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Application No.82 of 1983, decided on 7th August, 1984.

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‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15 (4)‑‑Grievance petition against dismissal‑‑General Manager after findings of Enquiry Officer ordering dismissal of employee‑‑By virtue of delegated power, General Manager, held, could direct enquiry or to suspend employee or to do any act which concerns management affairs‑‑However, power of according approval of dismissal being extraordinary power would vest only in employer of establishment‑‑Absence of such approval from employer would render dismissal of employee against legal requirements, which would justify acceptance of appeal.

(b) West Pakistan Industrial and Commercial Employment (Stand Orders) Ordinance (VI of 1968)-----

‑‑‑S.O. 15‑‑Nomination of choice‑‑Entitlement for‑‑For exercise of entitlement to nomination of choice, worker, held, should be in establishment‑‑Such entitlement could not be exerted by a dismissed worker‑‑Competency of such nomination would not be lost in respect of worker who though dismissed had been proceeding against such dismissal in appeal‑‑Worker to be deprived of choice to put up his case would be unwarranted.

‑‑‑S. 25‑A‑‑Grievance petition against dismissal‑‑Enquiry proceedings‑ Mode of conducting‑‑Previous instances of charge‑sheet, held, would be required to be basis of present charge‑sheet within one month of cause of action‑‑In absence of such course same could be read as evidence showing previous conduct that such employee was receiving warnings.

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

‑‑‑S.O. 15(e)‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑Grievance petition‑‑Habitual absence‑‑‑To constitute charge of habitual absence, 10 active working days were required to have passed‑ Charge‑sheet would be defective wherein clear days of working including intervening days, as festival holidays were not clarified.

Muhammad Shafique Qureshi for Applicant. Abdul Hadi Farid for Respondent.

The hon'ble labour Appellate Tribunal, on 20‑1‑1983, had directed the respondents to hold fresh enquiry in this matter within 2 months of the date of this order, if no enquiry is held within that specified period, petitioner will be entitled to re‑instatement with back benefits.

2. This decision came in the appeal, filed against the order of the Labour Court No. 4, who had directed the re‑instatement and His Lordship set aside the order, observing that, as the statement of clerk of Zaheer Ahmad is not found in the enquiry proceedings, the evidence of the witness cannot be read, as a contention, was that, the statement of the clerk, Zaheer Ahmed, has been inadvertently, left over.

3. Petitioner claims to be in permanent employment of the respondent Gut Muhammad Textile Mills, as Cone Winder, and was claiming to be the Member of the Managing Committee of the workers union, which is the C. B. A. and was dismissed due to these activities.

4. The domestic enquiry was conducted on the charge, that, he has remained absent from duty and it was ex parte enquiry.

5. The charge‑sheet, which was given to the petitioner, referred to two separate acts of misconduct. First related to the allegation of the absence of the petitioner, for period exceeding 10 days, with effect from 31‑7‑1981, and, second part referred to several absences from 15‑‑12‑1979 to 30‑6‑1981.

6. After this fresh enquiry is held, the petitioner again has come to challenge the dismissal order, on the ground, that, he appeared before the Enquiry Officer on 24‑1‑1983; enquiry did not proceed because Mr. Haji Farid, Manager of the Mill told that no enquiry will be conducted. Again he came on 2‑2‑1983, but he was not allowed the entry of his representative, his defence witnesses. And only he was allowed to appear but the written questions, which he gave to the Enquiry Officer, to be put on the prosecution witnesses, yet, there was no proper hearing, and, according to him, Mr. Asrarul Hassan, Mr. Zaheeruddin, and Mr. Feeroz Ahmed, and 3 clerks were present. Enquiry Officer recorded the statement of Zaheer and Feeroz, in his presence, but did not record the evidence of 3 clerks, in his presence, and, the proceedings were also conducted partially, by acting contrary to the procedure when, Mr. Asrar Ahmed was dictating the evidence, and, that became the record of the domestic enquiry.

7. However, petitioner, in the petition, has challenged that he had not committed any misconduct, by remaining absent on 31‑7‑1981, but Mr. Farid did not take him on duty and also contended, that, there were 3 festival holidays, on 2‑8‑1981, 3‑8‑1981 and 4‑8‑1981 and on 1‑8‑1981 and 8‑8‑1981, there was weekly rest.

8. The contention of the respondent is, that, the enquiry was conducted fairly, and, there was no violation of the rules of procedure, but, it is contended, that, the petitioner had applied for the change of Enquiry officer, which was allowed; petitioner was not allowed to be nominated by the dismissed employees, and, was disallowed the documents, which he presented by showing the statement of the witnesses recorded, in previous enquiry. The respondent also states, that, his absence was established and he was dismissed, as the petitioner has claimed on 6‑2‑1983, from service.

