1. ' MUHAMMAD NADIR KHAN, J.---This common judgment shall dispose of Review Applications Nos.1 of 2005, 2 of 2005, 3 of 2005 and 4 of 2005 filed in Labour Appeals Nos.14 of 2005, 15 of 2005, 16 of 2005, 17 of 2005 respectively along with Labour Appeals Nos.2 of 2006, 3 of 2006, 4 of 2006, 5 of 2006, 6 of 2006, 7 of 2006, 8 of 2006 and 9 of 2006 involving similar facts, common law points' and are outcome of the show-cause notice, dated 8-4-2000 issued by the Branch Manager Plant of the appellant (hereinafter referred to as the company) to the respondents (hereinafter referred to as the workers) which reads as under:-- "It has been noticed that you are indulging in the affairs of the management and are acting in disorderly manner while leaving the place of duty during working hours, opening the office of Plant Manager and sitting therein, jointly and collectively without observing office discipline and also misusing the official Telephone for private purposes and taking away Official Files and important official papers from the Plant Manager's Office and also taking tea, smoking cigarettes while sitting in the Plant Manager's office during working hour. You have indulged in the affairs of the management, while removing the following workers from their duty places as managed by the production department. {{TABLE}} Name Code No,
(1) Sheikh Jaweed Elahi 37
(2) Syed Mansor Ali 59
(3) Mushtaq Ahmed 29
(4) Badar Zaman 15 {{TABLE}} ' Without permission of the Manager and forcing them to appoint and carry work in Quality Control Department against the wishes of the management which is a gross misconduct. You are disrespectfully ignoring the warning, whereas you are extending threats to the factory management, thus your actions are subversive of discipline, therefore, you are jointly and severally called upon to submit explanation to the above charges with 72 hours thereof failing which disciplinary action will be taken against you according to law."
2. ' The workers submitted their reply, denying the allegations. Simultaneously they asked for the supply of copy of report on the basis of which show cause notices were issued and reserved their right to submit their detailed reply. The company thereafter issued termination letter, dated 31-8- 2000. The workers being aggrieved by their termination, served the company with grievance notices issued by each of them individually but on failure of the company to redress their grievance by reinstating them, filed grievance applications under section 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the IRO, 1969) before Presiding Officer Third Labour Court Balochistan at Hub (hereinafter referred to as the Labour Court). Their applications were dismissed by means of order, dated 30-3-2002 with following observations:-- "The applicant miserably failed to prove that the strength of workers at the time of termination of his service was more than 50 in number. The provision of S.0.15 (4) of Standing Orders Ordinance, 1968 are therefore not applicable and the respondent is not legally bound to hold enquiry etc. Before terminating the applicant from service."
3. ' The workers being aggrieved by the dismissal of their grievance application filed appeals under section 37(3) of IRO, 1969 which were disposed of by means of order, dated 9-12-2003 as the counsel for the parties conceded that the evidence available on the record reflects that when aggrieved workers were removed from service the number of workers of the establishment was more than 50, therefore, the impugned order was not supported by the company. Accordingly, the order, dated 31-8-2000 was set aside. The workers were ordered to be reinstated with effect from 31-8-2000. However, the company was allowed to hold fresh enquiry in the matter, if so desired.
4. ' Record reflects that the workers in pursuance of the order, dated 9-12-2003 of this Court approached the company by means of application, dated 13-12-2003 for their reinstatement in terms of order, dated 9-12-2003 passed by this Court. The company thereafter issued reinstatement order, dated 6-2-2004 which reads as under:- "Reinstatement order ' We refer to the order of the Honourable High Court of Balochistan Quetta, in the Labour Appeal No,11 of 2002, dated 9-12-2003, whereby it was directed to reinstate you in the service of Company.
5. ' We hereby take you in the employment of the Company from the date of your reporting for employment and hereby posted at our transit Ware House, SF Unit No,87 SITE Karachi from the date of your joining, in accordance with Clause No, 6 of your appointment letter, dated 1-12-1992, and on the same terms and conditions .
6. ' You are further directed to report to Mr. M. Farooq Kalia. Assistant Manager Dowood Yamaha Transit Ware House, SF Unit No,87 SITE Karachi with immediate effect. Please note that if you failed to report to Mr. M. Farooq Kalia, Assistant Manager Dawood Yamaha Transit Ware House, SF Unit No,87 SITE Karachi for duty within one week time, we will not be obliged to 'take you in the employment of the Company."
