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Appeal No. KAR‑39 of 1983, heard on 11th May, 1983.

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--- Ss. 25‑A & 37‑Grievance petition against dismissal from service‑Workman involved in a quarrel and fight with co‑worker in factory premises‑‑Both making written complaints against each other through an officer of factory and such officer endorsing the complaints‑Both reaching to a compromise but disciplinary action on charge of riotous and disorderly behaviour during working hours taken by Management ‑ No tangible evidence adduced during domestic enquiry supporting alleged misconduct and factory officer endorsing complaints also changing his, version allegedly under pressure of workers union‑Punishment awarded mainly on basis of written endorsement of factory officer on initial complaints‑Statement or evidence of such witness, held, not reliable and Labour Court, in circumstances, held, rightly reached conculusion that charge not proved Reinstatement awarded by Labour Court upheld by Appellate Tribunal‑Petitioner found to be responsible for delayed decision on grievance petition because of some adjournments attributable to him and his conduct in alleged incident also evident‑Order of Labour Court allowing full back benefits, in circumstances, altered to that of only 75% of back benefits.

Syed Qamaruddin Hassan for Appellants.

Ali Amjad for Respondent.

Date of hearing : 11th May, 1983.

This appeal is directed against the decision of the learned Second Labour Court, given on 16th January, 1983 allowing the grievance petition of the respondent workman and directing the appellant Corporation to re‑instate him in service with full back benefits.

2. The admitted facts of this case are that both the respondent and one Abdul Ali were at the relevant time employed in the appellant Corporation. On 13th December, 1981 some incident took place in the factory of the appellant Corporation involving the respondent and the said Abdul Ali. In respect of that incident both Abdul Ali and the respondent submitted their respective complaints to the Management. On the complaint of Abdul Ali, Iqbal Shakoor, Deputy Manager Incharge of the Plant Engineering inference appellant Corporation made an endorsement, while forwarding the complaint for disciplinary action, that "the said incident (a) took place in my presence". On the basis of Abdul Ali's complaint a show‑cause notice, dated 13th December, 1981 was issued to the respondent. In his reply, the respondent submitted that no quarrel or incident involving misconduct had taken place between him and Abdul Ali and that they were on the best of terms with each other. He, accordingly, requested that the show‑cause notice should be dropped and his complaint against Abdul Ali be returned to him.

3. On the same day a compromise application was submitted to the Management by both the respondent and Abdul Ali. In which it was stated that the misunderstanding between them had been removed and hence the complaints filed by them against each other should be returned. This compromise application appears to have been made through Iqbal Shakoor who forwarded it for necessary action to the Manage ment. The Management was not satisfied with the respondent's expla nation and also was not willing to drop the matter on the basis of the compromise effected by the parties. Accordingly a domestic enquiry was ordered and Habibur Rehman, a Junior Executive in the appellant Corporation, was appointed to hold the enquiry. He examined Abdul Ali, Iqbal Shakoor and other persons who are stated to have been eye‑witnesses to the incident between the parties. None of these witnesses, however, supported the charges against the respondent. Never theless, the Enquiry Officer, mainly on the basis of the complaint of Abdul Ali, the endorsement thereon by Iqbal Shakoor and the fact that the parties had effected a compromise, was inclined to the view that both the respondent and Abdul Ali had committed acts of riotous and disorderly behaviour during working hours and also acts subversive of discipline. On the basis of the Enquiry Officer's finding, the respon dent was dismissed from service, vide order, dated 6th January, 1982, after he was served with a second show‑cause notice and given an opportunity of personal hearing. As regards Abdul Ali, it was stated by Mr. Syed Qamaruddin Hassan, the learned counsel for the appellant Corporation, that as he had tendered a mercy petition no further action was taken against him except that his one increment was stopped. The respondent challenged the orders of his dismissal through a grie vance petition preferred before the learned Second Labour Court. The grievance petition of the respondent was resisted by the appellant on the ground that the appellant was rightly dismissed from service on the basis of material, which was adduced against him in the enquiry pro ceedings. In support of their case against the respondent the appellants examined before the learned Labour Court, Iqbal Shakoor and Harold Meik, the Manager (Industrial Relations) of the respondent Corporation, and produced the enquiry proceedings and the report of the Enquiry Officer. The learned Labour Court came to the conclusion that there was no trangible evidence on record to establish the misconduct for which the respondent was charge‑sheeted and, accordingly, has directed his re‑instatement in service with ful back benefits.