9. Petitioner, Mr. Khan Bahadur has examined himself; he has examined Mr. Ziarat Gul, who claims to be Vice‑President of C. B. A. elected on 5‑6‑1981 and Muhammad Gul, was also one of the employees of Gul Muhammad Textile Mills, and Ejaz Ahmed, who did not appear in the Court, and, Mr. Abdul Wajid Khan, was examined from the side of the respondent, as the Enquiry Officer, and, Mr. Abdul Hadi Farid, who holds the position of a Manager Administration, in the respondent establishment, and also holds the power of attorney on behalf of the Board of Directors. Besides, this oral evidence, there are number of documents, produced as Annexure 'A'. 'T', on behalf of the petitioner, and the documents, namely, enquiry report, and the statement of the witnesses of the respondents.

10. As there are two different versions, that, on 24th the petitioner was not allowed to enter in the factory, is correct, or it was the respondent, who was responsible for non‑entry of the petitioner, by which, the grievance of the petitioner is, that, the enquiry, in the manner, was conducted on 2nd, was not the enquiry according to law and the petitioner was seriously prejudiced to put up his case

11. To deal with the habitual absence of Khan Bahadur, of which he is charge‑sheeted, as misconduct, committed with previous background of warnings, though denied by him, I may mention here also, that, my learned predecessor had also decided the petition, allowing him re‑instatement and the observation was that, Khan Bahadur, petitioner, was not allowed an opportunity of putting up his case before the Enquiry Officer, and was also of the view, that, there was no independent enquiry. The matter went in appeal and was remanded on this ground, that, the statement of one of the witnesses was not in the enquiry proceedings and fresh enquiry be conducted, and the finding of the fresh enquiry is also of dismissal, but, preceding the fact of dismissal and independence of the Enquiry Officer, which has been challenged as well, it appears, that the General Manager, after the findings of the Enquiry Officer, issued the order of dismissal, without serving the copy of the enquiry report and the omission of personal hearing. The question secondly, will be, whether approval accorded by Mr. Haji Farid, General Manager, is the approval attracted by subsection (4) of Standing Order 15. Indeed, there is no dispute to his power, which is delegated to him, to direct the enquiry or to suspend employee or to (Jo any act, which concerns the management affairs, but whether, the power of according approval of dismissal, is the extraordinary power, vested only in the employer of the mill, which is the employer in real sense. The Court is of the view, that, this power of dismissal is vested in the real employer, who can either dispense with the enquiry or with the finding or to confirm, because it is he, who appoints the employee, and the relationship of master and) servant, taken in that sense.

12. So, this is serious defect in the dismissal. Mr. Haji Farid may have formed this impression, that, enquiry report and personal hearing is not necessary, but, in this context, I refer the case of Muhammad Younus v. Labour Appellate Tribunal, of 1984, page 381, which decision is also supported by other decisions and I refer in cases, before this Court.

13. It was held by His Lordship, which I quote:‑

"It stands established on higher authorities, that, employer is bound to supply the copy of the report, to the worker, before passing .final order, on the enquiry against him. Even, under Standing Order 15(4), the employer is under legal obligation, to supply the copy of the enquiry report."

14. And, His Lordship referred the case of Punjab Road Transport v. Labour Appellate Tribunal, and observed:‑

"It is held by the Supreme Court of Pakistan, that, not only the respondent should have been furnished with the copy of the enquiry report. but also should have been given an opportunity of show cause "

15. With these decisions, after examining the record of this case, I find that the dismissal order, issued hurriedly, shows, that, the management, having been fully aware of the law prevailing, did not B follow this provision, so also the approval of the employer is the important requirement, which was not followed and Mr. Haji Farid's position was no more than a Manager, not notified even as manager, under the Factory Act, for the purpose of invocation of the jurisdiction, as employer.

16. The second point, which has been emphasised, is, that, Mr. Khan Bahadur desired nomination of the worker, but, he was not allowed, simply on this ground, that, Muhammad Gul or Ziarat Gul, were the dismissed employees. There is no dispute to the proposition, by Mr. Haji Farid, that, the proviso is clear, to the effect, that, the worker should be in the establishment, for entitlement as the nomination of choice. In this context, I have seen the copies of the judgments, produced by Mr. Haji Farid of Muhammad Gul, and the dates are relevant. No doubt, that, dismissal has been confirmed by Sind Labour Appellate Tribunal, and the charge‑sheet, which was served in 1981, Mr. Muhammad Gul was in active service, of which, there were instances of absence, against Khan Bahadur and the last decision, which has been given in March, 1983, when, on 24th of January. Mr. Khan Bahadur was called with his witnesses, he was still contesting the appellate proceedings. The Court, therefore, is of the view, that, competency of the nomination of Muhammad Gul was not lost because the appeal was also the continuation C of the original proceedings, under challenge, and the charge‑sheet, which was served in 1985, Mr. Muhammad Gul had not severed relation. Therefore, the worker to be deprived of the choice, to put up his case, is justified, that, refusal was unwarranted and in this Court's opinion, I agree with him.