7. ' The workers did not accept their reinstatement in the above terms and served the company with grievance notice, dated 16-2-2004 issued by them individually wherein they prayed as under:-- "I, pray to your goodself to send me the payees account cheque or pay order in the sum of Rs,3,14,878 for the wages etc., till 9-12-2003 and Rs,19,800 towards the monthly wages till 28-2-2004.
8. ' I further pray that I be reinstated on the machine job on which I was employed at G.H. Ltd. HUB plot No,C-300 to C-294, in compliance of the Order, dated 9-12-2003 passed by Honourable High Court, Quetta ()."
9. ' The company refused to redress the grieBalochistan vance of the workers which led the workers to file Grievance Applications Nos.33, 34, 35 and 147 under section 46 of IRO, 2002 with following prayer:- "It is, therefore, prayed that this Honourable Court may be pleased to set aside ANN.C/3 and restore the status quo ante termination and be further pleased to direct the respondent to put the applicant back in the same job and under the same terms and conditions of work and employment with payment of all rights, privileges, wages and benefits from the date of illegal removal i,e, 31-8-2000 in the interest of justice.
10. ' Any other relief/benefits deemed fit and proper in the circumstances of the case be also allowed with cost throughout.
11. ' Ad interim orders for payment of current wages, wages and benefits, all rights and privileges from the date of removal, i,e, 3.1-8-2000 be granted in the interest of justice."
12. ' The company resisted the application by filing of reply. The workers filed their affidavits, they were cross-examined by the company and no evidence was produced in rebuttal. The applications were disposed of by means of judgment dated 21-5-2005 with following observations:-- "In view of above discussion I am of the considered opinion that the applicant is entitled to receive the wages, benefits as provided under the Law as ordered by the Honourable High Court of Balochistan, dated 9-12-2003, from the date of his reinstatement with effect from 31-8-2000 till the order, dated 9-12-2003, passed by the Honourable High Court of Balochistan as after rejoining his service and conducting a fresh enquiry, once again the applicant was removed from his service on 30-6-2004 and that matter is also pending before this Court.
13. ' Needless to add here that the observations made herein above, qua the other matters pending before this Court are purely tentative in nature which shall not affect the matters pending before this Court which shall be decided on their own merits.
14. ' In view of above mentioned facts and circumstances of the case application filed by the applicant is partly accepted and respondent is hereby directed to pay him wages, benefits and privileges in accordance with law from the, date of his removal i,e, 31-8-2000, to the date of order on 9-12-2003, passed by the Honourable High Court Balochistan.
15. ' Application filed by the applicant is disposed of accordingly, the parties are left to bear their own costs."
16. ' The company challenged the above judgment by filing of Labour Appeals Nos.14 of 2005., 15 of 2005, 16 of 2005 and 17 of 2005 which were disposed of with the consent of the parties vide order dated 18-10-2005 which reads as under:-- "Mr. Abdul Samad Advocate. Mr. Shafiq Qureshi Advocate.
17. ' This appeal under Section 47(3) of I.R.O. Is directed against the order, dated 21-5-2005 passed by 3rd Labour Court Balochistan at Hub, whereby the appellant/company has been directed to pay the wages of the respondent/worker w,e,f, 31-8-2000 till 9-12-2003.
18. ' The relevant facts for disposal of this appeal are that during earlier round of litigation the worker filed appeal before this Court against the dismissal of his grievance application filed before the 3rd Labour Court Balochistan at Hub, against the order of termination of his service. The appeal filed by the respondent/worker was allowed by this Court vide order, dated 9-12-2003 with following observation:--- "During the course of arguments after going through the evidence/statements of the parties the learned counsel for the respondent fairly conceded that from the evidence available on the record it transpires that when the appellant was terminated the number of workers of the Establishment was more than fifty, therefore, he does not support the impugned order. Hence he expressed his no objection on setting aside of the impugned order as well as the termination order. However, request is made for remand of the matter for fresh inquiry by the respondent.
19. ' Mr. Shafiq Qureshi, the counsel for the appellant expressed his no objection for remand of the matter to the respondent for fresh inquiry subject to setting aside of the termination order and reinstatement of the appellant.
20. ' Talking into consideration the above submissions made by the learned counsel for the parties, the termination order, dated 31-8-2000 is set aside with the consent of the parties. Resultantly the appellant is reinstated w,e,f, 31-8-2000; however, the respondent shall be at liberty to hold fresh inquiry in the matter if so desired. The impugned order dated, 30-3-2002, accordingly is set aside and the appeal is allowed, with no order as to cost."
21. ' After passing of the above order the company held fresh inquiry and the services of respondent/worker has again been terminated w,e,f, 30-6-2004, however before passing of the order of termination, the respondent/worker filed application for compliance of order of this Court with prayer for payment of his wages for the period from 30-8-2000 till passing of the order, dated 9-12-2003 and also future salaries.
