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Appeal No. KAR‑384 of 1982, decided on 18th November, 1982.

Industrial Relations Ordinance (XXIII of 1969)‑

-‑‑Ss. 25‑A & 38‑Grievance petition against dismissal on account of misconduct‑Domestic. enquiry held ex parte ‑Petitioner claiming for being not allowed to participate‑Decision depending upon some documents marked with thumb‑impression of a co‑worker‑ Opinion. of finger‑print expert found necessary‑Order of Labour Court dismissing grievance petition without obtaining opinion of finger‑print expert, in circumstances, set aside by Appellate Tribunal and case remanded for decision afresh after obtaining such opinion.

Nameed M. Siddiqui for Appellant.

Mahmood Abdul Ghani for Respondents.

Date of hearing : 18th November, 1982.

DECISION

This appeal is directed against the decision of the learned Fourth Labour Court, given on 15th August, 1982, dismissing the grievance peti tion of the appellant workman challenging his dismissal from service.

2. The appellant, who was employed in the respondent‑Company as a helper in the Poly Department, was charge‑sheeted on 4th April, 1981, for allegedly refusing to perform his duty and further refusing to comply with a lawful order of his superior. He was ultimately dismissed from service on the aforesaid charge. by order, dated 6th May, 1981, after an enquiry which was 'admittedly held ex parte. The appellant challenged the orders of his dismissal through a grievance petition filed before the learned Labour Court in which he inter alia alleged that though he had gone on two occasions, i. e. on 21st April, 1981 and 29th April, 1981 to attend the enquiry proceedings, he was not allowed to enter the factory and in fact was told on the litter occasion by the Enquiry Officer that the enquiry had been completed and he had been dismissed from service. On the other hand, it was claimed by the respondent‑Company that the appellant had adopted dilatory tactics and when these failed to achieve their object he deliberately avoided to participate in the enquiry proceedings either on 21st April, 1981 or 29th April, 1981 and hence the enquiry was held ex parte on the latter date. In support of his contention that he was not allowed to participate in the enquiry proceedings the appellant examined two co‑workers, Sultan and Bashir Ahmed, who supported the appellant's version that on 29th April, 1981 the appellant had come to the factory for attending the enquiry but was not allowed to enter the factory to participate in the enquiry. The learned Labour Court was not impressed with the evidence of those two witnesses nor with the complaint which appears to have been made by the appellant to the management on 21st April, 1981, or the grievance notice of the appellant, dated 29th April, 1981, complain ing that he was not allowed to enter the factory for the purpose of parti cipating in the enquiry proceedings on 21st April, 1981 and 29th April, 1981, respectively. The learned Labour Court further was of the view that the charge against the appellant had been duly established. It, accordingly, dismissed the appellant's grievance petition.

3. It may be pointed out that during the cross‑examination of witness, Bashir Ahmad, he was shown a statement, dated 4th April, 1981, in regard to the appellant's refusal to perform his duties and refusal to obey the orders of his superior, which statement is claimed by the management to have been signed by two workers and thumb‑marked by worker Bashir Ahmed but Bashir Ahmed denied that the thumb‑mark on the said document was his. An application was. accordingly made by the learned counsel for the company to send the said document for comparison to the expert. Un fortunately, in the application it was prayed that the L. T. I. on the afore said document should be sent for comparison alongwith the signatures of witness Bashir Ahmed ' and further the document in question be sent to the handwriting expert. when in fact comparison of thumb‑impressions can only be made by the finger‑print expert and not by the hand‑writing expert. It appears that the learned Labour Court not only failed to realise that what was required to be compared was the thumb‑impression on the disputed document but that further this could only be done by the finger‑print expert and under this misconception passed orders to the effect that the signatures of witness Bashir Ahmed should be taken in Court which would be com pared by the Court itself. Since witness Bashir Ahmed is apparently illiterate and could only affix his L. T. I. instead of signatures, no further action on the application of the learned Advocate of the company was taken. The evidence of witness Bashir Ahmed is most material not only on the point whether the appellant was or was not permitted to enter the factory on 29th April, 1981 for the purposes of participating in the enquiry but also on the issue whether on 4th April, 1981 the appellant had refused to per form his duties and further had refused to carry out the orders of his superiors. If the thumb‑impression on the disputed document is not of witness Bashir Ahmed, an inference could possibly be drawn that the dis puted document is a false document and this in turn could react on the evidence of other witnesses on the charge against the appellant. On the other hand, if it is established that the thumb‑impression on the disputed document is of witness Bashir Ahmed, this evidence would contradict the witness on an important issue and his evidence will then have to be weighed in the light of the false denial made by him. The learned counsel for both the parties fairly conceded that in the circumstances the comparison of thumb‑impression on the disputed document, which is at page 89 of the record of the learned Labour Court, with the admitted thumb‑impression of witness Bashir Ahmed is of vital importance and would materially assist the Court in coming to a correct assessment of the evidence of Bashir Ahmed and consequently on the two issues involved in the case, firstly, whether the appellant was not allowed to participate in the enquiry by the management and secondly whether the charge against the appellant was established.

4. 1 would, therefore, remand the case to the learned Labour Court. after setting aside the impugned decision, with the direction that the learned Labour Court should send the disputed document at page 89 of the record of the learned Labour Court to the finger‑print expert for comparison of the thumb‑impression thereon with the admitted thumb‑impression of wit ness Bashir Ahmed, which could be taken in the Court by summoning Bashir Ahmed for this purpose. If the learned Labour Court considers it necessary; the thumb‑impressions in Court be taken with the assistance of the finger‑print expert. In case witness Bashir Ahmed becomes unavailable or his attendance cannot be secured for any reason, L.T.I. on the disputed document may be sent for comparison with the L,T.I. on the affidavit of witness Bashir Ahmed at page 85 of the record of the learned Labour Court. Mr. Mahmood Abdul Ghani, the learned counsel for the respondent‑Com pany undertakes to deposit before the learned Labour Court the amount of fees of the finger‑print expert. The learned Labour Court after taking further evidence in this case on the point of the thumb‑impression on the disputed document should record a fresh finding on the points involved.

Case remanded,

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