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Appeal No. KAR‑107 of 1983, decided on 15th November, 1983.

‑‑Domestic enquiry‑Accused remaining absent without intimation or any sufficient cause on date fixed for enquiry proceedings‑Finding out next date‑Duty of accused.

--Domestic enquiry‑Principles and standard of appreciation of evidence and quantum of proof‑Required for domestic enquiry not same as in criminal prosecution or civil litigation.

‑‑Ss. 25‑A & 38 (3)‑Scope of S. 25‑A (5)‑Contemplates judicial determination of allegations with regard to alleged misconduct‑‑‑Does not contemplate in domestic enquiry applicability of same standard and principles of appreciation of evidence and quantum of proof as required in criminal prosecution or civil litigation‑Evidence of prosecution witnesses in domestic enquiry and Labour Court unrebutted‑Accused (workman) adopting, evasive attitude‑No bias suggested‑Conclusion arrived at by Enquiry Officer and Labour Court regarding charge of alleged misconduct against accused, in circumstances, upheld by Appellate Tribunal.

Muhammad Baig v. Mirpurkhas Sugar Mills 1980 P L C 178 rel.

‑‑S. O. 15 (4)‑Representation of accused by Advocate‑Refusal of‑Not exceptionable.

Muhammad Saeed Ahmed Khan and 2 others 4. Secretary to Govern ment of the Punjab, Housing and Physical Planning Department and 3 others P L D 1983 Lah. 206 held not applicable.

Shafique Qureshi for Appellant.

Riaz Hussain Baloch for Respondents.

Date of hearing : 9th August, 1983.

This appeal is directed against the order, dated 27th February, 1983 passed by the Sind Labour Court No. III, Karachi, dismissing the applica tion of the appellant filed under section 25‑A, I. R. O., 1969.

2. The, facts leading up to this appeal briefly stated are that the appellant was a permanent workman, working as a weaver since 20^th November, 1978, with the respondent establishment. He was transferred from Group No. II to Group No. I. He appeared on 7th December, 1981 and insisted on Mr. Abdul Razzaq, the Shift Incharge of Group No. I to recommend his leave for 2 days of absence from Group No. II. Mr. Abdul Razzaq told him that since be had absented from Group No. 11 he would first consult the Shift Incharge of Group No. II and then recommend his leave. Thereupon the appellant lost his temper, assaulted Mr. Abdul Razzaq, held him by his chin and gave him a push. He further threatened to finish him up outside the premises after 3.00 p. m. Abdul Mateen another Shift Incharge standing nearby intervened and rescued Abdul Razzaq. Abdul Razzaq then complained to Abdul Sattar, Deputy Weaving Master and narrated the entire incident to him the very same day. The appellant was issued a show‑cause notice and charge‑sheet, dated 7th December, 1981, for the misconduct allegedly committed within the meaning of Standing Order 15 (3) (a) (h) of the Standing Orders Ordinance, 1968. Mr. Absar Ahmed son of Salimullah, the Labour Welfare Officer of the respondent establish ment was appointed the enquiry officer. He held enquiry and recorded statements of Messrs Abdul Razzaq, Abdul Mateen and Abdul Sattar and that of the appellant himself and found the appellant guilty of misconduct, vide his report, dated 6th February, 1982. Consequently, the appellant was dismissed from service, vide letter, dated 18th March, 1982. The appellant served a grievance notice on the respondent and his grievance having not been redressed, he filed an application under section 25‑A, I. R. O., 1969, in the learned Sind Labour Court.

3. The learned Labour Court recorded the evidence produced by the parties, the appellant examined himself and produced a number of documents. He also examined Muhammad Nazeer, General Secretary of the Union in support of his contentions, whereas the respondent examined the enquiry officer, Mr. Absar Ahmed, who also produced a number of documents in support of the contention raised by the respondent establish ment. The appellant, however, contended that he was neither served with the charge‑sheet nor any enquiry was held or the witnesses examined against him in his presence. The respondent resisted the contentions raised on behalf of the appellant in the lower Court and insisted that a full‑fledged domestic enquiry was held against the appellant and he was found guilty on the basis of the enquiry in spite of his evasive attitude throughout the enquiry proceedings. The learned Labour Court on examining the evidence observed that the appellant throughout his examination in Court went on making evasive replies and his demeanour throughout was so unimpressive that he could not be considered to be a reliable witness and finding that the charge of misconduct was established against him on the basis of the evidence in the enquiry, the papers of which were produced in the Court by the enquiry officer and also on the basis of evidence examined in Court, dismissed his application by the impugned order, dated 27th February, 1983. Aggrieved by this order, the appellant has come up in this appeal.

