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Appeal No. Kar. 7 of 1984, decided on 17th December, 1984.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑--

‑‑‑S.O.15(4), proviso‑‑Word "assistance" ‑‑Meaning‑‑Co‑worker nominated to assist accused not essentially to be allowed to cross‑examine witnesses when accused himself cross‑examining witnesses‑‑Accused himself cross- examining witnesses‑‑Enquiry Officer not allowing co‑worker to cross -examine witnesses‑‑Accused, in circumstances, held, not prejudiced and enquiry not defective.

1982 P L C 728 distinguished.

Siraj Ahmad for Appellant.

Masood Ahmed Khan for Respondent.

Date of hearing: 17th December, 1984.

The appellant, Dost Ali Shah has filed the instant appeal against the order, dated 13‑12‑1983, passed by the IInd Sind Labour Court at Karachi, who, by his order had dismissed the grievance petition filed by the Collective Bargaining Agent on behalf of the appellant, Dost Ali Shah, under section 25‑A, I. R.O., 1969.

2. The allegation against Dost Ali Shah was that on 21‑12‑1981 during the working hours he abused one Shabbir Hussain, a worker of the canteen of the respondent‑establishment and assaulted him by throwing two plates and a tea-cup as a result of which Shabbir Hussain received a deep cut on the left side of his head.

3. Accordingly, Dost Ali Shah was charge‑sheeted on 21‑12‑1981, for having abused and assaulted a co‑worker, one Shabbir Hussain. An enquiry was initiated against Dost All Shah and the result of the enquiry was that he was dismissed on 2‑2‑1982.

4. I have heard the learned counsel Mr. Siraj Ahmad on behalf of the appellant, Dost Ali Shah and Mr. Masood Ahmad Khan for the respondent‑establishment. In his arguments, Mr. Siraj Ahmad raised three contentions, firstly, he contended that co‑worker who was appointed to assist Dost Ali Shah, was not allowed to cross‑examine; secondly, that Dost Ali Shah was charged with false and concocted allegations solely with a view to dismiss him from service; and that thirdly the enquiry officer was biased.

5. The first two contentions raised by the counsel of the appellant are to be answered. The two contentions are interconnected and I would like to answer the same. In order to come to a conclusion one has to see the evidence on record in the domestic enquiry held by the enquiry officer. The domestic enquiry carries the evidence of witness Shabbir Hussain and Abdul Khalil. 1 have perused and gone through the evidence recorded in the domestic enquiry and am surprised to find that several applications are made by the worker, Dost Ali Shah with an intention to hinder the domestic enquiry and to put spokes in the wheel. The initial applications on record by the worker are as many as 28. These applications are frivolous and one gathers a clear impression that the worker did not want the enquiry officer to proceed with the enquiry as it was scheduled. All the same ultimately when the main witness, Shabbir Hussain was examined, he was cross‑examined by the worker and not less then 29 questions were asked from him. To other witness, Abdul Khalil not less than 25 questions were asked in the cross‑examination. A number of applications for adjournment are made and a number of applications are made before the enquiry officer to read and translate loudly the examination‑in‑chief and the cross- examination. Each application was suitably granted and the poor enquiry officer has to translate and read loudly the proceedings. From the nature of these applications, one gathers an impression that the enquiry officer was being heckled from time to time. Ultimately the worker remained absent on the pretext that his wife was ill or when the opportunity was given to him to cross‑examine witnesses Nos.3 and 4, he remained absent. He insisted that Qabool Ahmed, the assistant co‑worker of Dost Ali Shah be allowed to cross‑examine the witnesses. The enquiry officer made a note that he can assist the worker in proceedings but cannot conduct the cross‑examination specially when the worker himself is present.

