' MUHAMMAD MOOSA K. LEGHARI, J.--- The judgment, dated 11-10-2004 passed by Sindh Labour Court whereby the removal of respondent workman from service was declared illegal has been assailed through this appeal.
2. The respondent who was permanent employee of the appellant, allegedly received a letter dated 27-11-1999 informing him about termination of his service alleging therein that he was absenting himself from duty without prior permission and that he was reported to be careless and negligent. Consequent upon service of grievance notice, the respondent challenged his termination before the Sindh Labour Court. In pursuance of notices Mr. Farooq Ghani, Advocate attended the Labour Court and filed an undertaking to appear on behalf of respondent. The matter was put off to 12-1-2000.
3. It appears that the appellant-Management subsequently informed the respondent workman that no such letter of termination was issued and that the respondent worker was unauthorizedly absent from his duty w,e,f, 27-11-1999. A charge-sheet dated 13-1-2000 was sent to the respondent workman through registered post A.D. Cover, followed by notice of inquiry, dated 20-1-2000. An ex parte inquiry was held on 25-1-2000 and the workman was dismissed vide order, dated 26-1-2000.
Dismissal was challenged by a second grievance petition which was filed after service of grievance notice.
4. It was pleaded by respondent worker before the Labour Court that action of the appellant- Management was mala fide. The letter of termination followed by charge-sheet was maliciously issued to respondent which was illegal and that he was not given any opportunity to defend his case and participate in the inquiry.
5. In the written statement filed by the appellant-Management the allegations including the issuance of termination letter were denied. It was asserted that the respondent was properly charge-sheeted on account of misconduct due to unauthorized absence beyond ten days and that neither he submitted reply to the charge-sheet nor participated in the inquiry proceedings, despite service of charge-sheet and notice of inquiry. However, charges against respondent worker were proved in an impartial inquiry.
6. The respondent workman appeared in the witness-box as his own witness while Ziauddin Malik the Inquiry Officer was tendered in evidence by the appellant/Management who produced inquiry proceedings.
7. On appraisal of evidence, Labour Court came to the conclusion that the dismissal of the respondent workman was illegal as such directed the appellant-Management to pay back- benefits besides the compensation equivalent to 30 months wages to the respondent. Hence this appeal.
8. It has been argued on behalf of the appellant that no original letter of termination was placed on record, while photostat copy of the same was inadmissible in evidence. The applicant was intimated through courier service that no letter of termination Was issued to him and that he was unauthorizedly absent. It is argued that despite intimation the respondent worker failed to attend the duty, therefore, he was charge-sheeted. He failed to submit an explanation and also failed to join inquiry proceedings, therefore, he was rightly dismissed from service. It was further contended that the Labour Court has no authority to substitute the punishment awarded to the worker. It was pleaded that the judgment of the Labour Court was illegal and against the evidence. In the alternate it was urged that the Management be allowed to hold fresh inquiry to provide an opportunity to the respondent workman to participate. Case-law was also cited to strengthen the submissions.
9. Conversely learned counsel for respondent supported the impugned judgment. He contended that the action of appellant-Management was malicious since its inception. Neither the termination nor dismissal of respondent was tenable. Pointing out from the judgment of trial Court he contended that since the appellant-Management was bent upon to get rid of the respondent workman, the proceedings were initiated, conducted and concluded in an illegal, mala fide haphazard and hasteful manner.
10. Arguments advanced at the bar have been anxiously considered, the relevant case-law has been examined and the material placed on the record has been scrutinized.
11. It seems that the episode started with the issuance of termination letter, dated 27-11-1999. The applicant has specifically pleaded in the grievance petitions that on 26-11-1999, he declined to sit late in the office. So the next day when he reported for duty his time card was missing as such he was informed to wait at reception. Subsequently, he was called by General Manager, Finance and Administration who showed him letter of termination and on his refusal to accept the same it was sent to him through courier service.