22. ' The said application was resisted by the company, however Labour Court allowed the application partially as the company has been directed to pay the wages of the respondent/worker from 31-8- 2000 to 9-12-2003 and further wages after passing of the order of this Court has been made subject to the disposal of the grievance petition filed against the termination of the applicant in result of fresh inquiry.
23. ' The counsel for the appellant who made an attempt to make out a case for refusal of wages for the period which has been allowed by Labour Court but on facing difficulty in said regard came up with plea that company may be allowed 15 days time to pay the wages of the respondent/worker, for the period from 31-8-2000 to 9-12-2003 and the appeal is not pressed on merits.
24. ' Counsel for the respondent expressed his no objection on the above plea.
25. ' Accordingly with the consent of the parties the order, dated 21-5-2005 passed by 3rd Labour Court Balochistan at Hub is upheld and the company is allowed to pay the wages to the respondent/worker within 15 days by depositing pay order in the Labour Court for the amount payable to respondent/worker for the period from 31-8-2000:to 9-12-2003.
26. ' Appeal accordingly stands disposed of with no order as to cost."
27. ' The Company thereafter filed Applications Nos.1 of 2005, 2 of 2005, 3 of 2005 and 4 of 2005 for review of above order.
28. ' The company during pendency of above proceedings served the workers with show-cause notice dated 10-11-2004 which reads as under:--- "SHOW CAUSE ' You were posted at our transit warehouse S.F. Unit 87 SITE Karachi and was directed to report to Mr. Farooq Kalia Assistant Manager vide our letter, dated 6-2-2004, but as per information from Mr. Farooq Kalia you have not reported for duty and remaining absent without intimation or information, which is a gross misconduct.
29. ' Your absence from the .Duty is more than ten days. You are advised to submit you explanation to this show-cause notice within three days from the date of the receipt of this letter, failing which the proper legal action will be followed in accordance with law.
30. ' Since you have not reported for duty as directed, therefore, no enquiry can be held against you in terms of the order, dated 9-12-2003. Unless you submit to the power/authority and jurisdiction of the employer, we cannot hold the enquiry as directed by the Honourable High Court, Quetta. The question of back benefits cannot be ascertained and determined as claimed by you. The back benefits are subject to the result of the enquiry, please note."
31. ' The workers submitted their reply, dated 24-4-2004 claiming that in terms of the order passed by this Court the workers were to be posted/reinstated at the place where they were employed at the time of removal from service. The company considering the reply of the workers dissatisfactory, issued enquiry notices, dated 18-5-2004, which were duly replied by the workers on 21-5-2004. The workers resisted the enquiry proceedings and they allegedly did not participate in the enquiry proceedings which were conducted ex parte, whereafter enquiry report, dated 2-6-2004 was submitted wherein the enquiry officer held that the workers remained absent for more than ten days, the charges levelled against them under the Standing Order, 15(3)(e) have been proved and action as per law was recommended against the workers. On the basis of enquiry report workers were dismissed from service by means of dismissal order, dated 30-6-2004. The workers thereafter served the company with grievance notices dated 17-7-2004 issued by them individually and thereafter filed Grievance Applications Nos.165 of 2004, 166 of 2004, 168 of 2004 and 171 of 2004 before the Labour Court. The company resisted the application whereupon the parties were called to lead evidence in support of their respective pleas. The workers filed their affidavits and they were cross-examined by the company. In rebuttal the company filed affidavits of Yousaf Memon Senior Manager Administration, Muhammad Anees and Irshad Ali Plant Managers. They were cross- examined by the workers. The learned Labour Court concluded the proceedings by means of order, dated 31-12-2005 whereby the applications filed by the workers for their reinstatement have been allowed and the company has been directed to reinstate them in service with full back benefits in accordance with law. The company being aggrieved by the order of reinstatement of the workers filed Labour Appeals Nos.3 of 2006, 6 of 2006, 7 of 2006 and 8 of 2006.
32. ' The company simultaneously in continuation of show-cause notice, dated 8-4-2000 and the order of this Court, dated 9-12-2003 issued enquiry notices, dated 7-64004 which were replied by the workers on 14-6-2004. However, the enquiry was conducted during which Aamir Mirza was examined as complainant while Abdul Majeed, Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were examined as witnesses. The workers allegedly disappeared in the middle of the enquiry. The enquiry officer submitted his report and observed as under:- "I have gone through the statement of complainant and his witnesses. The following points are clearly established.
