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Appeal No. LHR‑323 of 1983, decided on 31st March, 1986.

‑‑‑S. 25‑A‑‑Industrial dispute‑‑Domestic enquiry‑‑Prosecution has to stand on its own legs and cannot take benefit of weaknesses of defence evidence‑‑Four workmen alleged to have beaten complainant workman‑ Statement of one independent prosecution witness indicative of presence of only one accused at place of occurrence‑‑Evidence of defence witnesses containing discrepancies about presence of all accused at place in occurrence‑‑Prosecution, held, could not take benefit of discrepancies in statements of defence witnesses to prove allegation of beating complainant by all accused.

‑‑‑S. 25‑A‑‑Industrial dispute‑‑Domestic enquiry‑‑Statement of resiling, witness made in absence of employee and thus not subjected to cross‑examination, not supported by evidence of independent witness, held, could not be used against accused to corroborate statement of complainant.

P L D 1956 Lah. 65 ref.

‑‑‑S. 25‑A‑‑Industrial dispute‑‑Domestic enquiry Presumption against prosecution‑‑Complainant workman alleged to have been beaten by four accused workmen‑‑Complainant admittedly examined medically but medico‑legal report not produced‑‑Presence of 3 out of 4 accused at place of occurrence disputed‑‑Number of injuries sustained by complainant not indicated‑‑Withholding of medico‑legal report, in circumstances, held, raised presumption that if produced it would have weakened prosecution on case.

--‑S. 25‑A‑‑Scope‑‑Labour Court via‑a‑via domestic enquiry‑‑Labour Court can go into all facts and is thus a second forum‑‑Prosecution having failed to establish charge in enquiry, held, could not establish same in Labour Court after passing of dismissal order.

‑‑‑S. 25‑A‑‑Industrial dispute‑‑Domestic enquiry‑‑Statement of solitary witness‑‑Sufficiency of, to prove charge‑‑Where alleged occurrence was seen by only one witness, his statement may be sufficient but where occurrence was seen by many witnesses and only one witness having motive to falsely implicate accused supporting prosecution case, acting upon his statement, held, would be unsafe in absence of corroborative evidence.

1984 S C M R 1184 and P L D 1957 S C (Ind.) 525 ref.

1976 S C M R 368 distinguished.

‑‑‑Ss. 25‑A & 37‑‑Appeal‑‑Labour Court consolidating four separate grievance petitions and dismissing same by single judgment‑‑Single appeal against such order of Labour Court, held, would be competent and maintainable.

1984 P L C 969 distinguished.

‑‑‑Ss. 25‑A & 38(3)‑‑Re‑instatement‑‑Back benefits‑‑Workmen dismissed from service on charge of beating co‑worker‑‑ Charge not established‑ Management found to be justified in taking action for breach of discipline‑‑Workmen, in circumstances, held, should content themselves with order of re‑instatement without back benefits‑‑Burdening management with back benefits, held, may prevent it from taking action in future in such cases.

Muhammad Akram for Appellants.

K.M. Pasha for Respondent.

This is an appeal directed against the decision, dated 5‑6‑1983 1984 P L C 61 recorded by the learned Presiding Officer, Punjab Labour Court No. 3, Lahore at Ferozewala dismissing the grievance petitions of the appellants for their re‑instatement in service. Previously, the appeal was decided by me on 15‑8‑1984 whereby the appellants were directed to be re‑instated in service without back benefits. Boo the parties challenged the decision before the High Court in the writ petitions and the case has been remanded 1986 P L C 515 on the ground that although this Tribunal observed that the incident, date 2‑3‑1982 had taken place at 6‑45 p.m. outside the factory premises was retaliatory yet nothing was said about the motive. So far as the question of retaliation was concerned, two versions were put forward one by the appellants and the other by Saeed Tariq, complainant, who was given beating. The version given by Muhammad lqbal, one of the appellants, was that a person had inquired about Saeed Tariq since he had to recover some money from him and that he had pointed out Saeed Tariq to him, that Saeed Tariq felt offended and thus gave him a beating outside the factory premises. The story of the motive put forward by Saeed Tariq is that the material went short during his duty hours. He, therefore, asked his supervisor Mr. Anwar for the supply of the same, who told him that Muhammad lqbal had been deputed to bring the said articles from outside. When Muhammad lqbal was asked for the same he replied that he was not his private servant and used rubbish words. He further said that he went to the office of Production Manager Mr. Suhail and informed him of what Muhammad lqbal had said, who inquired from Mr. Anwar, Supervisor why lqbal was not supplying the material and that Muhammad Anwar asked Muhammad lqbal with folded hands that for the sake of God, he should bring the required articles and save him from being disgraced, whereupon Muhammad Iqbal after a short time brought the articles. So far as the story of motive put forward by Muhammad Iqbal, one of the appellants, is concerned, the same does not appear to be believable, inasmuch as neither he disclosed the name of the person who wanted to see Saeed Tariq in connection with recovery of some money from him, nor any evidence was produced to the effect that the person who had entered the premises to see Mr. Saeed Tariq was issued any gate pass or was permitted to enter the factory. Needless to say that during working hours usually no outsider is allowed to enter the factory, unless the Manager or some other authorised officer given permission. But at the same time :he story of the motive put forward by Saeed Tariq is not sufficient to show that the motive was for Muhammad lqbal or all the four appellants to beat him. Rather motive could be for Saeed Tariq to attack and beat Muhammad Iqbal. It was Muhammad lqbal who is alleged to have fallen out with Saeed Tariq when the latter had asked him to supply the articles. According to Saeed Tariq, Muhammad lqbal, as mentioned above, had used filthy language and had said to him that he was not his private servant. The use of filthy language and saying that Muhammad lqbal was not private servant could serve as a motive for Saeed Tariq to teach a lessor to Muhammad lqbal for saying so and could not have actuated Muhammad Iqbal on tire contrary to beat Saeed Tariq. No doubt Saeed Tariq is alleged to have told the supervisor what Muhammad Iqbal had said to him, but in spite of it neither any action was taken against Muhammad Iqbal, nor he was scolded by Muhammad Anwar or any other officer, rather Muhammad Anwar with folded hands asked Muhammad lqbal to bring the articles for the sake of God. Saeed Tariq did not say that he in reply to wheat Muhammad lqbal had said, had abused him, or had used filthy language. He also did not say that Muhammad lqbal had threatened to, beat him.