4. I have heard Mr. Syed Qamaruddin Hassan, the learned counsel for the appellant Corporation and Mr. Ali Amjad, who appeared for the respondent workman. It was strongly urged by Mr. Syed Qamar uddin Hassan that there was strong circumstancial evidence before the Enquiry Officer and direct as well as circumstantial evidence before the learned Labour Court in support of the charges against the respon dent. The main circumstantial evidence relied upon by Mr. Syed Qamar uddin Hassan, which was produced before the Enquiry Officer, and which evidence, according to Mr. Qamaruddin Hassan, had been ignored by the learned Labour Court, is the complaint made by Abdul Ali against the respondent. No doubt in his complaint Abdul Ali has alleged that the respondent had abused, assaulted and injured him, but when Abdul Ali was examined before the Enquiry Officer, he went back upon his complaint, though admitting that he had made this complaint, and denied that the happening in the complaint took place at all. The other witnesses examined in the enquiry proceedings, including Deputy Manager, Iqbal Shakoor, equally denied that any of the happenings as described in the complaint of Abdul Ali took place. According to witness Iqbal Shakoor there was only a discussion between the parties and nothing more. In the face of this evidence, it is not possible to place any reliance on the complaint of Abdul Ali and in my view the complaint was rightly disbelieved by the learned Labour Court, Mr. Syed Qamaruddin Hassan, however, sought to rely on the endorsement on the complaint of Abdul Ali by witness Iqbal Shakoor that the incident stated in the complaint took place in his presence. In the first place Iqbal Shakoor had not used the word incident but the word "incidence" but even if it be assumed that an officer of the rank of Deputy Manager could use such wrong word this endorsement does not help the case of the appellant Corporation. As already indi cated, Iqbal Shakoor, in his statement before the Enquiry Officer, did not support the complaint of Abdul Ali and merely stated that a discussion between the parties took place in his presence. When his attention was specifically drawn by the Enquiry Officer to his endorse ment on the complaint of Abdul Ali that the said "incidence" took place in his presence even then Iqbal Shakoor did not change from his stand and stated as follows :‑

There was, thus, no tangible evidence before the Enquiry Officer in support of the charges against the respondent and I am of the view that the findings of the Enquiry Officer are based on no evidence but on inferences supported by no proof.

5. Mr. Syed Qamaruddin Hassan strongly relied upon the evidence given by Iqbal Shakoor before the learned Labour Court. In that evidence the witness has materially changed from the statement, which he made before the Enquiry Officer. In his affidavit before the learned Labour Court he stated that a quarrel between the respondent and Abdul Ali took place on 13th December, 1981, that both the parties gave complaints to him to be forwarded to the Management, that on the complaint of Abdul Ali he had given two endorsements and affixed his signatures on both of them, that the two complaints made to him were in respect of the fight quarrel which took place on 13th December, 1981 between the respondent and Abdul Ali and that his statement in the domestic enquiry against the respondent was due to the reason mentioned by him in his letter, dated 17th January, 1982. The letter referred by lqbal Shakoor in his affidavit was submitted by him in response to the show -cause notice which was issued against the witness for giving false evidence before the Enquiry Officer. In that letter Iqbal Shakoor has taken the plea that the endorsement made by him on the complaint of Abdul Ali that the incident took place in his presence was correct but since he was threatened and pressurised by the office‑bearers of the union and some workers, therefore, he had no option but to gives a statement minimizing the incident between the said workers. The very explanation of the witness indicate that he is a person of weak moral character who could be pressurised to make any convenient statement. No. reli ance, therefore, can be placed on the work of such a witness. More over, he has admitted that upto the time that he was served with the show‑cause notice by the Management, he had not complained in wri ting to the Management that that has been pressurised by the office -bearers of the union or the workers to make a wrong or false state ment before the Enquiry Officer. I have already referred to the fact that the compromise application submitted by Abdul Ali to the respon dent was made through Iqbal Shakoor and he had forwarded the same to the Management with his endorsement. This shows that the witness was personally involved in the whole affairs. For all these reasons it is not possible to place any reliance either on his statement before the Enquiry officer or before the learned Labour Court or even to take his endorse ment on the complaint of Abdul Ali as based on truth.

6. For the reasons discussed by me above I would agree with the view taken by the learned Labour Court that there was no tangible material in support of the charges against the respondent and would concur in the direction of the learned Labour Court for the reinstate ment in service of the respondent.

7. There remains only the question whether the respondent is entitled to full back benefits awarded to him by the learned Labour Court. Admittedly some incident took place between the respondent and Abdul Ali on 13th December, 1981. In respect of this incident both the parties submitted separate reports to the Management. It appears that in that incident Abdul Ali sustained an injury on his finger as stated by him in his complaint, though in the enquiry proceedings he changed his version and contended that the injury was sustained by him by a pencil cutter. Furthermore, the proceedings before the learned Labour Court dragged on for about seven months and I find from the diary of the learned Labour Court that some the adjourn ments are attributed to the respondent. I have already referred to the fact that the other participant in the incident, Abdul Ali, was awarded the punishment of stoppage of his increment for one year and a warn ing, has stated by witness Iqbal Shakoor in his evidence before the learned Labour Court. Taking all these circumstances into consideration I would award the respondent seventy‑five per cent of the back benefits. The amount awarded to the respondent to be paid to him out of the amount deposited by the appellant Corporation subject to any adjustment as to the correct amount due to the respondent.

A. E.

Appeal accepted.

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