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Appeals Nos. KAR‑640 and 641 of 1980, heard on 14th December, 1980.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of II968)‑

---S. O. 15(3)(h)‑Misconduct‑Act subversive of discipline ‑Super visor assaulted outside Factory premises after working hour‑Assault made in connection with report of Supervisor result. In, in termination of services of a probationer‑Time and place of incident, in circumstances, held, not material and accused, held further, rightly charged for act subversive of discipline.

Muhammad Kabir v. Pakistan Tourism Development Corporation 1978 P L C 493 and Gharo Textile Mills Ltd. v. Muhammad Sultan 1980 PLC999rel.

Domestic enquiry--Allegation In charge-sheet---Cannot treated as untrue simply because no other person witnessed inci dent except complainant, Report to Police made by complainant on very night of incident about an hour after occurrence‑Accused mentioned in such report and circumstances stated therein relating to assault on complainant, held, sufficient to be relied upon‑‑Person not mentioned in such report, held further, could not be treated as accused.

S. M. Kohistani for Appellants.

Muhammad Abdul Ghani for Respondents.

Date of hearing : 14th December, 1980.

The two appellants, who were employed as weavers in the respon dent Cotton Mills, were dismissed from service,, with effect from 18th March 1980, on the charge of assaulting Mohammad Yonus a Supervisor in the respondent Mills, outside the gate of the Mills. The appellants challenged the orders of their dismissal before the learned Labour Court which has dismissed their grievance petitions on the ground that although the incident in question, which forms the basis of the dismissal orders of the appellants, may have taken place outside the Mills' premises and after the working hours since it was in connection with the affairs of the mills . it constituted an act subversive of discipline. 1n coming to this conclusion, the learned Labour Court relied upon the decisions of this Tribunal in the cases of Mohammad Kabir v. Pakistan Tourism Develop ment Corporation (1978 P L C 493), Gharo Textile Mills Ltd. v. Muhammad Sultan (1980 P L C 999).

2. Mr. S. M. Kohistani, the learned Representative for the appel lants, has assailed the impugned decision of the learned Labour Court on the grounds‑

(i) that since the incident in question occurred after duty hours and outside the mills premises, therefore, the act alleged against the appellants does not constitute misconduct for the purposes of Standing Order 15 ; and

(ii) that in any case the allegations against the appellants are false and are not supported by any tangible evidence.

3. Now as regards the first contention of Mr. Kohistani, although ad mittedly the incident occurred after the duty hours at the respondent Mills and the close of the night shift and also outside the Mills premises, yet it is clear not only from the evidence given by Supervisor Mohammad Younus in the domestic enquiry but also from the report filed by him at the Quaidabad Police Station about an hour after the incident, that the assault on him was in connection with the termination of services of probationer Mohammad Khan, against whom he had made a report that his work was not satisfactory. In the case of Gharo Textile Mills Ltd., this Tribunal while holding that the condition of "during working hours on the establishment" are not applicable to acts subversive of discipline observed as follows :‑

A bare perusal of the above clause makes it abundantly clear that the condition of during working hours on the establishment' is applicable only to riotous of disorderly behaviour but not to an act subversive of discipline. An act may be subversive of discip line as will be presently shown, even though it may not have been committed during office hours or on the establishment. It would not be reasonable interpretation of the law or in harmony with the object of the Statute to exclude such acts from the pale of misconduct for the purposes of taking disciplinary action under sub‑clause (h). It was held by this Tribunal in the case of Ahmad v. Bawani Violin Textile Mills Ltd. that the word or' appearing in Standing Order 15(3)(h) is not conjunctive but disjunctive and if a workman commits any act which is subversive of discipline, it is sufficient to bring his conduct within the said Standing Order, whether or not it is committed during working hours or at the establishment. A similar view has been taken by the Labour Appellate Tribunal in the case of Muhammad Kabir v, Pakistan Tourist Development Corporation,"

I am, therefore, of the view that there is no substance in the first contention raised by Mr. Kohistani.

4. The second contention of Mr. Kohistani is properly founded on the fact that admittedly there was no witness to the incident excepting the complainant, Mohammad Yonus. Merely because no other person witnessed the incident does not make the allegation either untrue or even' unproved. Apart from the fact that Supervisor Mohammad Yonus had no reason to falsely implicate the appellants there are two strong circumstances which support his testimony. The first is the report which he made to the police which was recorded in the station diary on the very night of the incident at 0115 hours i.e. about an hour after the incident. In that report, Mohammad Yonus has not only mentioned the names of his assailants but also given the cause of the assault on him. The second circumstance supporting the version given by him is the medical certi ficate of the Jinnah Hospital which shows that as many as seven injuries were found on his person. The medical evidence thus lend support to the version of Mohammad Yonus that he was assaulted by as many as three persons.

5. Although the version of .the incident given by Mohammad Yonus before the Enquiry Officer is substantially correct, I am not satisfied that appellant Dilbar Khan took part in the assault on him. In the police report of Mohammad Yonus, which is the earliest version of the incident, names of only appellant Roofi Shah and two others are given and Dilbar Khan's name is conspicuous by its absence. No doubt on the next day of the incident Supervisor Mohammad Yonus had made an applica tion to the S.H.O., Quaidabad Police Station, stating that appellant Dilbar Khan also was one of the persons who had assaulted him, but no reliance can be placed on this subsequent application, as firstly, Mohammad Yonus had in his first report made to the police specifically implicated only appellant Roofi Shah and two other persons, whom he had named, and had not stated that any fourth persons took part in the assault on him and, secondly, the application to the S.H.O. was made much later after he had received treatment at the Jinnah Hospital and had opportunity of meeting other employees of the Mills. It is, there fore, possible that the subsequent implication by Mohammad Yonus of appellant Dilbar Khan may have been at the instance of other employees of the respondent‑Mills. In any case there appears to be no tangible evidence against Dilbar Khan, upon which the dismissal orders in respect of him could be properly founded. Mr. Mohammad Abdul Ghani, the learned counsel for the respondent Mills, sought to argue that since Mohammad Yonus bad no reasons for falsely implicating Dilbar Khan, therefore his evidence against Dilbar ‑Khan should also be believed butt in view of the fact that in his original report to the police he did not,, implicate Dilbar Khan and mentioned that only three persons had as saulted him, whose names he had given, it would not be possible to rely on the subsequent application made by Mohammad Yonus against appel lant Dilbar Khan.

6. For the reasons discussed by me above, I would concur in the decision of the learned Labour Court in respect of Roofi Shah but would accept the appeal of Dilbar Khan, setting aside the decision of the learned Labour Court in respect of him and direct that he be reinstated in service with full back benefits.

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