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(a) Industrial Relations Ordinance (XXIII of 1969)‑---

--‑‑S. 35‑Territorial jurisdiction‑‑Company running factories at different places‑Workman employed for working in one factory -Charge‑sheet, show‑cause notice and appointment of Enquiry Officer and dismissal order passed and reply to grievance notice given by Head Office‑Head Office assuming direct control -Labour Court having territorial jurisdiction over place of Head Office, in circumstances, held, correctly assumed jurisdiction and entertained grievance petition of workman though factory was not within its territorial jurisdiction.

P. I. D. C. v. Khadim Hussain 1980 P I. C 1.012 and Port Qasim Authority v. Ghulam Nabi 1982 P L L 209 ref.

Associated Cement Company v. Their Workmen A 1 R 1960 S C 56 and

Larafat Karim Siddiqi v. National Construction Company Ltd. 1982 P L C 102 ref.

(b) Industrial dispute‑--

--‑‑Domestic enquiry‑Malice‑Bias‑Easy to allege‑Not to be ‑:k readily inferred as assumed‑Must be established‑Bias or prejudice disqualifying a judge from trying a matter would be a condition of mind which sways his judgment and renders him unable to exercise his functions impartially‑No such condition of mind of Enquiry Officer observable‑Allegation of bias and prejudice‑Not accepted.

Mohammad Humayoon for Appellant.

M. L. Shahani for Respondents.

Date of hearing ‑ 19th August, 1982.

These 2 appeals by Messrs Sandoz (Pak.) Ltd., are both directed against the decision of the learned IVth Labour Court, given on 18th April, 1982, allowing the grievance petition filed by the 2 respondents against the orders of their dismissal from service and directing the appel lant company to re‑instate them in service with full back benefits within a period of 10 days. Separate appeals have been filed as there are 2 respondents and each appeal is in respect of one respondent.

2. The history of the case against the respondents is unfortunately long and tortuous. It appears that in consequence of certain happenings which took place in the factory of the appellant company located at Lyari the 2 respondents were charged with inciting workers to go on strike and raising of slogans and using abusive language towards the manage ment and the officers of the company. The strike is said to have been organized on account of the resentment of certain workers to the manage ment's action in transferring an officer, Mr. Alim, from their Lyari Factory to the Jamahoro Factory. Separate domestic enquiries, based upon the charge‑sheets served upon them were held against the 2 respon dents and certain other workers, and on the basis of the findings given in the domestic enquiries both the respondents were dismissed from service by similar orders, dated, 26th July, 1977. Both the appellants preferred grievance petition against the orders of their dismissal from service. The learned Vth Labour Court, which heard and decided the 2 grievance petitions, by its decision, dated 1st September, 1979, allowed the grievance petitions of the 2 respondents and set aside the orders of their dismissal on the ground that the charge‑sheets issued to them were vague and defective, but at the same time allowed the appellant company to hold a fresh domestic enquiry against them. The claim bf the respondents to back benefits was made to depend upon the decision of the enquiry. Both the respondents as well as the appellant company filed appeals against said decision to this Tribunal. By its order, dated 1st October, 1979, this Tribunal set aside the decision of the learned Vth Labour Court, hold ing that the charge‑sheets served upon the respondents were in accordance with the provisions of clause (4) of Standing Order 15, and on that view of the matter remanded the case to the learned Labour Court for decision on merits. On remand, the learned Ist Labour Court, to which the matter had been transferred, dismissed the grievance petition of the 2 respondents on merits, while it allowed the grievance petition of another workman whose grievance petition was heard along with the grievance petitions of the 2 respondents. Against the said decision of the learned Labour Court, which was given on 13th April, 1980, an appeal was preferred to this Tribunal. By its orders, dated 17th August, 1980, this Tribunal took the view that the domestic enquiry held in respect of the 2 respondents was not fairly and impartially conducted and on this view of the matter, it set aside both the decisions of the learned Labour Court as well as the orders of dismissal from service of the 2 respondents, but at the same time gave an option to the appellant company to hold a fresh enquiry against them on the same charges by a different enquiry officer. The enquiry was to be held within 2 months of the said order, failing which the respondents were to be entitled to back benefits. As a result of the said order, separate enquiries were held by the appellant company against the 2 respondents: The enquiry against respondent Saeed Butt was commenced on 2nd September, 1980 and was concluded on 29th September, 1980, while the domestic enquiry against respondent Bashir Ahmad was commenced on 3rd September, 1980, and was con cluded on 1st October, 1980. The 2 respondents were assisted in the domestic enquiry by Mr. M. A.. Usmani, the General Secretary of the workers' union in the appellant company. However, it may be mentioned that respondent Saeed Butt participated in the enquiry proceedings till 27th September, 1980 whereafter, he is said to have boycotted the same. So far as Bashir Ahmed is concerned, he participated in the en quiry proceedings till 28th September, 1980, whereafter he claims to have left for Isis native town, Dina, in District Jhelum on account of illness of his wife. In both the enquiry proceedings, the following witnesses were examined on behalf‑of the appellant company, but no de fence was led :‑‑