33. ' Amir Mirza complainant gave his statement as stated into the charge sheet and Mr. Ahmed Mujeebuddin corroborated his statement about the misconduct of Abdul Hameed and others whilst the four workers who gave same statement that they were transferred illegally by Abdul Hameed and others by force and under threat.
34. ' In the circumstances I have no hesitation to accept the statement of complainant and his witnesses and come to the conclusion that charges levelled against Mr. Abdul Hameed are proved and he is guilty of misconduct contained in the show-cause notice, dated 8-4-2002".
35. ' In pursuance of the enquiry report dismissal orders, dated 30-6-2004 were issued. The workers served the company with grievance notices but the company did not withdraw the dismissal order whereupon Grievance Applications Nos.165 of 2004, 168 of 2004, 169 of 2004 and 171 of 2004 under section 46 of the IRO, 2002 were filed before the Labour Court which were contested by the company by filing of written reply. The workers thereafter filed their affidavits and were cross- examined by the company. In rebuttal the company examined Muhammad Anees Manager, Abdul Hameed Lasi Senior Manager Human Resources, Muhammad Yousaf Memon Senior 'Manager Administration, Shameel Javed Deputy Manager, and Irshad Ali Manager, who were cross- examined by the workers. The learned Labour Court concluded the proceedings by means of judgment, dated 31-12-2005 whereby the company has been directed to reinstate the workers in service with full back benefits in accordance with law. The company challenged the judgment, dated 31-12-2005 passed in Grievance Applications Nos.165 of 2004, 168 of 2004, 169 of 2004 and 171 of 2004 by filing Labour Appeals Nos.3 of 2006, 6 of 2006, 7 of 2006 and 8 of 2006.
36. ' Mr. Abdul Ghani counsel for the company argued that the learned Labour Court not only misappreciated the evidence but ignoring the law passed orders for reinstatement of workers with back benefits. According to the learned counsel for the company the workers against whom the charge of misconduct was levelled were involved in unfair labour practices and they deliberately did not participate in the enquiry proceedings. The workers taking benefit of the said fact got themselves reinstated by this Court vide order, dated 9-12-2003 and thereafter again adopted delaying tactics and despite their reinstatement they did not join the duty and also refused to accept the order of reinstatement, they remained absent for more than 10 days, whereupon enquiry proceedings were conducted as per law which proved the charge of their wilful absence.
37. The company in pursuance of the order of this Court, dated 9-12-2003 conducted separate inquiry about the allegations made against the workers in show-cause notices, dated 8-4-2000 and the said enquiry proceedings which too were in accordance with law and the workers having no defence left the enquiry proceedings in the half way and did not produce any defence while the charge of misconduct as alleged in the show-cause notice, dated 8-4-2000 was proved which resulted in their dismissal from service. The trial Court ignoring the enquiry proceedings without recording of any reason reinstated the workers while grant of back benefits to the workers is also illegal as the workers did not produce any evidence that they remained jobless after their removal from service till finalization of the proceedings before the Labour Court.
38. ' Counsel for the company resisted the judgment, dated 21-5-2005 contending that the Labour Court erred in granting back benefits without examining the issue about workers' wilful refusal to join their duty despite their reinstatement. Learned counsel for the company further argued that as per order-sheets, dated 29-1-2005, 12-2-2005, 5-3-2005, 19-3-2005, 2-4-2005, 11-4-2005 the Applications Nos.33 of 2004, 34 of 2004, 35 of 2004 and 171 of 2004 were to be disposed off along with connected applications but abruptly on 21-5-2005 the applications were allowed and the company was directed to pay back benefits to the workers. According to the learned Counsel for the company the dismissal order of the workers could not be set aside merely on the ground that second show-cause notice was not issued to the workers as the same was not legally required. The learned counsel further argued that the workers failed to prove the allegations of mala fide on the part of the company for their removal from service. It was also argued by the counsel for the company that the affidavits in evidence filed by the workers do not meet the legal requirements.
39. Besides, the applications of the workers before Labour Court were not maintainable as the workers claiming to be office-bearers were to approach NIRC in terms of section 49(4)(e) of IRO, 2002, learned counsel for the company supported his arguments by following case-law:- ' AIR 1986 SC 995, SBLR 2004 Balochistan 960, NLR 1996 Service 11, L.A. No,227 of 2004 Karachi High Court PLD 1967 SC 367-372, 2005 PLC 449, 1996 SCM R 201-213, 2001 SCM R 931, PLD 1987 SC 207, 1982 SCM R 651, 1992 PLC 415, 1992 SCMP 2169, 1982 PLC 365, 1990 PLC 643, 1987 PLC 23, 1962 PLC 528, 1993 PLC 304, 1972 PLC 83, 1986 PLC 1158, 2004 TD Lahore 180, PLD 1982 SC 460, PLD 1981 SC 225, 1981 SCM R 631, 1988 SCM R 1352, 1997 PLC 132, 1999 SCM R 734, PLD 2003 SC 952, NLR 2000 Labour 952, SBLR 2004 Sindh 1565, 1978 SCM R 212, 2004 PLC 293, 1995 PLC 675, PLD 1986 Kar. (sic), 1988 P.Cr.L.J. 2347, 2004 CLC 77, AIR 2004 Delhi 64, 2004 SCM R 1308, 2004 PLC 155 and PLD 1990 SC 1.
