1. ' MRS. QAISER IQBAL, J.--- Appellant has resorted to file appeal under section 47(3) of Industrial Relations Ordinance, 2002 assailing the judgment, dated 20th September, 2003 in Grievance Application No,39 of 1997 under section 25 of Industrial Relations Ordinance, 1969 passed by Sindh Labour Court-IV, Karachi which was dismissed.
2. ' Appellant designated as Truck Tyre Builder is a skilled workman was employed by the respondent on the permanent job from the year, 1985. The appellant was monthly rated worker also paid in piece rate upon building tyre more than the fixed quantity, he was elected as Propaganda Secretary in the registered CEA Union in the year 1988-89 contested for the post of General Secretary lost election. The respondent-Management terminated the employment of the appellant on flimsy ground on 23-8-1990. He has resorted to filed grievance petition which was allowed but was dismissed by Labour Appellate Tribunal, Karachi in an appeal filed by the respondent, he was not taken on duty and was paid monthly wages for about 2 years. No work was assigned to him.
3. The appellant was called upon to sit in the security room. The appellant at the instigation of Abdul Majeed accompanied with supervisor Shakil and one Saudul Hassan CBA Union office-bearer visited the Manager of the factory namely Muhammad Ali, insulted, shouted upon the appellant issued a charge-sheet on 31st July, 1996 with mala fide allegations, inquiry was conducted by a professional Advocate an outsider, ultimately the appellant was dismissed on the basis of impartial inquiry. The appellant had resorted to file grievance petition for his reinstatement.
4. ' The respondent in the written reply raised manifold objections pleaded that the appellant's dismissal was not in connection with Industrial dispute. On 30th July, 1996 appellant along with Shakil Ahmed had entered office of Senior Manager used highly objectionable and un- parliamentary language tried to physically assault him therefore, he was charged-sheeted, after inquiry was dismissed from the service. The appellant's witness Saudul Hassan filed affidavit-in- evidence duly cross-examined on behalf of the respondent. Tariq Solat Manager Admin. Filed his affidavit-in-evidence and was cross-examined.
5. ' I have heard Mr. Shafiq Qureshi learned counsel for appellant and Mr. Mehmood Abdul Ghani learned counsel for respondent and also perused the record.
6. ' On account of the divergent pleadings, the parties were permitted to adduce the evidence, the appellant examined himself Mr. Saoodul Hasan, Mr. Izhar Ahmed Ansari from the Coastal Department, the respondent examined Tariq Soulat, Manager Administration documentary evidence was also brought on record by the parties on conclusion the Labour Court dismissed the grievance petition.
7. ' Mr. Muhammad Shafiq Qureshi, learned counsel for the appellant has contended that in the first round of litigation appellant was reinstated in service with full back benefits upon joining the service, the appellant was served with charge-sheet on 31-7-1996, for misbehaviour, reply was submitted found unsatisfactory, Syed Wahid Jaffery was appointed as Inquiry Officer, who was biased, his inquiry was based upon the mala fides. It is next urged that during the cross- examination of complainant Muhammad Ali, the Inquiry Officer rejected number of questions, determining the same to be irrelevant. In this context reliance has been placed on the case of Lateef Bano v. Messrs Crescent Domestic Garments Industries. (Pvt.) Limited 1992 PLC 302 and The Vice-President, (Admn ) National Bank of Pakistan and others 1996 SCM R 201, the dictum laid down is that it cannot be held that in every case in which Enquiry Officer is not examined, in support of the inquiry report, the same would be fatal led to the maintainability of the order passed pursuant to such an inquiry report. It would depend on the facts of each case. If there are serious allegation against the Inquiry Officer as to his impartiality and in support of such allegations, the accused employees has brought some reliable evidence before the first Court, it becomes incumbent on the employer to produce the Inquiry Officer in order to rebut the evidence brought on record as to the partiality of the Inquiry Officer. In the instant case nothing has been brought on record to indicate even remotely that the Inquiry Officer in question, in any way A was prejudicial or partisan.
8. In this view of the matter, it was not necessary to have examined Inquiry Officer.
9. ' The appellant was aggrieved of the order of the dismissal and had served the notice upon the Manager, Industrial Relations of the respondent. Learned counsel for the respondent has contended that the appellant has admitted that he was served with the charge-sheet and submitted his explanation that he used to work in Truck Tyre Building Department. In the cross- examination, the appellant has admitted that inquiry proceedings bears his signature, the Inquiry Officer has provided copy of inquiry proceedings and his statement was recorded before the Inquiry Officer. The allegations against the appellant were that he along with another employee of respondent Mr. Shakeel Ahmed entered into the office of the Industrial Relations, used filthy and objectionable language against him and physically assaulted him. No doubt, according to R.W.
10. Tariq Soulat, the appellant had participated in the inquiry proceedings at no stage the appellant had objected to the appointment of outsider as Inquiry Officer. It is persistently stressed by the counsel appearing for the appellant that appellant was victimized by adopting unnatural mode to conduct inquiry.
