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Application No.304 of 1983, decided on 26th February, 1984.

‑‑‑Domestic enquiry‑‑Accused alleged to have distributed pamphlet to workers urging formation of a Union as against existing C.B.A. mentioning same as Pocket Union and inciting workers against Management and to stand on one Platform for lawful and peaceful agitation Defence opportunity not given to accused after recording his statement of admission regarding distribution of pamphlet‑‑No findings given as to how language of pamphlet was objectionable‑‑Dismissal from service on basis of such enquiry, held, not sustainable‑‑Labour Court awarding temporary re‑instatement w th direction to re‑enquiry after stage of statement of accused‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A.

P L D 1978 S C 243 and 1981 P L C 454 ref.

Mirza Muhammad Kazim for Applicant.

Masud Mirza for Respondent.

This is an application under section 25‑A of the Industrial Relations Ordinance, 1969, filed by Bashir Ahmed, against Messrs Nagaria Textile Mills Ltd., Landhi, challenging the dismissal order, passed by the respondent‑Management, which, according to him, was illegal and based on victimization.

2. Applicant is a workman of the Nagaria Textile Mills, and also, according to him, is the President of Azad Mehnatkash Union of the Textile Mills. During the formation of the Union, the applicant distributed the pamphlet to inform the workers, the circumstances as to how the union is formed, and sought support of the workers, for their rights in peaceful and lawful manner, and to get rid of pocket union, which has been thrusted on the workers to surrender their rights. This pamphlet became the basis of allegation in the charge‑sheet of 26‑5‑1983, to which he gave reply to the Management. The charge‑sheet was followed by the enquiry proceedings, and he was given a show cause and finally dismissed from the employment.

3. The grievance of the applicant, in this petition, is, that, this union, which they have formed, had annoyed, the respondent Management, who wanted the pocket union, to be, as C.B.A., without ballot and holding elections, and also, besides, this pamphlet, there was a false charge that applicant was insisting the workers against the Management.

4. Respondent‑Management has filed written statement, where they have denied that he was President of the Union under the name of Azad Mehnatkash Union, or respondent was annoyed against the applicant for the formation of the so‑called union, when the union already existed with the C.B.A.

5. Respondent has admitted, that charge‑sheet was issued, but states that the applicant was causing the Management, on the embarrassment position and causing the harassment, to the Management, inciting the workers, to disturb the industrial peace, and also fully supported, that in view of the undesirable material, the enquiry was followed, by full opportunity, and the applicant, failed to exonerate, himself from the charge.

6. I have heard Mr. Masud Mirza and Mr. Mirza Kazim.

7. The impugned dismissal is challenged by the petitioner Bashir Ahmed, that it was motivated to defeat the lawful and peaceful activities of the trade union, known as Mehnatkash Union of the Textile Mills, and the petitioner has come to seek redress, against the arbitrary action, of the Management, claiming that, the said pamphlet is, in no way, concerned to disturb the peace of industry, but to seek vindication of lawful demands, which, according to him, was the right of the union to seek vindication. Thus he criticised, the procedural action of enquiry, when petitioner was deprived of basic right of hearing not based on justice or in no way, consistent with the spirit of Standing Order 15.

8. My attention is drawn to the enquiry proceedings initiated by the Management, that it is also, in no way, concerned with the subversive discipline, to result in dismissal. The enquiry and the report of Enquiry Officer, have been referred to show by the Management, that petitioner had absolute opportunity of participation and failed absolve himself of charge of misconduct.

9. The impugned pamphlet, which became the basis of charge‑sheet, is in the nature of indictment, to show, that, the petitioner having assured himself, as the President of self‑imposed Union, excited the workers of Textile Mills, against the Management, and this distribution of pamphlet, among the workers, also was creating unrest.

10. The pamphlet, which has been produced, in this Court, also contains highly inflamatory matters, for example, it is said that no bonus was paid. There was no place in the Canteen. There is no good food in the Mills. There is harassment to the workers, through Goondaism, and many other objectionable material, which self‑explains. Further, concluding para of the pamphlet closes with these words: "workers to stand on one platform, but the agitation, should be, peaceful, and lawful. The oppressed will triumph and the oppressor, will be disappointed".