(i) Doctor S. A. O. Shah, Factory Manager ; (ii) Raza Khan, Security Supervisor ;

(iii) Moin Ahmed Khan, Junior Officer ;

(iv) Zaheer Ahmed, Packing Supervisor

(v) Anwar Khan, Warehouse Incharge ; and

(vi) Abdullah Storeman.

3. On the basis of the statements of aforesaid witnesses the enquiry officer gave the finding that the charges against both the respondents have been established. Accordingly second show‑cause notices were issued against both the respondents to which .they submitted detailed replies. As the explanations of the respondents did not find favour with the appellant company, both the respondents were once more served with orders of dismissal from services, dated 13th October, 1980.

4. Both the respondents once more challenged the orders of their dismissal before the learned Vth Labour Court through separate grievance petitions, which were subsequently transferred for disposal to the learned IVth Labour Court. The appellant company resisted the grievance petition of the respondents both on the ground of want of jurisdiction as well as on merits. The learned Labour Court, however, repelled both the contentions of the appellant company and by its decision, which is subject‑matter of these appeals, directed the appellant‑company to re instate in service the 2 respondents with full back benefits. This direc tion of the learned Labour Court is based on the view taken by it that the domestic enquiries against the 2 respondents were not fairly or im partially conducted and the respondents were not given adequate oppor tunity of defence.

5. I have heard Mr. Muhammad Humayun, who appeared for the appellant company, and Mr. M. R. Shahani, the learned counsel for the 2 respondents. The first ground on which Mr. Humayun assailed the impugned decision of the learned Labour Court was that the learned Vth Labour Court, before which the respondents had preferred their grievance petitions, had no jurisdiction to entertain the same. It was submitted by the learned Labour Court that ,both the respondents are employees in the Lyari Factory of the appellant company and that this factory does not fall within the territorial jurisdiction of the learned Vth Labour Court. In support of this contention, the learned counsel relied upon the follow ing pieces of evidence :‑

(i) Letters of appointment in respect of respondent Saeed Butt and Bashir Ahmed at pages 169 171 and 1471149 respectively in the record of the learned Labour Court.

(ii) Letter of respondent Saeed Butt, dated 27th September, 1980, at pages 69/71 in the record of the learned Labour Court, wherein he was given his designation as 'Machine Operator, Lyari Factory" .

(iii) Letters at pages 173 to 187 of the record of the learned Labour Court, addressed to respondent Saeed Butt, wherein his address has been shown as Helper/Operator at the Lyari Factory of the appellant‑company.

(iv) Letters at pages 335 and 337 of the record of the case of Respon dent Bashir Ahmed, indicating his employment at the appellant's factory located at Lyari.

(v) Admission of the 2 respondents in their cross‑examination be fore the learned Labour Court that they were employed in the appellant company's factory at Chakiwara.

6. Mr. Humayun also cited the cases of P. 1. D. C. v. Khadim Hussain (1980 P L C 1012) and Port Qasim Authority v. Ghulam Nabi (1982 P L C 209) and the un reported decision of this Tribunal in the case of Muhammad Hanif v. Shahnawaz Limited. (Appeal No. KAR‑859/80, decided ,on 4th January 1981).

7. On the other hand, Mr. Shahani for the 2 respondents strongly supported the findings of the learned Labour Court that the 2 respondents had rightly filed their grievance petitions before the learned Labour Court No. V, within the territorial jurisdiction whereof the Head Office of 'the appellant company was located, as at the relevant time it was the Head Office which was exercising complete control over them. Mr. Shahani sought support for his contention from the following circumstances :‑

(i) Letters of re‑instatement in service in consequence of the orders of this Tribunal, dated 18th August, 1980, at pages 189 and 339 respectively in the record of the learned Labour Court, which were issued by the Head Office of the appellant company.

