powers of the Labour Court in this behalf has been settled by the recent judgment of their Lordships of the Supreme Court in the case of Pakistan Tobacco Co. Ltd. v. Chanan Khan and others, decided on 26th January, 1980. It was held in that case that; "It is for the employer to assess as to what punishment should be awarded for misconduct under the provisions at the statute; and if the employer choses to award dismissal, the (first Junior Labour Court cannot sit in judgment over it and substitute it with lenient punishment".

4. It next falls to be considered whether the domestic enquiry against workman Muhammad Saleem was conducted in a fair and impartial manner and in accordance with the rules of natural justice, and if so, whether his misconduct was established in the enquiry. Mr. Ch. Rashid Ahmed, the learned counsel for Muhammad Saleem, attacked the enquiry proceedings and characterised them as violative of the principles of natural justice on the grounds, firstly, that no copy of the complaint against workman Muhammad Saleem was furnished to him despite his request in this behalf; secondly, that the Enquiry Officer was biased and was not changed by the management despite applications made by Muhammad Saleem requesting change of the Enquiry Officer : and lastly that copies of‑ the statements of witnesses recorded in the domestic enquiry were not furnished to Muhammad Saleem although he made a demand for the same for the purposes of submitting his reply to the second show‑cause notice. It was observed by a learned Single Judge of the Karachi High Court in the case of Associated Electrical Industries v. Employees' Union (P L D 1973 Kar. 167), that the domestic enquiries procedure is in the nature of quasi‑judicial procedure, as such I consider it necessary that the workman against whom an enquiry has been held by his employer should in all fairness be supplied with the copies of statements of witnesses whose evidence is recorded during the course of enquiry". In the recently decided case of Ahmed Investment Ltd. v. Sind Labour Court (1978 P L C 567) another learned Single Judge or the Karachi High Court has observed as follows:

"If a worker asks for copies of statements of the witnesses the manage ment cannot held back the same and if it is not done, the same would certainly amount to violation of the rules of natural justice."

5. In the instant case, it has been established that respondent was not furnished copies of the statements of the witnesses recorded during the domestic enquiry, though he specifically asked for the same for the purposes of submitting his reply to the second show‑cause notice. As such, there has been a violation of the rules of natural justice and the domestic enquiry suffers from serious legal infirmity. I would, accord ingly, partly uphold the impugned decision of the learned Labour Court but give an option to the management to hold a fresh enquiry in which full opportunity should be given to respondent Muhammad Saleem to defend himself. The award of back benefits would depend upon the result of that enquiry.

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