4. I have carefully persued the evidence examined by the parties in the learned Labour Court and have also heard their learned counsel, Mr. Shafiq Qureshi for appellant and Mr. Riaz Hussain Baloch for the respondent. The contentions raised on behalf of the appellant are two‑fold. Firstly, that the misconduct was not established either on the basis of the evidence that was examined before the enquiry officer or in the proceedings before the learned Labour Court ; and secondly, that the appellant requested the enquiry officer to allow him to be represented by an Advocate in the enquiry and that he should be supplied a list of witnesses but none of his requests were allowed.

5. As regards the first contention, on the basis of the evidence oral as well as documentary that is available on the record, the plea to the effect that he was neither served with the charge‑sheet nor an enquiry was held against him in his presence seems to have no substance. There is no dispute that he was served with the show‑cause notice as well as the charge‑sheet. He has also admitted in his affidavit in evidence that he was present before the enquiry officer on the first date of the enquiry viz., 18th January, 1982. He has also admitted that it was adjourned to 21st January, 1982, and that he was present before the enquiry officer on both these dates, and that subsequently, it was adjourned to 30th January, 1982, on which date the appellant did not attend with the result that the enquiry was adjourned to 2nd February, 1982. It is contended that the appellant on this date, viz 2nd February, 1982, was informed through the Security Guard by a letter but he refused to accept the letter. The letter was also put on the Notice Board of the respondent establishment where the appellant was in attendance to his work and if he had a mind to know the next date of enquiry, as it was his duty to enquire of it as he had remained absent on 30th January, 1982, without any intimation to the enquiry officer or other sufficient cause, he would have come to know the date viz., 2nd February, 1982. In spite of that the letter of intimation of the date viz., 2nd February, 1982, was sent to him by the registered post, A/D, the postal receipts K/1 and K/2 have been produced in the evidence which disclose that he was served with this letter of intimation on 1st February, 1982. It was also for the reason that he was in attendance on 2nd February, 1982, but as an afterthought he put up a plea that he was served with this letter of intimation on 3rd February, 1982 of which he produced no evidence, and, therefore, he could not attend the enquiry on 2nd February, 1982. The evidence of the enquiry officer and the enquiry papers that have been produced, clearly disclose that the appel lant was present on the three dates viz., 18th January, 1982, 21st January, 1982 and 2nd February, 1982, and that the witnesses against him were examined in his presence, Abdul Razzaq and Abdul Mateen were examined on 21st January, 1982, on which date the appellant admits he was present before the enquiry officer and Abdul Sattar was examined on 2nd February, 1982 on which date also according to the enquiry officer he was present having been duly served with the notice of the intimation. In any case, it was his duty to find out the date of hearing as admittedly he had himself remained absent on 30th January, 1982, without any intimation or a sufficient cause. According to the enquiry officer, therefore, all the three witnesses were examined in his presence, but he refused to cross‑examine them and also refused to put his thumb‑marks on such statements and on his such uncompromising attitude, a witness Khanzada was called in and he endorsed on the statement of Abdul Mateen in token of the fact that the appellant had refused to thumb‑mark the statement in his presence. What I have been able to gather from all this evidence on record, that though all the witnesses in the domestic enquiry were examined in the presence of the appellant, he refused either to cross‑examine them or to thumb‑mark their statements in token of having been recorded in his presence. Therefore, conclusion of the learned Labour Court to the effect that the appellant is an unreliable witness in that respect does not seem to be without basis and therefore, no exception can be taken to such conclusion arrived at by the learned Labour Court.

