SYED SAKHI HUSSAIN BUKHARI, J.-- This appeal is directed against the judgment dated 12.02.2004 passed by learned Presiding Officer, Punjab Labour Court No. 7, Gujranwala whereby grievance petition brought', by appellants was dismissed.
2. Relevant facts for the disposal of this appeal are the appellants had been serving with the respondents since 1986, 1990 and 1991 and according to law they are workers. During service their performance was quite satisfactory and there was no complaint against them. The appellants averred that appellants Nos. 1 to 5 were office bearers of Shaheen Workers Union, Sialkot Dry Port Trust whereas appellant No. 6 was office bearer of employees union and' respondents did not like them and intended to remove them from service. On 24.10.1998 the appellants submitted application before respondent No. 1 (Chairman) against respondent No. 2 (General Manager Sialkot Dry Port Trust) and in order to take revenge he (Respondent No. 2) planned to attack the appellants. On 27.10.1998 charge- sheets on the basis of concocted story were issued to them. The charge-sheets were not issued by competent authority. The appellants filed reply but the same was not considered and Mr. Kashif Ibrahim was appointed as Inquiry Officer. The appointment of Inquiry Officer was not made by competent authority and he was not independent. Inquiry Officer.
They filed applications fdr transfer of Inquiry Officer but their applications were rejected and due to this reason Mr. Kashif Ibrahim was annoyed. The appellants joined the inquiry but respondents implicated them in baseless criminal cases. However, the Inquiry Officer did not provide them chance of hearing. The statements of their 'witnesses were not recorded. Likewise they were not allowed to cross-examine the witnesses. Their co:workers were not allowed to join inquiry proceedings. The inquiry was initiated due to the reason that appellants were involved in union activities and inquiry was conducted against principles of natural justice. During inquiry, charge of mis-conduct was not proved and inquiry report is perverse. The appellants asserted that second show-cause notice was not issued by competent authority. They were dismissed from service on 23.2.1999 without hearing them. The appellants have prayed for reinstatement into service with back benefits. The respondents mentioned in reply that appellants have not been performing their duties satisfactorily. They stated that appellants Nos. 1 to 5 were office bearers of Shaheen Workers Union but they were removed from their offices on 09.06.1998 through an confidence motion and that Shaheen Workers Union ceased to be CBA w. B.f. 20.03.1999. On 24.10.1998 Sheikh Shafique-ur- Rehman appellant accompanied by Ehsan Ullah etc. Visited the office of General Manager (respondent No. 2) and threatened him with dire consequences and informed the Chairman of the Dry Port on telephone about the same. On 28.10.1998 appellants staged illegal strike at the Dry Port and started raising filthy slogans against respondent No. 2 (General Manager). On the same day, appellants entered the office of respondent No. 2 and mis-behaved, insulted and threatened him with dire consequences. The appellants also threatened him that they would destroy Dry Port. The respondents mentioned that Syed Mumtaz Hussain Bukhari was competent to issue charge- sheets, final show-cause notice and final orders. The competent authority appointed Mr. Kashif Ibrahim as Inquiry Officer vide order dated 17.11.1998. The appellants boycotted the inquiry proceedings and walked out of the office of Inquiry Officer. He conducted the inquiry proceedings in their absence and recorded the statements of PWs. The Inquiry Officer to meet the ends of justice, afforded the accused opportunity alongwith copies of statements of witnesses but they did not appear before him on 03.12.1998. Sheikh Shafique-ur-Rehman assaulted Mushtaq Ali (PW) and snatched inquiry file forcibly from the Inquiry Officer. The appellants deliberately avoided to participate in the inquiry proceedings which"compelled the Inquiry Officer to hold inquiry ex parte and submit his report. Learned Trial Court recorded evidence and dismissed the application brought by appellants vide order, dated 12.02.2004. Hence this appeal.
