Find a Lawyer

Application No. 136 of 1984, decided on 13th July, 1985.

‑‑‑S. 25‑A‑‑Scope‑‑Spirit of Labour Laws‑‑Labour Court can examine propriety of decision of Enquiry Officer after he has given opinion on facts between accused and Management‑‑‑ Accused petitioner dismissed on charge of (i) refusal to work overtime, (ii) instigating workers to not do overtime work, and (iii) causing loss to production‑‑Accused not participating domestic enquiry and requesting due to illness for adjournments but enquiry conducted ex parte on basis of report of Doctor of Establishment that accused was not medically unfit‑‑Report of Doctor despite requests of accused withheld from him and Doctor admitting in evidence that accused complained of blood pressure and heart pain‑ Evidence with regard to serious charge of instigating others and causing production loss not recorded in presence of accused‑‑Ex parte decision on such charges not on merits, in circumstances, held, not sustainable‑ Labour Court while setting aside impugned dismissal order refraining to comment upon evidence with regard to such charges and directing Enquiry Officer to give his opinion and decision on basis of evidence on record after opportunity of defence to petitioner.

Ch. Rasheed Ahmed for Applicant.

This is an application under section 25‑A, Industrial Relations Ordinance, 1969 filed by Pam Jan against Messrs General Tyre and Rubber Company for reinstatement with back benefits against the wrongful dismissal.

2. Applicant claims that he has been in permanent service of the respondent since 1969 as the Truck Tyre Builder.

3. Applicant was served with the charge‑sheet where the allegation was that he had refused to work overtime and caused instigation to the workers, causing loss to the production.

4. On 9‑3‑1984 he was suspended and dismissed on 10‑4‑1984.

5. Applicant has grievance that he was charge‑sheeted wrongfully, because he had incurred displeasure of the Management by supporting rival group of the union. Applicant has also given the background how the enquiry was conducted:

(1) The reply submitted by the applicant was not found satisfactory without assigning any reason.

(2) Enquiry was held by the Enquiry Officer Mr. Muhammad Aslam and on the day when enquiry was to be proceeded on 12‑3‑1984 he requested for the postponement due to his illness.

(3) He received second notice that enquiry was fixed on 22‑3‑1984 and was directed by the Management to report to Dr. Anwar Ali for medical check up.

(4) He received third notice where it was said that applicant is physically fit and to complete the proceedings. The Management again directed for medical check up and what was reported was not disclosed.

(5) Applicant again appeared before Enquiry Officer on 28‑3‑1984 and requested for adjournment to nominate the co‑worker and also pleaded ground of illness.

(6) On 5‑5‑1984 enquiry started, he suddenly had the attack of disease. The enquiry was adjourned. Applicant submitted application alongwith medical certificate requesting for some rest.

(7) When the applicant did not receive any reply applicant submitted an application asking for the copy of the enquiry proceedings and dismissal letter.

6. Applicant has the grievance;

(1) That he was not heard.

(2) He was not given the opportunity of participation in the enquiry and to cross‑examine witnesses.

(3) Applicant had the genuine case for non‑appearance, which is supported by documentary evidence

(4) Applicant's illness was established by the circumstances of the medical nature.

(5) Management did not allow the applicant even to resume duty on expiry of statutory period of suspension.

(6) The hasty action in completing the enquiry ex paste showed that the management was not fair which has caused prejudice.

7. Respondent has contended that applicant was not office‑bearer of the Union and, therefore, the application is not maintainable.

8. Respondent has contended that applicant was directed to perform overtime as Foreman on 2nd March, 1984 in the first shift at 4 hours. And again on 5th March, 1984 in third shift at 5‑00 hours. Applicant refused to perform work of overtime and instigated Tyre Builders not to perform overtime on the date. The result was that production was badly affected.