17. Apart from these legal defects, which are affecting the enquiry, as to the fairness, it is contended, that, the dates of hearing, which are relevant, were 24th January, 1983, 29‑1‑1983 and finally 2‑2‑1983, when the proceedings started. Mr. Khan Bahadur produced the questions along with the earlier statements and made such request of the change of the Enquiry Officer, and, requested for nomination.

18. I have examined the record very minutely, whether the witnesses of the petitioner Khan Bahadur, were not allowed, which was his grievance. The contention of the respondent is, that, he was delaying the matter, by request for change of Enquiry Officer, which was allowed and request for nomination was disallowed. And, then refer to the letter, that, the date of 29th, which was given by the management, was again changed to 2nd, and why it was so The letter of 27th I have read. The management has wrongly interpreted this letter, to show, that, Khan Bahadur himself delayed the matter, by asking for time. The context of the letter shows, that, he simply made prayer that, after the close of the prosecution,"' he should be given some time, to prepare his defence and unnecessarily, the date of 29th was changed to 2nd.

19. The next question now, will be, I whether on 24th, Mr. Khan Bahadur was present with his witnesses, he has clearly stated so. I refer to the certain extracts of the respondents witness Mr. Abdul Wajid Khan, who is the Enquiry Officer and Mr. Haji Farid, who is the General Manager. There are number of points, to take critical view, of the straightforward conduct of the management witness, for example, what has suited to them, they have replied and what has not suited to them, they have shown ignorance of the fact. It is not the question of negative assertion. It is said as follows:‑

"It is incorrect to suggest that Muhammad Gul, Ziarat Gul, Ejaz and Muhammad Rehman, were present, with the applicant. I know that the management did not allow their entry in the mill, as all the 4 said workers are dismissed workers. I also did not permit them to enter into the factory, apart from the management, which has written letter, that, 4 workers will not enter into the factory."

20. At the next place, Mr. Abdul Wajid says, that, I did not know that the applicant submitted medical certificate on 31‑7‑1981, though according to the supervisor, he has attended his duty on 30th July, 1981. I did not know, if the applicant was elected as the office‑bearer of the union. It is correct, that, we had received the application by post, for supplying the copy of enquiry proceedings and the enquiry report, but I did not supply to the applicant.

21. What Mr. Haji Farid has said, "it is incorrect to say that applicant attended duty on 31st July, 1981. It is incorrect to suggest that, applicant brought Social Security Certificate. I do not remember, if the applicant had weekly rest on 1st August, 1981. I do not remember, whether the mill was closed, due to the festival holidays, on 2nd, 3rd and 4th of August.‑It of correct, that, he attended duty on 5th, 6th, 7th and 8th. I admit that he was on medical leave, from 27th to 29th and on 30th of July, and was declared fit, on 31st July, for duty. The charge‑sheet was issued on 11‑8‑1981. We did not allow Muhammad Gul to sit as representative, and the applicant participated in the enquiry and produced the pre‑written statement of the witnesses. It is correct, that Muhammad Gul, Ziarat and Ejaz were in employment of the company. It is incorrect to say, that, Ziarat, Muhammad Gul and Ejaz had come at the factory gate, an they were not owe to enter into the mill.

22. With this background of the evidence, and minute examination of demenour of the witnesses, and to the quality of evidence, they have offered, there is difference between the evidence of Haji Farid and Mr. Abdul Wajid, who states, that, he did not allow witnesses to enter and Haji Farid states, that, they were not present at all. Although negative has been used, but the context, in the manner, they have given the answers, suggested very strongly, that, the witnesses had come on 24th and dates were being changed and, finally, on the second, they did not turn up, and, therefore, Khan Bahadur produced the written versions, of previous record. And, I see no reason, why they should remain absent. I see no reason, why 29th was changed. I see no reason, why the Enquiry Officer was changed, when there were clear directions of the Tribunal, for simply holding fresh enquiry. But, even if there was change, which shows the part of grace, still the responsibility of delay lies on the management. And quite clear, the ignorance of the fact that management did not know that Khan Bahadur was not the office‑bearer and they do not remember, cannot be the correct version, because, the questions put in the cross‑examination; clearly suggest that the management was fully aware, what was happening. For example, the question is put: Is it correct that office‑bearer and the applicant had given application in this Court, for acceptance of the change in the year 1981 The answer is that, the applicant filed appeal against the order of Registrar of Trade Unions, which was dismissed and there was also writ petition, to stay the elections. The obvious indication is, that, this fact of office‑bearers and the activities of the union, could not be behind the knowledge of the management. So, I am not satisfied that Khan Bahadur was given the fair chance of enquiry, when even, my predecessor;, in earlier order, had made observation.