(ii) Evidence of Mr. A. G. Shaikh, Personnel Manager in the appellant company admitting that the charge‑sheets against the respondents; the directions before the holding of the enquiry against them, the appointment of the Enquiry Officer, the second show‑cause notices against the respondents and orders of their dismissal were all issued by and from the Head Office.

It was further submitted by Mr. Shahani that even the grievance notice was given by the respondents to the Head Office, which took no objec tions to the same instead gave a reply to the respondents rejecting the same. In support of his contention that where the Head Office exercises effective control over the employees, it is the location of the Head Office which determines the jurisdiction of the Court before which a grievance peti tion can be filed, Mr. Shahani relied upon the decision in the cases of Associated Cement Company v. Their Workmen (A I R 1960 S C 56) and Latafat Karim' Siddiqi v. National Construction Company Ltd. (1982 P L C 102).

8. No doubt as contended by Mr. Humayun, both the respondents were employed .for and working in the Lyari Factory of the appellant company, but the position appears to have radically been altered by the appellant company's letters, dated 18th'August, 1980, separately addressed to the respondents. The opening paragraph in both these letters, which is identical, reads as follows : ‑

"We refer to the Order dated 17th August, 1980 passed by the Honourable Sind Labour Appellate Tribunal in the matter of your Appeal No. KAR‑290/80 and wish to inform you that effective 17th August 1980, you have been put' back in our employment. You are further informed that w. e. f. 17th August, 1980, you have been granted special leave with full pay and as such, you are not required to attend to your duty, till further intimation."

It would appear from the. above 2 letters that though both the 2 respon dents had been put back in employment, they were to be treated as on special leave and were not required to attend to their duties at their Lyari Factory. It would thus appear that the Head Office was directly dealing with the 2 respondents and assuming control over theta, by passing the Lyari Factory. This assumption gains considerable support from the further conduct of the Head Office in issuing charge-sheets to the 2 respon dents, considering their explanations to the charge‑sheets, appointing the Enquiry Officer, dealing with the objections to the Enquiry Officer by the 2 respondents, issuing second show‑cause notices to the respondents, issuing orders of their dismissal and finally making replies to the grievance notices of the respondents, without raising any objection that their, em ployer was the factory manager and not the Head Office. The conduct of the Head Office thus clearly indicates that it had assumed all the functions and powers of the employer in respect of the 2 respondents. I am, therefore, inclined to the view that the Vth Labour Court had jurisdiction in respect of the grievance petitions filed by the 2 respondents as it had territorial jurisdiction over the place where the Head Office of the appellant company was located. Another circumstance which supports the view that I have taken is that employer" for the purposes of the Industrial Relations Ordinance, in relation to an establishment not run by the Government or local authority, includes the proprietor of the establishment which is the instant case would be the appellant company, and every Director, Manager, Secretary, Agent or Officer or person con cerned with the management thereof.

9. In the case of Associated Cement Company from the Indian jurisdiction, it was held that cement factory and lime stone quarry nearby under the same management were one establishment. This finding was given on the basis of the view taken by the Indian Supreme Court that the factory and the lime stone quarry were one integrated whole. The circumstances in the instant case are somewhat different as the company had two factories and each factory appears to be a separate establishment. The Indian Supreme Court, in the reported case, was careful to point out that each case would depend upon its own facts. Perhaps the more relevant case would be the case of Latafat Karim Siddiqi, decided by this Tribunal. That was a case of a company with headquarters at Karachi but with construction projects all over the country. It was found that the petitioners' appointment order and all material orders, including the order of his termination from service, had been issued from the com pany's headquarters at Karachi, which controlled the different projects of the company. It was held that the Labour Courts at Karachi bad jurisdiction over the case of the petitioner in the circumstances of the case. ‑This decision appears to support the view that I have taken in this case.

10. Mr. Muhammad Humayun next argued on the merits of the case and contended that separate enquiries, which were fairly and im partially conducted, were held in respect of each of the 2 respondents and in those enquiries the misconduct of the 2 respondents was fully estab lished. On the other hand, it was strongly urged by Mr. Shahani that neither fair nor impartial enquiries were held, that the enquiry officer was highly prejudiced against the 2 respondents, being an associate and close friend of the principal witness against the 2 respondents. Dr. Shah, and that the respondents were denied the basic right of defence.

11. I will examine the contending contentions of the 2 learned counsel separately in respect of the 2 respondents. I will first take up the case of Saeed Butt mainly.

