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Appeals Nos. KAR‑65 and 66 of 1984, decided on 14th January, 1986.

‑‑‑Ss. 25‑A & 38(3)‑‑Domestic enquiry‑‑Charges refuted throughout and defended by employee in enquiry‑‑Suggestion that employee confessed charge in personal hearing before dismissing authority‑‑Dismissing authority dictating in order that employee confessed his guilt‑‑Reliance, in circumstances, not placed on evidence of dismissing authority as regards confession or admission of guilt of employee in view of persistent denial thereof, during enquiry.

Ali Amjad for Appellants.

M.A. Khan for Respondent.

Date of hearing: 8th September, 1985.

The IInd Sind Labour Court at Karachi, dismissed the grievance petitions of the two above appellants on 19‑2‑1984. I wish to dispose of these two appeals by the single Decision as the facts emanate from the incident are same and the evidence is also similar.

2. The facts are that the two appellants filed two separate grievance petitions under section 25‑A, I.R.0. , 1969, with regard to their dismissal from the service. The prosecution allegation is that on 7‑12‑1982, in the morning hours at about 7‑00 a.m.; these appellants who are friends reached the gate of the factory. Appellant Shahanshah punched the card of appellant Mujeebur Rehman. This was objected by the Chowkidar or Darban, one Badshah Khan. Over this punching of the cards, there was a quarrel between the parties, namely, the two appellants and Badshah Khan. However,the other workers intervened and averted the situation. A domestic enquiry was.held before the enquiry officer, Mr. M. Arshad. The allegations of tke appellants are that they were active workers of the Collective Bargaining Agent Union and that appellant Shahanshah had filed a number of cases of malpractice against the Management before the N.I.R.C. The Management had grudge against them and they wanted to oust them out.

3. The stand taken by the respondents, namely, Pakistan Cables Limited, is that the two appellants were found guilty for riotous behaviour and illegally punching the cards against the rules of the establishment, hence, they were dismissed. The charge was not false and the proper domestic enquiry was conducted. They denied all the allegations against them. The General Manager of the establishment, on 6‑3‑1983, had called each of the appellants, separately and they confessed their guilt.

4. I have rd the arguments of Mr. Ali Amjad, the learned counsel for the appellant and Mr. M.A. Khan for the respondents. I have further gone through the impugned orders and the contents of the enquiry held by the respondents.

5. First of all, I would deal with the contentions of the appellants who said that the incident of punching the cards is entirely false and that appellant, Shahanshah had filed cases before N.I.R.C. and an application under section 34 of I.R.0., 1969 on 12‑8‑1981. So far these cases are concerned, there is on record the documents, Exh.R‑3 and R‑5. Exh.R‑5 pertaining to N.I.R.C. order of restraining the establishment from changing the existing terms and conditions of workmen etc. This proves that Shahanshah did file certain cases against the establishment and there was some ill‑will between the parties. This being the background, I would now advert to the incident as it occurred on 7‑12‑1982 in the morning at 7 o'clock. The enquiry report is before me. In the domestic enquiry, the evidence of Badshah Khan was recorded on 31‑12‑1982. In nutshell his evidence is that Shahanshah came at 7‑00 a.m.; and he punched two cards. Badshah Khan enquired from Shahanshah as to which the second card he has punched to which he said that he has punched the card of Mujeebur Rehman and this embittered the two parties and there was quarrel and both Mujeebur Rehman and Shahanshah attempted physically to attack him but other co‑workers intervened and separated them. They abused also to Badshah Khan. The cross‑examination is of the same nature. There is admission in cross‑examination that Shahanshah and Mujeebur Rehman both came on one motor‑cycle and that they belonged to separate panel during the elections of the Union. Badshah Khan admitted that on 24‑10‑1982 he filed a report against Shahanshah. At the time of quarrel Shahanshah carried nothing in his hand neither Danda nor knife. Badshah Khan further admitted in cross‑examination that none of the appellants caught hold of his color and also he denied that any portion of his body touched the body of Shahanshah or Mujeebur Rehman. The next witness was Gul Shumal who stated that there was heated atmosphere at the relevant time and nothing more. His cross‑examination is same. In nutshell, that no portion of the body of Shahanshah or Mujeebur Rehman touched any portion of Badshah Khan. Next witness is Ghulam Hussain. He gave general narration of the quarrel and in cross‑examination he states that he did not see that punching of the cards nor he heard the abuses. It was only heated atmosphere because he was busy and he could not see the attack on Badshah Khan. After this, the evidence of Maqsood Gul and Lal Zaman was recorded in which the witnesses have added one factor that Shahanshah was holding a cigarette packet which he threw on Badshah Khan and Badshah Khan was also abused. These are the prosecution witnesses on which the enquiry officer has relied upon. The enquiry officer has also recorded the evidence in defence of the witnesses of Ghulam Yaseen, Taj Muhammad and Munawar Zaidi. These witnesses do not support whatsoever the punching of the cards and the abuses advanced on Badshah Khan.

6. Briefly, above is the evidence of the domestic enquiry. The prosecution witnesses, Badshah Khan and Gul Shumal have given a story which suggests only heated atmosphere. One witness gives additional fact of throwing cigarette packet on Badshah Khan. There is a discrepancy and contradiction in the evidence of prosecution while the witnesses in defence who also were present, they do not support the story as narrated by the prosecution witnesses. They falsify the evidence of Badshah Khan and his three witnesses. The cross‑examination of the prosecution witnesses is very important and it shows that in fact a quarrel or heated arguments between Badshah Gul and Shahanshah took place but the punching of the cards by Shahanshah is not proved and it appears to be a false charge. This is clear from the witnesses of the defence. The analysis of the evidence shows on the whole that the punching of the cards is not proved and Badshah Gul appears to have exagerated the incident and no judicial mind will consider this evidence of the domestic enquiry to be proving the punching of the cards, or the attack physically by the appellants on Badshah Khan. In my opinion, this evidence is not sufficient to establish the guilt against the appellants, Shahanshah or Mujeebur Rehman.

7. It appears that the enquiry report mostly relied upon the confession made by Shahanshah and Mujeebur Rehman before the General Manager. The words of General Manager are not reliable in view of the facts that he dictated that Shahanshah and Mujeebur Rehman were separately called by the General Manager and were separately interrogated. Why Mujeebur Rehman would state before the Generall Manager that his card was punched by Shahanshah and how it is possible that Shahanshah would also say that he had punched the card of Mujeebur Rehman, when all along during the enquiry, they defended themselves and maintained that each one of them punched his individual A card. What magic the General Manager had to elicit from the appellants that they committed the guilt when all along they denied in the enquiry proceedings. These are the reasons that I would not place reliance on the evidence of General Manager as regards the confession or admission of the guilt by the two appellants.

8. The result is that the prosecution story is exaggerated and no reliance could be placed in the alleged story and the defence story appears to be more plausible and the evidence of the General Manager is entirely false. No guilt is proved against both the appellants.

9. It is amazing that the impugned order has not dealt with the defence witnesses at all. He has not attended or referred the defence version and he has entirely placed reliance on the version of the respondents establishment. Therefore, the result is that the appellants do not seem to be guilty and I disagree with the impugned orders passed by the learned Labour Court. They merit to be re‑instated. Accordingly, the appeals of these two appellants are allowed and they be re‑instated. As regards the back benefits, I am reluctant to give them the back benefits, therefore, they be only re‑instated forthwith.

A. E. Appeals allowed.

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