40. ' Mr. Muhammad Shafiq Qureshi counsel for the workers supported the impugned judgments/orders and argued that the very basis for initiation of action, i,e, show-cause notice dated 8-4-2000 was mala fide. The charge was not specific. Company without adopting the proper course terminated the services of the workers the termination order being illegal were set aside by this Court vide order, dated 9-12-2003 and the company did not initiate any enquiry for more than six months, which could be initiated at the best within one month of passing of the order. According to the learned counsel the company tried to dispense with the services of the workers on fictitious ground that the workers did not join duty despite their reinstatement, but the reinstatement order was in fact an offer for fresh appointment which the workers did not accept and their such act could not be termed as refusal to join duty. The learned counsel for the workers argued that the order, dated 9-12-2003 passed by this Court was not complied by the company which by itself is enough to reflect on the mala fides. The company initiated the enquiry proceedings only after the workers pressed for their reinstatement in terms of order of this Court.
41. The enquiry proceedings about their wilful absence as well as misconduct in terms of show-cause notice, dated 8-4-2000 were conducted in an illegal manner. The workers were not afforded proper opportunity to defend themselves. The conduct of enquiry officer was partial and he was favouring the company which is apparent from the enquiry proceedings itself. Learned counsel for the workers argued that when the workers were not reinstated as per order of this Court, they cannot be said to have absented themselves from duty. Similarly, the company failed to establish the charge levelled in the charge sheet, dated 8-4-2000 as the Company failed to bring. On record any material about workers being involved in tampering of the record or misuse of telephone as neither any record tampered by the workers nor telephone bills were produced before the enquiry officer. Similarly, no document was brought on record to show that the workers named in the show-cause notice were transferred from one section to the other section. Above all the record of production for the said period was also not produced to prove that the act of workers slowed the manufacturing process. Learned counsel for the workers while labelling both the dismissal orders as illegal contended that the services of the workers were terminated on 30-6-2004 while they have not been paid their dues after 8-4-2000 and for the intervening period they were entitled for their wages which the company has withheld illegally. The learned counsel finally came up with alternate plea that if the company is of the view that the services of the workers cannot be restored on account of differences between the parties then the option left to the company is to pay the workers their back-benefits with compensation in lieu of their reinstatement as provided by section 46(5) IRO. Counsel for the workers in support of his arguments placed reliance on the following judgment:--- ' 1992 PLC 45, 2002 PLC 274, 1960 PLC 201, 1990 PLC 80, AIR 1986 SC 995, 2005 PLC 36, NLR 1996 Service 11, PLD 1967 SC 367, 2005 PLC 449, 1996 SCM R 201, 2001 SCM R 931, PLD 1978 SC 927 and 1982 SCM R 651.
42. ' Submissions made by the learned counsel for the parties considered. Record of the case perused.
43. As already stated the basis of the action in all the three cases was the show-cause notice, dated 8-4-2000 referred to hereinabove on the basis of which the services of the workers were terminated on 31-8-2000 but the said termination order was set aside by this Court vide Order, dated 9-12-2003 and the workers were ordered to be reinstated. Further, the company was allowed to hold enquiry about the allegations made in the show - cause notice, dated 8-4-2000 and the company before initiating enquiry about the allegations of show-cause notice, dated 8-4-2000, issued second show-cause notice to the workers on 24-4-2004 wherein the workers were alleged to have remained absent from duty for more than ten days as after their reinstatement on 6-2- 2004 they did not join duty and on said charge enquiry was initiated. Simultaneously, another enquiry was also ordered to be held about the allegations of show-cause notice, dated 8-4-2000 and in result of both the enquiries two separate dismissal orders, dated 30-6-2004 were issued stating that the workers were found guilty of misconduct as well as for remaining absent for more than ten days.