8. The evidence of Shabbir Hussain is very Important from the point of eliciting the truth of the allegations. On 21‑12‑1081, this worker Dost Ali Shah entered the canteen and ordered for boiled eggs. The eggs were all consumed and, therefore, a fresh order was given and in the meantime the worker was thumping the table and creating fuss, Shabbir Hussain told him to wait but he threw a plate on him which missed Shabbir Hussain. Then, again the worker abused Shabbir Hussain on mother and when Shabbir Hussain bent down to collect the pieces of soccer a cup was thrown on him and a piece of glass inflicted deep cut on the left side of his forehead and then he was taken to Factory's Dispensary and ultimately he was taken to Abbasi Shaheed Hospital where piece of glass was picked out from his wounds, The evidence of Shabbir Hussain further gives a description as to how the worker and his companions forced him to forgive the appellant. He forgive him but the management did not forgive him, From the evidence of the worker in the domestic enquiry it shows that the appellant was aggressive and abusive and be caused hurt to Shabbir Hussain. He is supported by Abdul Khalil.

7. The conduct of the appellant in the domestic enquiry was not fair and was to hinder the fair conduct of the proceedings. Ultimately, he did not attend the enquiry, therefore, the witnesses, Shahid Hussain and Abdul Wahab were examined in his absence. He deliberately did not come to attend the enquiry proceedings. In the affidavit furnished by the enquiry officer before the learned Labour Court at paragraph 12 it is suggested that the worker was given an opportunity to cross- examine to those witnesses on a later date, namely, on 17‑1‑1982, but he chose to remain absent. Under those circumstances, the enquiry was held.

8. The reply to the arguments of the learned counsel of the appellant is, firstly, that the charge was not baseless and there is no evidence to show that the allegations were made against the worker to get his services dismissed. This contention is not borne out from the record. The second contention is that Qabool Ahmed, the assistant co‑worker was not allowed to cross‑examine the witnesses. No prejudice is caused to the appellant as he has himself cross‑examined the two witnesses, namely, asking 29 questions from the first witness, Shabbir Hussain and 25 questions from the second witness, Abdul Khalil. Under these circumstances, no prejudice is caused to the worker. I am referred to the authority reported in 1982 P L C 728. Although, Mr. 2.A. Channa the then Chairman of this Tribunal has held that not to allow the cross‑examination by the assistant of the accused worker, would vitiate the proceedings but in this present case, the worker has himself cross- examined and as such no prejudice is caused. The statutory right and the provisions in this behalf which is contained in the proviso to clause (4) of Standing Order 15 reads as under: --‑

"Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."

9. It is contended by the learned counsel for the respondent establishment, Mr. Masood Ahmad Khan, that in this case the employer's permission is not sought and the employer has not nominated Qabool Ahmed, the co‑worker. It is the enquiry officer who had allowed the co‑worker to assist the accused worker. The learned counsel has further made a note that the assistance of the nominee contemplated in the above provisions was limited only to the advising to the workman including the advice to what questions may be put to the witness. In the Shorter Oxford English Dictionary, the term "assistance" is defined as "The action of helping or aiding: also the help afforded, aid, relief." In Webster's Third New International Dictionary, Volume 1, the term has been defined as. "The act or action of assisting aid, help, the help, supplied or given." In Black's Law Dictionary, the word "assist" has been defined as; "to help, aid, succour. These words and definitions do not mean that the co‑worker should cross‑examine the witnesses even if the accused is present and who has successfully cross‑examines and no prejudice is caused to the accused. The main point is to assess whether any prejudice is caused to the accused worker in the absence of the cross‑examination by the co‑worker. In this particular case, find no prejudice is caused to the co‑worker.

10. The third contention is whether the enquiry officer was biased. From the perusal of the enquiry itself and from the affidavit by the enquiry officer. I find that the enquiry officer is not biased and had taken efforts to allow the accused worker to cross‑examine and has afforded several adjournments to the accused but the accused was adment somehow to absent himself. Best efforts were undertaken by the enquiry officer to afford chance to the accused worker. The enquiry officer is not at all biased.

11. Under these circumstances, this appeal has no force whatsoever and is hereby dismissed.

A. E.

Appeal dismissed.

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