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Appeal No. LHR-1070 of 1978, decided on 29th February, 1984.

-"Domestic enquiry-Cross-examination of witnesses-Questions to defence witnesses by Enquiry Officer about their names and particulars-Does not amount to cross-examination-Examination of witness in question answer form-Does not vitiate findings of enquiry.

1982 P L C 916 ref.

--- S.O. 15 (3) read with Factories Act (XXV of 1934), S. 46-A "Misconduct '-Employer can take overtime work by force against overtime wages payment - Workers asked to work on rest day against payment of overtime wages-Inciting workers not to work on such day, held, amounted to misconduct.

Khan A. Hamid for Appellant.

A. A. Sharif for Respondent.

Date of hearing : 26th February; 1984.

The appeal captioned above arises from the decision, dated 21st October, 1968 passed by-the learned Presiding Officer, Punjab Labour Court No. 1, Lahore dismissing the grievance petition of the appellant for his re instatement in service.

2. The allegations for which the appellant was dismissed from service were that he pad instigated the workers not to work on 31^st July, 1976 which being Saturday was a rest day and doing acts of willful insubordination. The charge-sheet is Exh. D.3 and its reply is Exh. P-16.

3. It has been argued by the learned counsel for the appellant that the date of the report of Sultan Muhammad, Gunman was changed from 3rd August, 1976 to 31st July, 1976 by overwriting. The overwriting, no doubt, is visible but the same is not material as in the body of the report the date of the incident is 31st July, 1976 and is intact. If the report was made by the Gunman on third day, it was immaterial. There is no evidence if this inter polation was made at the instance of the respondent. The other point argued is that punching card Exh. P-19 the time of entry was in blue colour since it was Friday, but after erasing it the time was printed in red colour. I have carefully and minutely examined the said entry with the help of magnifying glass but have failed to detect any erasure. By erasing rubbing marks become visible which are not present. So I do not agree with the learned counsel that any interpolation with exit entry in the punching card Exh. 19 was made. According to the allegations levelled against the appellant there was no need for the respondent to make, any interpola tion in the punch-card. It is alleged that the time of the departure of the appellant was changed in order to show that he was present in laboratory for making a speech. According to the charge-sheet, the appellant held a meeting during working hours but the time of departure given is 16.14 hours. It has also been argued that Rashid (P.W.) admitted in the enquiry that there was party faction, therefore, he submitted application Exh. 9. This is true but Rashid did not say that application Exh. 9 was false. He may be meaning to say that since there was party faction, therefore, he brought the acts done by the appellant to the notice of the management by making application Exh. 9. If there had not been party faction, he may have connived over the matter. Regarding the evidence of Makhan, it has been argued that in his application Exh. 15 appearing on page 17 he said that the appellant had come to his house for asking him not to work on 31st July, 1976 but in his statement he said that the appellant had not come to his house and had stopped him at the gate. Makhan name not only the appellant but other also in his application Exh. 15. In his statement at page 113 of the enquiry file, he named others and said that they had come to his house for asking him not to go on duty. Regarding the appellant he said that he had not come to his house but had stopped him at the gate. In the application Exh. P. 15 he may have by mistake added the name of the appellant. If he had been confronted with his application Exh. 15, he may have satisfactorily explained the discrepancy.

4. The other point raised by the learned counsel for the appellant is that the enquiry officer had cross-examined the defence witnesses so he acted as a prosecutor. He has cited 1982 P L C 916. He has made reference to page 15 of the enquiry. The enquiry officer did put some questions to the defence witnesses but did not cross-examine them. He enquired the names and particulars and administered oath and asked to give his statement. This is not cross-examination. It has also been argued that the witnesses were examined in question-answer form, This is true but such a practice does not vitiate the enquiry and the finding. By recording the questions no ille gality is committed. My attention has been drawn to the statement of Jan e-Alam (D.W.) He said that on 31st July, 1976 mother of the appellant fell ill and he (the appellant) had taken her to the hospital where they remained upto 1.00 P.M. No bed-head ticket or prescription was produced in support of this contention, so the evidence of this witness was rightly dis carded. It has been further argued that the evidence against the appellant is that he had been alighting the workers from the buses of the respondent but according to the evidence, it had heavily rained on 31st July, 1976. It may have rained but heavy traffic does function in rains. However, cars may not come on roads if sufficient rain-water has covered the roads.

5. The other point that needs discussion is that it has been argued that 31st July, 1976 being rest day, no question of strike arises. According to the evidence, the respondent had affixed notice on the notice board on 29th July, 1976 asking the workers of certain categories to work on the said date.

In reality the production workers had to work by way of giving overtime. Nasir Sheikh (P.W.) said on the question of the appellant that the production workers were called to give overtime. The: said witness also said that before 31st July, 1976 the workers used to give overtime on payment on Saturdays. Notice Exh. 20 was issued to give overtime on 5th June, 1976 which was a Saturday. Exh. 21 shows that overtime was taken against payment of overtime wages. So the workers know that they had been called to give overtime on Saturday on 31st July, 1976 against payment of overtime wages. According to section 46-A of the Factories Act, employer can take overtime by force against payment of overtime wages. So the appellant prevented the workers to give overtime and thus committed misconduct. In cross-examina tion, it was suggested to Makhan (P.W.) that he belong to Muhammad Ali group and that the appellant belonged to Sikandar group but this is very strange that at one time in the enquiry the appellant had nominated Muhammad Ali as his Assistant in the enquiry. There was no cause for the respondent to lay false charges against the appellant and to dismiss him without any ground.

6. So far as enquiry proceedings are concerned, they are quite in order. No lack of confidence, was shown, against the enquiry officer. By the evidence of the charges stood duly established and the appellant was rightly punished.

7. As a result, the appeal having no force is disallowed.

A. E.

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