44. ' Before going into the allegations made in show cause, dated 8-4-2000, I deem it appropriate to examine the allegations about workers' absence from duty for more than ten days after their reinstatement on 6-2-2000. It has already been stated that after termination of service of workers on 31-8-2000 they were reinstated with back benefits by this Court vide order, dated 9-12-2003. The workers filed application for their reinstatement on 13-12-2003, in response to which the company issued letter, dated 6-2-2004 which on bare perusal reflects that the workers were not reinstated.
45. They were rather taken into employment of the Company from the date of their reporting for duty.
46. Furthermore, they were posted at different stations, Muzaffar Ahmed was directed to report at Dawood Yamaha Assembling Plant Uthal. Abdul Hameed was directed to report to M. Farooq Kalia Assistant Manager Dawood Yamaha Transit Ware House Karachi, Ghulam Haider was to report at Regional Service Office Multan and Abdul Rasheed was directed to report at Regional Service Office Quetta. The said order further stated that the said offer is valid only for one week, whereafter the company would be not obliged to take them in employment.
47. ' The above referred order while cannot be termed as order of reinstatement, it is also found to be not allowing the workers to join their duty which they were performing at the time of termination of their, services which in my view is not compliance of order of this Court, dated 9-12-2003. In a case of similar circumstances the High Court of Sindh at Karachi in Labour Appeal No,227 of 2004 where the worker was ordered to be reinstated in service though was reinstated, but was not allowed to occupy his office from which he was removed. His reinstatement was held to be not in compliance to the order about his reinstatement. The relevant observations in said regard read as under:-- "It is an admitted position that the respondents after the .Order of this Court issued a letter to the applicant for reinstating him in the service. The said letter reads as under:-- ' Reference No, MAZ/2005/1 May 7, 2005 ' Mr. Abdul Rehman Baloch, D-17, Block-L. North Nazimabad, Karachi.
48. Subject: Letter of reinstatement.
49. ' In complete compliance of orders passed by the Hon. Sindh High Court in Labour Appeal No,227 of 2004 you are informed as follows:
(1) You are reinstated in service.
(2) Since at present we are not able to find a job in Karachi appropriate to your qualifications and experience, you are not required to come to office till further orders you will be treated on duty and your emoluments will be paid in accordance with your terms 4nd conditions of employment.
(3) Position of your emoluments, dues, liabilities shall be separately communicated to you in due course of time.
50. ' For EMMAZED publications private limited.
51. (M.K. Lodhi) Personnel Officer.
52. ' From the above letter, it is clear that the applicant was reinstated in service but he was not allowed to occupy his office from which he was removed. The question is whether in the above circumstances the letter issued by the respondents is the compliance of the order of the Court?
53. The word "reinstate" has been defined in the Black's Law Dictionary as under:-- "Reinstate. To install; to re-establish, to place again in the former state, condition, or office, to restore to a state of position from which the object or person had been removed."
54. ' It appears that the applicant has not been restored to his original position or office from which he was removed. At the time of dismissal from service, the applicant was working as sub-editor with the respondents. After reinstatement, the respondents should have posted him as sub-editor, the post from which he was removed. As such, it appears that the compliance of the order has not been fully made in the circumstances of the present case."
55. ' Having in view the order, dated 9-12-2003 passed by this Court and the order of reinstatement, dated 6-2-2003 I have no hesitation to hold that the workers were not reinstated as directed by this Court. Hence, they cannot be said to have failed to join their duty after having been reinstated. In such view of the matter the action taken against the workers on the ground that they did not join their duty and remained absent for more than ten days after their reinstatement order, dated 6-2- 2004 cannot be validated, therefore, without going into the enquiry proceedings and the action taken in pursuance of the same it would be suffice to observe that the dismissal of workers on the ground that he remained absent for more than ten days, without his proper reinstatement in terms of order, dated 31-8-2000 was without any foundation and the dismissal order on said ground was illegal.