9. On 9‑3‑1984 applicant was issued charge‑sheet. This charge‑sheet was acknowledged. Reply was not found satisfactory. Respondent contends that applicant was delaying the proceedings of enquiry on the grounds of illness which had no merit. Finally on 5‑4‑1984 he participated in the enquiry. He was asked to cross‑examine complainant but instead requested for adjournment. On 9‑4‑1984 he failed to participate in the enquiry. Thereafter the applicant was proceeded ex parte. Respondent has denied that applicant submitted any application on 9‑4‑1984 with the medical certificate. It was first time received on 11‑4‑1984, when enquiry was already fixed for 9 4‑1984, and in the absence of any intimation about the alleged sickness. The Enquiry Officer had proceeded and completed the enquiry ex parte. Respondent has also contended that the reply of letter of 9‑4‑1984 was duly furnished, to the applicant., Respondent has also referred the 2 letters dated 15 4‑1984 and 18‑4‑1984 by which the applicant was informed of his absence.

10. In short the case of the respondent is that the applicant had failed to participate in the enquiry on 9‑4‑1984. Enquiry Officer completed the ex parte proceedings and dismissed him from service, on ex parte decision. They have denied that he was victimised due to union activities or he was unheard or he was not given any opportunity to defend himself. They have denied that applicant had good health to appear on 9‑4‑1984 while medical certificate was issued on 28 3‑1984.

1. Mr. Ch. Rasheed Ahmed has contended that the ex parte decision given by the Enquiry Officer was not the decision on the merits and therefore the impugned order of dismissal be set aside and the applicant be given opportunity to put up his side of version where the allegation is that he disobeyed the order of foreman by refusing to work and incited the workers in the shift on 2nd March, 3rd March and 5th March as stated in the charge of misconduct.

2. Mr. Farooq Ghani has contended that applicant had proceeded ex parte when the Management had given him sufficient opportunity to appear and to defend in the enquiry proceedings but despite his physical fitness the enquiry was adjourned on the ground of his illness and finally on 9‑4‑1984 he failed to appear and the Enquiry Officer proceeded ex parte.

3. Following are the stage, explained, that how the applicant protracted the proceedings and finally the Enquiry Officer had no alternative but to proceed ex parte.

"The first date was fixed on 18‑3‑1984 where Mr. Pam Jan sent application for postponement of the enquiry on medical grounds Annexure 'D'. The enquiry was again fixed on 22‑3‑1984. He sent application and requested to adjourn the enquiry on medical grounds. On 22‑3‑1984 Enquiry was again fixed on 28‑3‑1984. He was directed to appear before the Medical Officer Dr. S.M. Sarwar, on 27‑3‑1984. On 28‑3‑1984 applicant appeared before the Enquiry Officer and, requested for adjournment on the ground of sickness. The enquiry was fixed on 5‑4‑1984. On 5‑4‑1984 applicant participated in the enquiry. Evidence of complainant was recorded, and cross‑examination was postponed. On 9‑4‑1984 Mr. Pam Jan again failed to appear and sent letter of 9‑4‑1984 which was received by the Management on 11‑4‑1984 but by that time the enquiry was completed ex paste."

4. This is an admitted position by both the sides, that matter had ended in ex parte decision and not on merits. But the respondent has tried to justify that case should not be re‑opened after the Enquiry Officer has given the decision ex paste. Looking to the circumstances whether it was the fault of the applicant himself who contributed to delay. In this context he has also further referred the opinion of the Medical Officer of the Company to show that he was physically fit and such report of Medical Officer is tied dated 28th is on the record.

5. So far the charge‑sheet i; concerned, applicant has proceeded on this allegation that he was responsible for the loss of production. He failed to do overtime. He incited the workers to stop work.

6. In this Court both parties have led evidence on this point through cross‑examination, and the production of the record from the company's side.