' In the reply statement filed by the appellant-Management the above assertions have been denied. However, the appellant who appeared in the witness-box has reasserted the above facts on oath. In both the grievance petitions the reply statement was filed by Muhammad Arif Khawar, General Manager Finance and Administration to whom the mala fides have been attributed. The above named Muhammad Arif Khawar who was a Notified Manager chose not to file his affidavit and abstained from appearing in the dock so as to refute the assertions specifically made against him by the respondent workman, though he was very much available and was occupying similar position with the appellant-Management as obviously evident from the evidence on record. The respondent workman has discharged his initial burden of proof so far as the allegations of issuance of letter of termination are concerned, but the appellant-Management deliberately withheld the evidence which was available and could have been produced. Certainly the negative is easier to prove than positive. Indeed the unexplained and deliberate nonappearance of Muhammad Arif Khawar who submitted the written statement would be the strongest possible circumstance going to discredit the truth of the case of Management. As the written statement cannot be treated as evidence in the case, without the person who filed the same being examined in Court, it is of no consequence.
12. It seems that in order to remove the respondent, initially a termination letter was issued to him but subsequently the appellant-Management changed the mind for the obvious reason that letter of simple termination containing charge of misconduct was unsustainable being illegal and could not withstand judicial scrutiny. Therefore, they decided to disown the order of termination and initiated disciplinary proceedings by issuance of charge-sheet so that the removal of the respondent worker could be provided a legal cover. Consequently the charge-sheet was issued on 13-1-2000 for submission of reply within 48 hours and was dispatched under registered post A.D.
Cover on 15-1-2000, while inquiry notice was issued on 20-1-2000 for holding inquiry on 25-1-2000.
The inquiry was completed and the report was submitted on the same day. Order of dismissal was however, issued on the next day viz. 26-1-2000.
13. Evidently the charge-sheet against the respondent workman was prepared on 13-1-2000 viz one day after the Advocate for the appellant put his, appearance before the Labour Court. Thus, the appellant-Management was fully in the knowledge of pendency of the petition by which respondent workman has chlallenged his removal. Even then they did not take a pause, instead accelerated the process with the result that the time for submission of reply to the charge-sheet by workman stood lapse, when the same was dispatched to him. Proceedings were conducted in such hot haste that those turned out to be an apparent fraud, rendering the whole process void and the dismissal utterly illegal. Indeed fraud vitiates most solemn proceedings.
' So far as the prayer of the appellant-Management to allow them to hold fresh inquiry is concerned, it is absolutely unacceptable, being unjust. Once it has been established that the action of the appellant-Management in removing the workman is tainted with malice, no option will be available with the Court except to strike down the order of dismissal.
14. Learned Labour Court recorded its finding in the following manner:-- "It is an admitted fact that Grievance Petition No,1 of 2000 under section 25-A of IRO, 1969 was, presented on 28-12-1999. Respondent appeared before this Court through his Advocate on 12-1- 2000. In spite of that respondent did not stay its hands and issued a charge-sheet to the applicant on 13-1-2000, which was dispatched through registered A.D. On 15-1-2000, in the said charge-sheet a time of 48 hours was given to the applicant for submission of reply, which was already over prior to the dispatch of the letter. Applicant claims to have received charge-sheet on 20-1-2000, which fact has not been challenged in cross-examination. The enquiry letter, dated 20-1-2000 was dispatched on the same date by registered A.D. And the enquiry was allegedly conducted on 25-1- 2000 in hasty manner. The enquiry proceedings at page No,3 bears dated 25-2-2000 under the signature of the Enquiry Officer. The Enquiry Officer has clarified that it is his mistake. Normally if date is passed on the subsequent date one can put previous date under his signature due to omission or mistake, but a 'subsequent date cannot be put on a previous date. The clarification of the Enquiry Officer regarding mistake in date of one month is not acceptable. It appears that enquiry report has been prepared in back date. I have come to the conclusion that no impartial enquiry was conducted. Issue answered accordingly."
15. The judgment passed by Labour Court is based on sound reason and is unexceptionable. It is accordingly upheld, and the appeal is dismissed.