12. In order to show that the enquiry officer was a friend of Dr. Shah and in consequence thereof was hostile to and biased against the respondents, Mr. Shahani referred to pages 8 and 9 of the enquiry proceedings against respondent Saeed Butt. At those pages, which are a part of the lengthy cross‑examination of Dr. Shah, the latter admitted that in 1971, for a period of one year, he was occupying a room in a flat in which the enquiry officer, Mr. Feroz, was also putting up and that during the past 7 years on one occasion only the enquiry officer had visited his house with his family in order to congratulate him on his marriage and he likewise had visited the house of the enquiry officer with family on one occasion only. These 2 circumstances, to my mind, do not establish any special friendship or attachment between Dr. Shah and the enquiry officer, other than what would normally be between two officers serving in the same company, nor any prejudice on the part of the enquiry which would disentitle him from. holding these enquiries against the 2 respondents.

13. Mr. Shahani was however, at pains to show that on account of his friendship and association with Dr. Shah, the enquiry officer allied himself with the complainant party against the respondents and not only disallowed legitimate questions which were put .by the 2 respondents but also abruptly closed the cross‑examination of Dr. Shah, although the 2 respondents still had certain questions to put to Dr. Shah. It may b.‑ pointed out that the enquiry officer was careful to record, in question and answer form, the questions put to Dr. Shah, both by him as well as the respondents. I find that the cross‑examination of Dr. ‑ Shah covers as many as 44 pages in the case of Saeed Butt and 42 pages in the case of Bashir Ahmed. Some of the ques tion, which were put to Dr. Shah by the 2 respondents were not only irrelevant but appear to be highly objectionable. One such question which was put to Dr. Shah was whether he was a Muslim. Another question put to him was whether he was aware before giving evidence in Courts, witnesses take oaths and whether he had objected to the en quiry officer not administering oath to him. Mr. Shahani was unable to bring to my notice any relevant question which had been disallowed by the Enquiry Officer. It is obvious that in the course of such a lengthy cross -examination, covering several pages, some questions would be disallowed by the enquiry officer.

14. As regards the contention of Mr. Shahani that the cross‑exa mination of Dr. Shah was abruptly closed and further questions were not allowed by the Enquiry Officer to be put to Dr. Shah I may refer to the last line at page 79 of the enquiry proceedings in respect of respon dent Saeed Butt, wherein it is clearly stated that Saeed Butt had stated that had he no more questions to put to Dr. Shah and hence the cross- examination of the witness was being closed. I see no reason to dis believe this statement in the enquiry proceedings. No doubt this page of the enquiry proceedings has not been signed by respondent Saeed Butt or the worker assisting him and in fact Saeed Butt had declined to cross -examination the next witness, Raza Khan, on the ground that he had still to put some questions to Dr. Shah, but the Enquiry Officer was fair enough to note down both these facts in the enquiry proceedings, thereby sug gesting that the note of Enquiry Officer at page 49 of the enquiry proceed ings in respect of Saeed Butt that he had no other question to put to Dr. Shah was also correct and this respondent's objection to the cross- examination of the next witness, Raza Khan, was an afterthought. There is no indication what questions respondent Saeed Butt still wanted to put to Dr. Shah: Mr. Shahani was unable to enlighten this Tribunal on this point. I have examined with some care the enquiry proceedings my self and have reached the conclusion that not only the enquiry pro ceedings were recorded in detail and with meticulous care, but further that the Enquiry Officer showed extraordinary patience and granted a good deal of indulgence to the 2 respondents in their marathon cross -examination of Dr. Shah, spread over several days. I am, therefore, unable to discern any such misconduct, bias or prejudice on the part of the l8nquiry Officer in conducting the enquiry proceedings against the 2 respondents, which would invalidate the same. It may be pointed out that even in the case of a Judge, bias or prejudice, which would dis qualify him from trying a matter would be a condition of mind which sways his judgment and renders him unable to exercise his function im partially in a particular case. No such condition of mind of the Enquiry Officer is observable in the instant case. As observed by the Supreme Court, it is easy to allege malice but malice is not to be readily inferred or assumed and if malice is to render an action invalid, it must be established. The same rule would presumably be applicable in the case of allegation of bias.

15. Dr. Shah was not the only witness who was examined in the enquiry proceedings against the 2 respondents. Five other witnesses were examined but none of them were cross‑examined. They were not cross‑examined and no defence was led as Saeed Butt boycotted the en quiry proceedings after the examination of Raza Khan on 27th September, 1980, while Bashir Ahmed failed to attend the enquiry proceedings after 28th September, 1980, on the ground that he had to leave for his native place, Dina, on account of having received a telegram, regarding the serious illness of his wife.