11. ' Learned counsel for the respondent has contended that the allegations levelled by the appellant are clearly misconceived, an exhausted charge-sheet was served upon the appellant, a reply was submitted, the allegations of the appellant that the copy of the complaint forming on the basis of charge-sheet was not provided to him is not a legal requirement as is laid down in unreported case. C.P. No,D-861 of 2000 Syed Ibra v. Sindh Labour Appeal Tribunal, so far as the question of non- examination of the Inquiry Officer before the Labour Court is concerned, his whereabouts were not known as such could not be produced before Labour Court. Non-examination of Enquiry Officer is not fatal to the case while the appellant in cross-examination when confronted with each page of the inquiry proceedings admitted his signature as well as signatures of his helper. The appellant was also admittedly provided copy of the inquiry proceedings yet he did not proceed to file any complaint against the biased/partisan Inquiry Officer nor any complaint in writing before the authority about the Inquiry Officer. Issue stands resolved in case of Mujahid Hussain Shah v. K.S.B.
12. Pumps Company Limited 1997 PLC 132, an Advocate appointed as an Inquiry Officer, the workmen participated in the inquiry, Honourable Supreme Court repelled the arguments to the appointment as Inquiry Officer held that it was legal and proper, subsequently followed by a Division Bench in C.P. No,127 of 1994 in High Court of Sindh (Mir Muhammad v. Sindh Labour Appellate Tribunal) thus, the objection of the appellant for appointment of an outsider as an Inquiry Officer was not sustainable. It is next urged by the learned counsel appearing for the appellant that second show- cause notice was not served leading to miscarriage of justice, which just not seems to be a legal requirement of law as was laid down by the Honourable Supreme Court reported in 1997 SCMR page 681, 1998 SCMR 1352, PLD 1981 SC 225 and 1999 SCM R 1237.
13. ' To the extent and scope of examination of inquiry proceedings, the consistent view of this Court as well as of the Supreme Court of Pakistan is that it was not open for Labour Court to re-examine and re-appreciate evidence recorded in domestic inquiry and come to the conclusion contrary to that taken by the Inquiry Officer.
14. ' Adverting to the next contention of the learned counsel for the appellant that the act of the appellant does not come within the purview of misconduct. Misconduct as construed under the law in terms of section 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 reads as under:-- "15(3). The following acts and omissions shall be treated as misconduct:--
(a) willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) willful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous to disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (i);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(1) go slow."
15. ' The word "misconduct" means improper conduct of an employee, the acts and omissions listed in Standing Order 15 the Ordinance, 1968 are illustrative because any act which is prejudicial to the good discipline could form the disciplinary action as laid down in 1999 SCMR 779. It is urged by the learned counsel for the appellant that the signatory of the reply statement Muhammad Ali was not examined before the Labour Court, defence of the management is liable to be struck off.
16. Unfortunately, the signatory of the reply statement died during the pendency of the litigation, on behalf of the Management Mr. Tariq Soulat, appeared as a witness, the grievance of the appellant was that after his reinstatement in service the Management had not employed him per job description as Truck Tyre Builder, whereas the job assigned to him was lighter in nature and that for six months, he was allowed to sit in the Security Office of the Establishment.
17. ' The examination of Muhammad Ali signatory of the reply statement and Inquiry Officer was not necessary in the present case as Mr. Tariq Soulat was competent to appear on behalf of the employer and was fully cross-examined. The ground agitated by the appellant appears to be misconceived that charge-sheet was not in conformity with law as a matter of fact appellant has submitted reply of the charge-sheet. It was not open to the appellant to plead with copy of the plaint forming the basis of charge-sheet was not provided to him. The issue stands resolved by Division Bench in C.P. No,D-861 of 2000 (Syed Ibrahim v. Sindh Labour Appellate Tribunal) as well as reported in 1987 PLC 987 that supply of a copy of plaint following basis of the charge-sheet was not legal requirement of law therefore, objection is misconceived. The whereabouts of the Inquiry Officer Were not known, therefore, Management before the Labour Court had pointed out this factum, resulted in non-cross-examination before the Labour Court. It is an admitted fact that appellant was supplied copy of inquiry proceedings and he had not filed a written complaint against Inquiry Officer alleging that his statement was not recorded fully or verbatim. Adverting to the next issue urged by the learned counsel for the appellant that second show-cause notice was not served upon the appellant leading to miscarriage of justice. The consistent view of the Honourable Supreme Court of Pakistan is to the effect that issuance of second show-cause notice is not a legal requirement as laid down in 1984 SCM R 143 and '1999 SCM R 1237. It is pertinent to mention that material before the Inquiry Officer was sufficient to establish the charge and such finding cannot be substituted without any tangible material. The Labour Court was required to appreciate whether proper opportunity was provided to implead employee to defend himself and whether Inquiry Officer had conducted inquiry proceedings in a proper and fair manner, finding of Inquiry Officer could only be substituted if it was arrived out to misreading of the evidence or to become perverse. As a matter of fact material questions were allowed to be put by the appellant to the witness therefore, no prejudiced was caused to the appellant's case.
18. ' In any view of the matter, no case is made out, impugned judgment passed by the Labour Court does not warrant interference. As a result whereof on account of the above discussion, appeal merits no consideration hereby stands dismissed with no order as to cost.