3. I have heard the arguments and perused the record.
4. As mentioned above, the appellants were serving with the respondents but they were served with charge-sheets and after enquiry they were dismissed from service. The case of appellants is that enquiry was conducted ex parte and that enquiry officer was not independent as he was biased against them. Also that .Dismissal order was not passed by competent authority (Chairman). Admittedly enquiry was conducted ex parte. The case of the respondents is that appellants joined enquiry and threatened the enquiry officer with dire consequences, snatched enquiry file from him therefore, enquiry officer was constrained to conduct ex parte enquiry, The ex parte enquiry is against the principles of natural justice and enquiry is liable to be set aside on this score alone.
5. The enquiry proceedings (Ex.R-1) show that statements of witnesses produced by respondents during enquiry are not signed by enquiry officer. Learned counsel for the respondents admits that the same do not bear signatures of enquiry officer As such these statements have no value and enquiry is liable to be set aside on this ground.
6. RW-1, Kashif Ibrahim is enquiry officer in this case. During cross-examination he admitted, that union had filed complaint against him and Operation Manager before learned Magistrate Section- 30 Daska. He stated that he was PW in a criminal case (FIR No. 372/1998) got registered by management against Shfique-ur-Rehman and etc. He did not know if on 7.12.1998 Shaheen Workers Union had submitted application against him in police station Sambrial. The witness admitted that management had obtained stay order against strike notice and on 17.03.1998, 13.03.1998 and 26.06.1998 he had been appearing before Labour Court on behalf of management.
On 4.3.2000 he appeared before learned Trial Court in this case on behalf of management. The witness also admitted that he appeared as representative of management in departmental enquiry against Shafique-ur-Rehman, appellant and cross-examined him (Shafique-ur-Rehman.
He also appeared as representative of management in another enquiry against Shafique-ur- Rehman, appellant. He was appointed as enquiry officer by a Member, Board of Trustees. The witness could not tell about the competent authority of appellants The enquiry officer admitted that appellants laid submitted two separate applications for transfer of inquiry officer but the same were rejected by management and he was informed accordingly. He also admitted that Naseer Bhatti group submitted application -for appointment of representative but he refused. It is clear from statement of RW-1, Kashif Ibrahim that he was not independent enquiry officer and it is sufficient to set aside enquiry proceedings. Reliance can be placed on the case of Government of NWFP through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others (2003 SCM R 104). Moreover enquiry was ex parte. As stated earlier appellants filed applications for change of enquiry officer but the same were rejected. Mere holding of enquiry is not requirement of law, a person against whom enquiry is conducted is to be allowed to participate in inquiry and given opportunity to cross- examine witnesses and to produce his defence. So in the circumstances of the case the inquiry conducted in this case cannot be approved. It is clear from the record that enquiry is defective.
7. The case of appellants is that appointment of enquiry officer and issuance 6r order of dismissal is not by competent authority, therefore, order of dismissal is liable to- be set aside. Learned counsel for the respondents submits that appointing authority was Chairman. However order of dismissal in this case was issued by Syed Mumtaz Hussain Bukhari (Member Board of Trustees).
8. For what has been discussed above I am of the considered opinion and enquiry is defective, therefore, order of dismissal is liable to be set aside. In such cases normally employees are reinstated into service with permission to hold fresh enquiry. However, appellants were dismissed from service on the charges that they had threatened their officers (manager etc.) with dire consequences and threatened to damage and destroy the Dry Port Trust. Also that they instigated and persuaded their colleagues to go on strike and made unlawful assembly in front of main gate.