6. So far the evidence in support of charge of misconduct is concerned, Abdul Razzaq, who is Shift Incharge of Group No. I has categorically stated that the appellant lost his temper on his reply that he would confirm from Shift Incharge Group No. II before he could recommend his leave and he held him by his chin and gave him a push, whereupon Abdul Mateen another Shift Incharge who was standing nearby intervened‑ and rescued him. Abdul Matin has also stated that in his presence the appellant held Abdul Razzaq by his chin and gave him a push, whereupon he intervened and rescued him and then he immediately left. Abdul Razzaq reported it to the Deputy Weaving Master, Abdul Sattar who has corroborated his version in that respect in toto. Abdul Razzaq has also stated that the appellant had also threatened him to see him outside and to finish him up at 3.00 p. m. He has been corroborated by Abdul Sattar in that respect, though Abdul Matin has not stated so obviously for the reason that he immediately left after rescuing Abdul Razzaq. There is sufficient evidence in support of the incident of assault committed by the appellant on Abdul Razzaq the Shift Incharge. There is nothing to show that the evidence of the above mentioned witnesses in that respect is unreliable. Nothing has been said by the appellant that any body else was also available there at or nearby the place of the incident and has not been examined in the enquiry. The presence of the above‑mentioned witnesses is also natural as they were concerned with the start of the looms early in the morning and their presence there has not been disputed. Nothing has been said about their being interested against the appellant in any manner. Therefore, their evidence can neither be considered as interested nor unreliable or insufficient. They have not been subjected to any cross‑examination by the appellant deliberately on account of his evasive attitude obviously to see that he takes advantage of the situation to say that no enquiry was held against him in his presence. Since the evidence of the witnesses has gone unchallenged in the above‑mentioned circumstances the allegations contained therein, therefore, are deemed to have been also admitted by the appellant. The appellant has also not been able to rebut it by any evidence whatsoever. It is true that subsection (5) of section 25‑A, I. R. O., 1969, contemplates judicial determination of the allegations with regard to alleged misconduct, but it does not contemplate in the domestic enquiry, the applicability of the) same principles and standard of appreciation of evidence and quantum of proof as is required in Criminal prosecutions or in Civil litigation. Reliance in that respect has also been placed on the decision of this Tribunal in the case of Muhammad Baig v. Mirpurkhas Sugar Mills (1982PLC 178). The result of the enquiry also does not seem to be the result of a bias for a simple reason that the appellant admittedly was neither an office‑bearer of a 'union nor its active member. Accordingly, considering the case of the appellant in the light of the evidence that was produced before the enquiry officer and the learned Labour Court and what has been stated above, I would come to the finding C that the conclusions arrived at by either the enquiry officer or by the learned Labour Court were neither based on insufficient and unreliable evidence nor were a result of bias. Accordingly, I am satisfied that the charge of misconduct has been satisfactorily proved against the appellant, and his contention to the contrary has no force.

7. As regards the second contention, the learned counsel appearing on behalf of the appellant has sought to argue that in spite of the request of the appellant that he should be allowed to be represented by an Advocate in the enquiry proceedings and be supplied with a list of witnesses, his request was not granted. So for the list of witnesses is concerned the appellant was told as I find from the evidence on record that he shall be supplied with the same at the time of the enquiry, but the appellant seems to have not pressed for the same at the time of the enquiry as he was not interested even to cross examine the witnesses. So far the permission to be represented by an Advocate, it was refused on the basis that the Law by virtue of Standing Order 15 (4) of Standing Orders Ordinance, 1968, permitted him only to b represented by a co‑workman employed in that establishment but he refused to avail of much opportunity. The learned counsel appearing on his behalf in support of his contention that he had a right to be represented by an Advocate, relied on the case of Muhammad Saeed Ahmed Khan and 2 others v. Secretary to Government of the Punjab, Housing and Physical Planning Department and 3 others (P L D 1983 Lah. 206) but I find that this Authority shall not held the case of the appellant for the simple reason that it is not passed on the provisions of the Standing Order 15 (4) of the Standing Orders Ordinance, 1968, which is a special provision, the Legislature in its wisdom thought it fit to provide. Accordingly, I do not find force in this contention raised on behalf of the appellant as well.

A. E.

Appeal dismissed.

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