56. ' Adverting to show-cause notice, dated 8-4-2000 according to which the workers were alleged to be indulging in the affairs of management and acting in disorderly manner, they allegedly left the place of duty during working hours and opened the office of Plant Manager wherein they allegedly, tampered with the files, they were found taking tea, smoking cigarettes and misused the telephone. Further they removed the workers from the place of their duty and were appointed in other departments against the wishes of Management. The above acts of the workers were alleged to be gross misconduct. As already stated the earlier order of termination of service of the workers on the basis of show-cause notice, dated 8-4-2000 was set aside by this Court vide order, dated 9-12-2003 and the company was allowed to hold fresh enquiry if so desired. The company left the matter unattended till issuance of the enquiry notice, dated 7-6-2004 and meanwhile initiated enquiry about absence of workers from duty who were statedly reinstated on 6-2-0004, but as already held the workers were never reinstated, they were rather offered fresh appointment which they did not accept, therefore, they have not been held guilty of the charge of being absent D from duty for more than ten days. The company after initiating the enquiry about absence of worker issued enquiry notice, dated 7-6-2004 for holding enquiry about the charge of misconduct levelled by show-cause notice, dated 8-4-2000. The workers though raised number of objections about the enquiry proceedings which were not entertained by the Enquiry Officer, and they were not allowed to defend themselves through Anwar Minhas as he was stated to be not co-worker. However, the Enquiry Officer proceeded with the matter, by reading the charge, which was denied by the workers, whereafter Aamir Mirza who was stated to be the complainant was examined, he deposed that the reason for issuance of show-cause notice was that workers being office-bearers of the Union had paralysed the management. He further stated that the workers and the other office- bearers of the Union used to occupy the office of Plant Manager where they used to smoke cigarettes and made alterations in the tiles. They also used to forcibly take the files from the Admin Office, they took charge of the production and did not allow the Line Incharge to look after the line.
57. They used to transfer the workers from one machine to other. According to the complainant all this was being done to pressurize the management to accept the Charter of Demand which was under negotiations and he alleged that the telephone was used for their personal matters and no body was to question them as they used to misbehave and abuse. The complainant was cross- examined by the workers who felt aggrieved by the conduct of the complainant as well as the Enquiry Officer as the complainant instead of replying his questions avoided the same stating it to be irrelevant and the Enquiry Officer also did not allow the workers to get answers from the complainant. According to the observations recorded by the enquiry officer the workers left and they did not return even after one hour. Thereafter, ex parte proceedings were carried during which witnesses namely, Mujeebuddin, Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were examined. The substance of their evidence is that Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were transferred by the workers from one Department/Section to the other. However, no documentary evidence whatsoever was brought on record by the management to support the allegations about tampering of the record or misuse of telephone, and the management also did not produce the Charter of Demand which the workers being office- bearers of the Union intended to get signed from the management by adopting coercive methods as alleged by the complainant Aamir Mirza. The evidence collected by the Enquiry Officer at the best reflects that four workers were transferred from one Department to the other, but no evidence was brought on record to show that the said transfer resulted in any loss to the Company or that the said transfer was of such nature because of which the manufacturing process was hampered.
58. It would be not irrelevant to observe that the company did not produce the record i,e, attendance sheet of different sections to support the ocular evidence bout transfer of four workers by the office-bearers of the Union, i,e, workers from their section where they were appointed by the management. In such circumstances the said allegation is found to be also doubtful, however if even it is believed hat 4 workers were transferred by the company from one department/section to other then too the said act cannot be said to be prejudicial to the company as no loss was caused to the Company by said transfer and there is no evidence that the Company ever objected to the same. In such view of the matter the said transfer cannot be considered to be misconduct as - defined in Standing Orders. Section 15. The charge put forth through show-cause notice, dated 8- 4-2000, therefore, remained doubtful and the workers, therefore, could not be dismissed from service by holding them guilty of misconduct, at this juncture,. I feel to observe that normally the labour Court and the appellate Court cannot substitute the findings of enquiry officer by reappraisal of the eviderice recorded during enquiry merely on the ground that a view contrary to one taken by enquiry officer can be arrived, but if the finding of enquiry officer is found to be on account of misreading and the enquiry officer has misconducted or the findings are contrary to record can be substituted by Labour Court or the appellate Court. In the present case at first instance no finding has been recorded and the enquiry officer after giving he substance of the evidence directly recorded his opinion without supporting it by any reason and such opinion in view of the evidence, referred to hereinabove cannot be agreed and action taken on such opinion cannot be given any weight. Besides, it would be not irrelevant to observe that not only the enquiry report was improper, the enquiry proceedings also reflect on impartiality of enquiry officer for forming of such view, I am persuaded by the endorsement made by worker Muzaffar Ahmed at the time of making his statement under the statement of Mushtaq Ahmed. The endorsement reads as under:-- {{URDU TEXT}} ' The above endorsement indicates that the workers were not provided proper opportunity to cross-examine the witnesses, which fact is, further supported by the answers made by complainant, such conduct of enquiry officer and the witnesses seem to be the reason for refusal of workers to participate in the enquiry, proceedings. The case law i,e, 1999 SCM R 734 and 2000 PLC 274 relied by the counsel for the company having distinguishable facts and circumstances cannot be applied in the instant case to uphold the enquiry report and action taken on the basis of the same, as- in my view company failed to establish misconduct alleged in show-cause notice, dated 8-4-2000.