The charge-sheet issued to Mian Abdul Jabbar Zafar appellant reads as under:-
(i) "That on 26.10.1998 at about 9:30 a.m. you and Sheikh Shafique-ur-Rehman, Muhammad Hafiz Mughal. Basharat AH, Chairman, M. Iftikhar Ahmad Ghuman, Ehsan Ullah, Clerk of the Dry Port Sambrial started tagging black patties on the arms of the workers of the Dry Port and instigated and incited them to strike work.. On your instigation about 70% workers left their jobs and struck work and came out of their respective Offices and sheds and assembled in the yard of the Dry Port at about 12:00, noon. You and your companions incited the workers to raise slogans. You all fed dirty slogans to the workers as a result whereof slogans mongering against the General Manager and the management continued unabated for about 3/4 hour. The General Manager asked you for talks, but, you refused to listen to him and abused and insulted him. At about 3.50 p.m you and your above named companions forcibly pushed the Security Guard and the Duty Clerk who attempted to stop you from forcibly entering into the office of the General Manager and after trespassing into the office of the General Manager you, all with common intentions, man-handled him by twisting his arms, abused and insulted him and threatened to kill him. You also threatened to damage and destroy the Dry Port Trust by saying that [( URDU TEXT )]
(ii) That on the following day, i.e. On 27.10.1998 at about 9:00 a.m. You alongwith your above named companions snatched the keys of various departments and sheds from the Security Officer Mr. Mushtaq. Ali and again' incited, instigated and persuaded the workmen to go on strike as a result whereof the workers did not go to their respective dobs and struck work. In the meantime on information conveyed by the General Manager to the Deputy Commissioner. Sialkot, the Assistant Commissioner, Da ska, the police party reached the scene of occurrence and after a great deal of efforts on their persuasion you agreed to send the workers back to their sheds, and returned the keys.
(iii) That again on 29.10:1998 you and Raja Jahangir Khan. Tariq Mahmood Butt, Abbas Ali Cheema, Muhammad Javed Malhi, Basharat Ali Cheema, Iftikhar Ahmad Ghuman, Mubashir Zaman, Liaqat AH. Ehsan Ullah, Abdul Qayyum Clerks left their jobs without permission of their Incharges and went out of the gate of the Dry Port to meet Malik Muhammad Warts and his companions, the outsiders.
You made an unlawful assembly in front of the main gate towards the road side and shouted filthy abuses on the General Manager and the management of the Dry Port Trust and hurled threats of killing. You and Your aforementioned companions did not return to the jobs till 3:30 p.m. And struck work for about 3 and half hours.
(iv) That again on 30.10.1998 you and your aforementioned companions and Muhammad Ashraf Clerk made the workers to assembly in front of Union Office inside Dry Port premises at 10:00 a.m.
And struck work for one hour and went on raising filthy abuses and dirty slogans against the management.
(v) That on each date mentioned above, you and all the above-named persons committed riotous and disorderly behaviour during the working hours at the Dry Port and committed acts subversive of discipline and struck work illegally.
(Vi) That you and your above-mentioned companions acts and omissions detailed above constitute mis-conduct of very grave and serious nature.
It shows that if appellants are reinstated into service anyone of them or some other workers of the Dry Port, at their instance or instigation might create law and order situation at the Dry Port or create problem in the smooth working thereof. So in the circumstances of the. Case it would be proper that appellants be given compensation in lieu of reinstatement into service. Reliance can be placed on the case Abbasi Textile Mills Ltd. Rehim yar khan v. The Industrial Court, West Pakistan.
Abbasi Textile Mills Workers Union, Rahim yar khan and Kale Khan (PLD 1966 S.C. 765). According to Section 46(5) of IRO, 2002 Labour Court may award compensation equivalent to not less than twelve months and not more than thirty months' basic, pay last drawn and house rent, if admissible, in lieu of reinstatement of the worker in service. As such respondents are directed to pay them compensation instead of reinstatement into service and in my opinion this would meet the ends of justice. In Section 46(5) of IRO, 2002 word "Termination" has been used but I am of the considered opinion that word termination also includes dismissal after enquiry.
9. The upshot of the above discussion is that this appeal is accepted and impugned judgment is set aside. The grievance petition brought by appellants is accepted and dismissal order is accordingly set aside. However respondents would pay them 30 months basic pay last drawn and house rent if admissible, in lieu of reinstatement into service. No order as to costs.