16. Although I am of the view that respondent Saeed Butt had himself stated on 27th September, 1980 that he had no other questions to put to Dr. Shah, as noted by the enquiry officer at page 49 of the enquiry proceedings, but even if he wanted to put some further questions to Dr. Shah and they were disallowed by the enquiry officer, that did not entitle Saeed Butt to boycott the enquiry proceedings. This Tribunal, by its order, dated 18th August, 1980, had directed that the enquiry was to be held within 2 months from the date of the order. It was under these circumstances that the enquiry proceedings were commenced im mediately after the announcement of the said orders and were being ex peditiously completed. On the other hand, the conduct of respondent Saeed Butt as also of respondent Bashir Ahmed appears to have been to prolong the same as much as possible.

17. Mr. Shahani also relied upon the typed letter, dated 27th September, 1980, sent by Sacred Butt to the Enquiry Officer, complaining of the prejudicial attitude of the Enquiry Officer, particularly his friendship with Dr. Shah and refusal to permit him to further cross‑examined Dr. Shah. I have already dealt with these objections and have held that they are without material substance. It is alleged in the said letter that in the enquiry proceedings held on 27th September, 1980, Saeed Butt had put only one or two questions when the remaining questions were dis allowed and the cross‑examination was closed. I find that even on 27th September, 1980, Saeed Butt had put 5 questions to Dr. Shah, the re levancy whereof is not quite clear. I am; therefore, of the view that the domestic enquiry against Saeed Butt was fairly conducted and he was given ample opportunity of defence.

18. The case of respondent Bashir Ahmed, however, appears to be materially different from that of respondent Saeed Butt. It is an admitted position that on 29th September, 1980 he had submitted an application to the management of the appellant company requesting for grant of 15 days leave to him on the ground that he had received telegraphic intimation that his wife was seriously ill at his native place, Dina. The telegram received by him from Dina was appended to this application. No doubt, the appellant company on the same day is said to have telegraphically informed respondent Bashir Ahmed that his re quest for leave could not be granted in view of the fact that the enquiry proceedings had to be completed within 2 months, but there is no evi dence to indicate that this telegram in fact was received by respondent, Bashir Ahmed, who in his application for leave had specifically stated that he was leaving on that day for his native place. Moreover, the management anti dated the enquiry proceedings, which were to be held on 2nd September,1980 to 30th October, 1980, vide telegram, which is said to have been sent to the said respondent on 29th September, 1980 at 4.40 p. m. Again, there is no evidence when the telegram was actually despatched and whether it was received by respondent Bashir Ahmed. I am, therefore, inclined to the view that not only the enquiry proceedings were antidated but they were concluded on 1st October, 1980, even before 2nd October, 1980, the previously fixed date for the enquiry proceedings, without due notice to this respondent. The enquiry proceed ings held behind the back of Bashir Ahmed, thus, cannot be taken into, consideration against him. As the Enquiry Officer and the appellant com pany have relied upon not only the evidence of Dr. Shah, whose cross-examination by respondent Bashir Ahmed had admittedly not yet been concluded, but also upon the evidence of five other witnesses, who were examined at the back of Bashir Ahmed I am of the view that the orders of dismissal in respect of Bashir Ahmed suffer from serious infirmity. I would, therefore, agree with the findings of the learned Labour Court to the extent that these orders should be set aside. However, since it was respondent Bashir Ahmed who himself left for his native town, though possibly for good and valid reasons, I would at the same time given an option to, the appellant company to continue with the enquiry from the stage when the respondent left for his native town on 29th September, 1980. The payment of back benefits to this respondent would depend upon the result as the enquiry. Mr. Shahani requested that there should be a change in the Enquiry Officer. His request is valid as the previous Enquiry Officer had given a finding against the respondent also. The appellant company, therefore, should appoint another Enquiry Officer un connected with the proceedings against this respondent.

19. As regards respondent Saeed Butt, there is overwhelming evi dence in the enquiry proceedings to establish his guilt. I have already pointed out that his conduct in boycotting the enquiry after he had cross‑examined Dr. Shah at a considerable length for a number of days was unjustified. I would accordingly accept the appeal of the com pany in respect of this respondent and would set aside the order of the learned Labour Court re‑instating him in service and awarding him back benefits.

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