2. So far as the occurrence which took place outside the factory at 6‑45 p.m. is concerned the prosecution evidence except the statement of Saeed Tariq, is only this that Muhammad Iqbal and Saeed Tariq were seen fighting and that Syed Ehsan Ali Bukhari and Mir Hassan, watchmen separated them.‑Except the statement of Saeed Tariq none of the other witnesses deposed that the remaining three appellants namely, Maqbool, Abdul Ghafoor and Riaz Shahid had also beaten Mr. Saeed Tariq. Mir Hassan and Syed Ehsan Ali Bokhari, watchmen were declared as hostile witnesses, inasmuch as what they had said in the inquiry was is contradiction to the reports made by them about the incident. In their reports Exhs. P. 2 and P. 3, which were proved by evidence of Mr. A.D. Khadim, the said two witnesses had said that the other three appellants namely, Maqbool, Abdul Ghafoor and Riaz Shahid had also beaten Saeed Tariq. Report of Mir Hasan is Exh. P. 2 and that of Syed Ehsan Ali Bokhari Exh. P. 3. These reports were recorded by Mr. A.D. Khadim. Mr. A.D. Khadim is a senior officer and according to him also, only Muhammad lqbal was beating Saeed Tariq. He also said that Mir Hasan and Ehsan Ali Bokhari had told him that Muhammad Maqbool, Abdul Ghafoor and Riaz Shahid had also beaten Saeed Tariq.

3. Learned counsel for the respondent has argued that Mir Hasan and Syed Ehsan Ali Bokhari had been won over by the appellants, therefore, they had resiled from their reports Exhs. P. 2 and P. 3, otherwise the actual story of the occurrence is the same as given in their reports. I do not find any force in this argument. As mentioned above Mr. A.D. Khadim, being a senior Officer, who had no soft corner for Maqbool, Abdul Ghafoor and Riaz Shahid, and no enmity with Saeed Tariq, cannot be said to have concealed the real facts and twisted the story of occurrence. If Mr. A.D. Khadim had supported the statement of Saeed Tariq, of course there could have been some scope to say that Mir Hasan and Syed Ehsan Ali Bokhari had resiled from their reports Exhs. P. 2 and P. 3. The three appellants namely, Maqbool, Abdul Ghafoor and Riaz Shahid said that they had reduced Muhammad lqbal from the clutches of Saeed Tariq. Mr. A.D. Khadim may have reached the place of occurrence after the three appellants mentioned above had stopped intervening and rescued Muhammad lqbal and he may have seen only Muhammad Iqbal beating Saeed Tariq, therefore, he stated so. This witness stated that he had reached the place of incident after sometime. On hearing noise he did not bother but when the noise increased then he, as stated by him, had gone to the place of incident. This is a human conduct that if one is beaten, he in retaliation beats his opponent if he gets chance. Since he was beaten by Saeed Tariq, as after he was rescued from his clutches by Maqbool, Abdul Ghafoor and Riaz Shahid, therefore, he got a chance and in retaliation may have beaten Saeed Tariq and since Mr. A.D. Khadim had by that time reached there, so he only found Muhammad lqbal beating Saeed Tariq. Out of defence witnesses Muhammad Siddiq did not say that Maqbool, Abdul Ghafoor and Riaz Shahid had intervened and rescued Muhammad lqbal from the clutches of Saeed Tariq, but Muhammad Sharif D.W. 2 stated so. The third defence witness Muhammad Ramzan did not name Maqbool, Abdul Ghafoor and Riaz Shahid. On account of the discrepancy in their statements as pointed out above, it cannot be said with certainty that they had actually seen the incident. But always prosecution has to stand on its own legs and cannot take benefit of the weakness of the defence evidence.