23. As regards, the charge‑sheet, which is very important document, the managements shows his absence from 31‑7‑1981, for 10 days and other absences of the year 1979, onwards and the last is 30‑6‑1981.

24. In the first place, the previous instances of charge‑sheet must have been the basis of charge‑sheet, within one month of the allege cause of action, which has not been followed. At the most, it should be read as evidence, to show, the previous conduct, that, he was receiving warnings.

25. Regarding 10 days absence, which is the basis of charge‑sheet, from 31‑7‑1981, Khan Bahdur has explained, that, he was present on 31‑7‑1981 and there were 3 festival holidays, on 2‑8‑1981, 3‑8‑1981 and 4‑8‑1981 and on 1‑8‑1981 and 8‑8‑1981, there was weekly rest.

26. Mr. Haji Farid has explained in this manner:‑

"I do not remember, whether the mill was closed, due to festival holidays, on 2nd, 3rd and 4th of August, 1981. It is not true, that, he attended duty on 3‑6‑1978."

26‑A. By this answer, the Court finds, that, if Haji Farid is General Manager, he is not in a position to say, whether, the mill was closed on festival holidays, or not closed. His ignorance of the fact is not the straightforwardness, but, his own witness admits, that, on 2nd, 3rd and 4th of August, 1981, there were Eid festival holidays, in the mill, and, it was displayed on the Notice Board. Naturally, the notice must have been affixed with the consent of the General Manager, and more prominently, it is admitted by the witness, that, weekly rest days and the festival holidays are considered as leave and also admits, that, weekly rest day on August 1st, was the weekly rest day and the applicant was called to work overtime.

27. So, with this background, the Court is of the view, that, if it was leave, then, 10 days have not passed to show his habitual absence, in the active working days. Of course, the applicant has not explained what happened after 4‑8‑1981, but since 10 days had not passed, which is the main charge, of which he was to answer, the charge‑sheet is defective and it should be disclosed very clearly in the charge‑sheet, as to the clear days of working mentioning the intervening days, as festival holidays, which Mr. Haji Farid, General Manager himself was not sure.

28. So far Khan Bahadur is concerned, I also find that his record has also not been pleasant, by taking leave etc., and not produced satisfactory evidence, to show, that, from 31‑7‑1983, after 5th, he was on duty. But, his explanation is that, he was stopped on the gate, by issuance of letter which he has explained in para. 14. Similarly, he has denied, that, he had received any warning from the management, before 11‑8‑1981, when he was charge‑sheeted.

29. I have also further examined the Register of holidays, the column of absence has not given the clear indication of the years, he has remained absent, but the absence, which is the basis of charge‑sheet, for the purpose of this case, I hold, that, the charge of 10 days is not satisfactorily established, and, also, the previous instances of absence as pointed in charge‑sheet, whether was served within one month of the alleged cause of action. Similarly, clause (3) of Standing Order 15, is not attracted for omitting to mention festival holidays, and the weekly rests.

30. Finally, the legal defects are more prominent, to hold, that, the enquiry was not fair by the management, and so is the observation of also, my predecessor, in the earlier judgment.

31. Above all, the approval of the employer, and the omission to give the enquiry report and personal hearing are the serious departures, from the enquiry rules, and I find now, that, no purpose again will be served, by holding against enquiry, because each time the petitioner's version is that, the management is putting obstructions, in the proceedings. Although, this factual aspect of obstruction is difficult to be resolved, as the Presiding Officer is not present at that time, but the circumstantial evidence points out strongly, that, it is the fault of the management lower subordinates.

32. In the result, the application is allowed, for re‑instatement with back benefits, subject to this qualification that he will not be entitled for the period of absence, after availing the festival and weekly rest. But, if the leave is outstanding, in his account, the management can consider.

33. It may also be mentioned, that respondent has referred notification, in his course of arguments, regarding leave, what were the festival holidays, but the evidence has shown, that the witness of management has admitted that mill was closed on festival holidays, on 2nd, 3rd, and 4th August, 1981.

34. Finally, the arguments, regarding citation of rulings, given by the respondent, forms part of this judgment.

A. A.

Application allowed.

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