7. The main question is whether the main application filed by Mr. Pam Jan against respondent, is to challenge the ex parte proceedings or to go into the merits of the charge‑sheet. Under the provisions of Standing Orders if the applicant is accused of misconduct, there is domestic enquiry where the management has to appoint Enquiry Officer to enquire into the allegations whether the misconduct is proved. In this enquiry, not only the applicant is afforded opportunity to put up his evidence in support of his defence through his witnesses but also the Management has to put up his own version. In this Court only the applicant and the respondent's Witnesses are examined on the issue which was involved in the cash or whether the ex parte proceedings could be justified or not justifier in the circumstances as placed before the Court. But in this issue, it appears that parties have gone further to produce the evidence even tG the extent to show that there was loss of production. There was incitement of workers which has been denied It is, therefore, the Court has to, refrain from making any comment or the evidence when the issue before the Court was whether ex parte proceedings conducted by the inquiry Officer be maintained in the first instance. Whether the Court if proceeded to give decision, the applicant could be deprived to put up his case through his witness before the Enquiry Officer when only one witness of the respondent was examined in this Court and applicant has brought no evidence except to make admissions. 8. So, the present case, is based on this ground whether Mr. Pam Jan was suffering from illness and the Enquiry Officer could not proceed with the matter till the applicant was fully prepared, to meet his defence. How far his illness was the factual issue The Court has referred the application and the documents. Respondent has contended that Mr. Pam Jan was directed before the date of enquiry on 27th for medical check up. This certificate the Court has perused of the company's doctor which is issued on 28th and admitted by doctor that it was sent on 28th. This certificate shows that he was physically fit and had no sign of disease but at the same time the Medical Officer has admitted in the evidence that applicant complained of blood pressure and heart pain. According to the Medical observations though he had no blood pressure at that time but the blood pressure is such disease which can be developed any time. On the other hand Mr. Pam Jan has also been writing applications to the Management to give him copy of the Medical Officer's report so as to see the observations of the Medical Officer whether what he had said was correct.

9. Ch. Rashid Ahmed has contended that this report was being kept away from the applicant's side till 19‑4‑1984 when the ex parte decision was announced.

10. Ch. Rashid Ahmed is correct. The circumstances are strong enough to indicate that if the certificate is issued on 28th by the Company's doctor, yet the certificate was not shown to the applicant. What was the delay in despatching certificate when the company's doctor could be available. The diary of the case proceedings also shows that Mr. Pam Jan had been asking for the certificate but its copy was not supplied to him which could be supplied before 9‑4‑1984 if the certificate was issued on 28th when the enquiry date was fixed. This shows either suspicion on the credibility of the Medical Officer or on the Management who was holding certificate to take him by surprise from the proceedings when M.O. has admitted it is sent on 28th.

11. Respondent itself has admitted that the letter written by applicant on 9th was received on 11th but‑ by that time the ex parte decision was given. In other words if the intimation would have been received, the respondent was again to adjourn the matter. This is not the case that Mr. Pam Jan was avoiding to face the proceedings of disciplinary nature but it was due to illness that he was unable to represent his case till his cure.

12. In the result the Court is of the view that ex parte decision on such serious charges without having the merit decision, in the circum stances, as these cannot be sustained. The Court is not making comment on the evidence regarding production or other charges of incitement of workers but direct that Enquiry Officer will give him opportunity to put up the case before the Enquiry Officer by referring the same documents of productions to give his decision on merit and the Court wants to see, first his opinion, in light of the same document, produced before this Court on question of fact only,

13. It may be contended by the counsel that the Court would have decided the matter to avoid delay. The Court understands the anxiety. But the Court desires that this matter should be heard by the Enquiry Officer because trend of cross‑examination is such that applicant may produce the workers to show whether there was incitement to them to stop work, by which the production was affected, Besides it is also the spirit of labour law that Court can examine the propriety of decision of the Enquiry Officer after he has given his opinion between both labour and the management on fact.

14. The Enquiry Officer will give decision on these points:

(1) Did Mr. Pam Jan incite the workers as complained in the charge sheet

(2) Was the production affected

(3) Was he bound to do overtime

(4) The overall effect of the evidence

(5) The Enquiry Officer will not adjourn the matter, but complete the proceedings and the Management will also not change the Enquiry Officer.

Application allowed. The back benefits depend on decision. He is reinstated, till the order passed by the Management or any order Management desires fit in the circumstances.

A.E.

Application allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.