4. It has been argued by the learned counsel for the respondent that the evidence of Saeed Tariq stands corroborated by the previous statements of Mir Hasan and Ehsan Ali Bokhari and by the punch cards in which the time of exit of all the four appellants and of Saeed Tariq is the same, which shows that the appellants had conspired together and chased Saeed Tariq outside the factory gate. So far as previous statements of Mir Hasan and Syed Ehsan Ali Bokhari are concerned, the same cannot be used against the appellants since independent witness Mr. A.D. Khadim has not supported them. So far as the punch cards are concerned, the mere fact that time of exit is given same i.e. 6‑41 p.m. is not sufficient to say that all the four appellants had made a plan to beat Saeed Tariq. Not only that time of exit of only these five persons was the same, but could be of other workers also but it did not mean that all the workers whose time of exit was the same had any common intention. There was no suggestion that Muhammad Iqbal between whom and Saeed Tariq the fight had taken place, had also friendship or other relation with the other three appellants. As the evidence of motive shows that Saeed Tariq could have motive to beat Muhammad Iqbal, the statements of Mir Hasan and Syed Ehsan Ali Bokhari made in the inquiry appear to be correct that they had seen Muhammad Iqbal and Saeed Tariq grappling and fighting with each other. Saved Tariq was medically examined but the medico‑legal report is not on the record. If that evidence had been produced, number and nature of the injuries if any present on the person of Saeed Tariq could have helped in deciding whether he was beaten or he had beaten Muhammad Iqbal and others. If he had been beaten by four persons, there could have been number of injuries on his person. The withholding of medical evidence raises a presumption that if if had been produced, it would have weakened the case of the prosecution. If Saeed Tariq had not been got medically examined, the result would have been different, but since admittedly he was got medically examined, non‑production of medico‑legal report weakens the case of the prosecution.

5. Learned counsel for the respondent has argued that Labour Courts have to go into all the facts of the case and, therefore, it is a second forum in such cases. This is true but if the prosecution has failed to establish the case in the inquiry, it cannot establish it in the Labour Court after passing the order of dismissal. He has also argued that conviction can be based on solitary statement of a witness and in this respect has relied upon 1984 S C M R 1184. In cases where, according to the prosecution story, only one‑witness had seen the occurrence his statement may be sufficient to prove the charge but where many witnesses have seen the occurrence and only one has supported the prosecution case, it is unsafe in the absence of corroborative evidence to act on his statement. As a principle it cannot be denied that a case may be proved by one witness. No doubt, it has been said in P L D 1957 S C Ind. 525 that corroboration is not always necessary but where other witnesses have not supported the occurrence, the testimony of a single witness without material corroboration cannot be accepted. In 1976 SCMR 368 it is held that a witness who is related to a deceased but having no cause to falsely implicate the accused should be believed. The authority is not relevant to the case as Saeed Tariq had a motive to falsely implicate Muhammad Iqbal since the latter had provoked him in the incident which, according to Saeed Tariq, had taken place on the same day during working hours in the factory. P L D 1956 Lah. 657 has been cited by the learned counsel for the respondent in support of his argument that previous statement of a resiled witness can be accepted. Those previous statements can be used in which the accused had opportunity of cross‑examination, but in the present case the reports Exhs. P. 2 and P. 3 of the two witnesses who are alleged to have resiled from their previous statements were not made in the presence of the appellants and thus they had no opportunity to cross‑examine them. So such previous statements cannot be acted upon. In ordinary criminal cases those previous statements can be brought on the record under section 288 (deleted) of the Cr. P.C. is which the accused had opportunity to cross‑examine the said witness.

6. The last point argued is that four separate grievance petitions were brought by the appellants, which though were consolidated by the learned lower Court and decided by single judgment, yet separate appeals could have been preferred and not a single one. In support of the point the learned counsel has cited 1984 P L C 969. In the said case the names of all the workers were not put in the list of the respondents and by mentioning the name of one respondent, the words and others were added which too afterwards were scored off. In these circumstances, it was held in the said ruling that it was in reality an appeal against one person whose names had been mentioned and not against the rest. But this is not the case with the present appeal. No doubt, the appeal is one but all the four appellants are expressly mentioned as such. The order of the learned lower Court dismissing the grievance petitions of the appellants, therefore, is not maintainable.

7. So far as back benefits are concerned, no, doubt the appellants stated that they right from the date of order of dismissal remained out of job and the respondent could not prove the suggestion that they had been getting commission from the purchasers of the tractors for supplying trucks for the transportation of the tractors purchased, but in view of the fact that since an incident had taken place within the factory in early hours on account of which the second incident took place outside the factory, the management was justified in taking action for the breach of discipline. If the management is burdened with back benefits, it may prevent the management from taking action in future in such cases. So, in such circumstances of the case, I am of the opinion that the appellant should content themselves with the orders of re‑instatement. So, they are not allowed back benefits.

8. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellants are directed to be re‑instated in service without back benefits.

A. E. Appeal accepted.

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