11. The enquiry proceeded with the examination of evidence of Mr. Abdul Razzaq, Muhammad Usman, Phool Zeb, and Mushtaq Ahmed. Their credibility was questioned by Bashir Ahmed, through questions and answers. To each witness, there is common questions, that, they were the hired agents of the Management. But the cross‑question, in the form, it is made, Bashir Ahmed has reflected his defence, when his defence is, that, the allegations, which are made, in the pamphlet, to excite the workers, is wrong, to which Mr. Abdul Razzaq and other witnesses have categorically stated, that, it is not correct, that he excited the workers. Mr. Bashir Ahmed, was confronted with the pamphlet and it contents, which he also admits.

12. To Mr. Phool Zeb the question also, was put, by Bashir Ahmed, that, he had given assurance, that, he will support in the enquiry, but Mr. Phool Zeb, has denied to make such assurance.

13. As statement, recorded by the Enquiry Officer, also further shows that, he has admitted publication of the pamphlet, and its contents, but, according to him, this is not objectionable to call for misconduct enquiry.

14. Apart from this aspect of the enquiry," this is admitted legal position, that, Mr. Bashir Ahmed, through seem, to have formed proposed union, but had not received Certificate of Registration, or to voice its grievance, through C.B.A., which, otherwise, was existing unless, legally cancelled, after his expiry of term.

15. Even if it be contended by Mr. Masud Mirza, representing the Management, who was said, that this misconduct, was subversive, of discipline, within the working hours of the Textile Mills. Whether, the voicing, of grievance, if made lawfully, even within his premises, to improve the Management working, in the better interest of the workers and Management, within legal framework of the union activities, was objectionable, because it happened, within the Mills

16. The question that, merits consideration whether this Meknatkash Union, or its officer‑bearers had any authority in law, to vindicate, the grievance. But firstly, whether, there is basic departure, which has occurred, that is, if law has provided, particular forum, like enquiry by the employer, under Standing Order 15, then the enquiry is to be conducted in accordance with law, not only that, but when, there is serious misconduct, and involves the clarification, of conduct, by an employee, the basic right of defence, if denied to the employee, to place his side of version, otherwise, will be negation, against the rules of natural justice, which is the basic requirement, in every afflicted cause. If the Enquiry Officer, has proceeded, to give findings, on the admission of guilt of the accused, that the pamphlet, was distributed, which contained highly inflamatory material, the record, if' any, of the cross‑examination, of Bashir Ahmed, will reflect, that, he has not reconciled with the allegations, and, needed to clarify those points, through, his defence witnesses. This is the most unfortunate aspect, of the enquiry, that the Enquiry Officer has not completed, the findings of enquiry, by giving right of defence to the petitioner, except to record, his bare statement, which, on the whole read with cross examination, is not the unqualified admission of guilt. Despite the fact, that, he admits the distribution of the pamphlets. If the Management, has, used the word, that full opportunity, was given till the closing of defence, it appears that no defence opportunity, was given, except to say, in the Judgment, that, he did not want to lead evidence. In the matter of employment, the Management, should have taken extreme A pre‑caution, to get his statement in writing that, he does not want to lead defence evidence. And then it would have satisfied not only the judicial investigation, of the facts, but also the mind of the petitioner, would have been reluctant to say, otherwise, that no defence witness was examined.

17. In view of the matter, the impugned dismissal is set aside. The Management, if finds, can proceed to give a chance of defence, from the stage, when Bashir Ahmed's statement was recorded, and then pass, proper order. The Court, is not touching the merits of the domestic enquiry, as to the conclusion, whether the conclusion is proper conclusion. Petitioner is, meanwhile, re‑instated. The back benefits will depend on the result of the fresh enquiry, to the satisfaction of the Court. However, to add further, the Management is to know, that, it is the allegation of the employee, that, the witnesses, which are produced by the Management, are hired employees, under the influence of the employer. The responsibility, therefore, of the Enquiry Officer is greater, to show, absolutely impartiality, that, the statement of each witness, is on the affirmation, to give confidence of the witnesses in reaching proper conclusion.

18. After the defence is led, and fresh findings are given, the employer, if finds, to justify his order, he has to again satisfy, the Court, that, the publication of the nature and the speech, made by the concerned, did affect the industrial working, or it was healthy union activity, for the advancement, with the restraint of the language, he used in the speech.

19. Reference is made, by Mr. Kazim, to P L D 1978 S C 243 and 1981 P L C 454.

20. In the result, the petitioner is temporarily re‑instated. He is to So and face, the enquiry.

A.E.

Order accordingly.

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