59. ' In view of what has been discussed above, I am of the view that both the dismissal orders i,e, on ground of wilful absence from duty for more than ten days and the allegations made in the show- cause notice, dated 8-4-2000 were illegal and the same were rightly set aside by the labour Court.
60. ' As I am of the view that both the dismissal orders were not legal, therefore, the contention of the learned counsel for the company that second show-cause notice was not necessary, is found to be irrelevant.
61. ' Learned counsel for the company made an attempt to challenge the maintainability of the grievance notice filed before the Labour Court contending that the workers being officer-bearers who alleged that their termination was mala fide and company was involved in unfair Labour practice were required to approach NIRC under section 49(e) of the IRO, 2002, and their applications under section 46(3) of IRO 2002 was not maintainable, the plea of learned counsel for the company is found to be having no substance, as section 49(9) of IRO , 2002 expressly states that the jurisdiction of. Labour Court to entertain cases of unfair labour practice on the part of employees or workmen whether individually or collectively is not excluded.
62. ' The counsel for the company attacked the affidavits in evidence filed by the workers, contending that it was not in conformity with the provisions of Order XIX rule 3(1), C.P.C. And such affidavit, could not be admitted in evidence. Reliance in said regard was placed on judgments 2004 CLC 77 and 1988 PCr.LJ 2347.
63. ' The submissions made by the learned counsel considered and the affidavits in evidence filed by the workers in all the four cases examined, which is found to have been made on oath, as indicated by the endorsement made by the commissioner for taking oath, which reads as under:-- "The deponent named above stated on oath before me at Karacni this 4th day of December, 2004, who is identified by Mr. Muhammad Shafiq Qureshi Advocate, who is known to me personally . "
64. ' In such view of the matter it would be suffice to observe that the plea of the learned counsel for the company is contrary to the record of the cases in hand and his plea cannot make the affidavits in evidence nugatory/inadmissible.
65. ' The workers have been reinstated with full back benefits. Counsel for the company has objected to the grant of back benefits contending that there was no evidence that the workers remained un- employed after their dismissal from service by the Company. Learned counsel contended that the onus in said regard rested on the workers which they failed to discharge.
66. ' On the other hand the said contention of the learned counsel for the company is repelled by the counsel for the workers who supported his plea by referring to the affidavit in evidence of the workers who stated on oath that they remained unemployed after dismissal from service and their such statement could not be controverted.
67. ' After having gone through the record and the submission made by the learned counsel for the parties as well as the series of judgments relied by both the parties, it is to observe that the workers in their affidavits in the evidence categorically stated that they remained jobless after being dismissed from service which fact could not be controverted by the company, and the company failed to produce any evidence about workers being in any gainful service during the period they remained out of service. Although Abdul Hameed worker stated that he was engaged in farming during said period, but his such statement would not show that farming was adopted by him only because he was removed from service as his evidence shows that he was involved in the same event when he was in service of the company, while he denied the plea of the company about having any shop where he does business and the company failed to prove the said plea raised during his cross-examination. However, with regard to other three workers the company did not even agitate that they were engaged in any gainful business or employment after their dismissal from service. In such view of the matter the workers are found to have discharged the onus about their being un-employed after their dismissal and the company was unable to rebut the same. In such circumstances worker could not be refused back benefits. Hence the order of reinstatement with back benefits is found to be unexceptional calling for no interference. However, it is to observe that the relations between the company and the workers has become strained and there exist serous differences between the parties making it difficult if not impossible for them to work in a harmonious manner and hi such circumstances remedy has been provided under section 46(5) of IRO, 2000 whereby the workers can be compensated in lieu of their reinstatement. The counsel for the workers has impliedly accepted the said position by raising alternate plea for awarding compensation to the workers in lieu of their reinstatement in service. Having in view the above attending circumstances, I deem it appropriate to amend the order of reinstatement of the workers by granting them compensation of 15 months pay and allowances in lieu of their reinstatement in addition to the back benefits for the period they remained out of service till passing of this order.
68. ' Accordingly, the order, dated 18-10-2005 passed in Labour Appeals Nos.14 of 2005, 15 of 2005, 16 of 2005 and 17 of 2005 is merged in this order resultantly the Review Applications Nos.C.M.As. Nos.1 of 2005, 2 of 2005, 3 of 2005' and 4 of 2005 are dismissed and except above modification of order of reinstatement of respondents/ workers in service, Labour Appeals Nos.2 of 2006, 3 of 2006, 4 of 2006, 5 of 2006, 6 of 2006, 7 of 2006, 8 of 2006 and 9 of 2006 having no merits are dismissed with no order as to costs.