DECISION The appellant, who was employed as a general workman in the Packing Department of the respondent-Company, was dismissed from service with effect from 20th July, 1980, on the charge of instigating the workers not to obey the notice of 'lay off' and further abusing and threatening the personnel officer of the respondent-Company, The dismissal orders were based on the report of the Enquiry Officer, A. Sama Khan, who found the charges against the appellant fully established. It may be mentioned here that before the dismissal orders were passed a second show-cause notice was given to the appellant but his reply to the same was not found satisfactory. The appellant challenged the orders of his dismissal before the learned Third Labour Court, which has rejected his grievance petition, taking the view that the misconduct of the appellant was duly established in a domestic enquiry which was fairly and properly conducted. The appellant has come up in appeal against the aforesaid decision.
2, Mr. Salim Raza, the learned Representative of the appellant, has assailed the decision of the learned Labour Court on two main grounds. His first ground of attack was that copies of the complaint, charge-sheet and reply to the charge sheet were not produced before the Enquiry Officer and consequently the enquiry proceedings are defective and invalid. The objection of the learned Representative was effectively countered by Mr. Masood Ahmed Khan, the learned Representative for the respondent-Company, who pointed out that the very first page of the enquiry proceedings recites that the charge-sheet was read over to the appellant who denied the allegations contained therein. Mr. Masood Ahmed Khan also referred me the report of the Enquiry Officer, in para. 1 whereof it is asserted that the copy of the complaint was given to the appellant.
3. It was contended by Mr. Salim Raza that the appellant had shown his want of confidence in the Enquiry Officer and requested the Management to change him but the Management refused to do so. According to Mr. Salim Raza, the Enquiry Officer was prejudiced against workers and consequently he held a one sided enquiry and submitted a prejudiced report. I also sfind no force in this contention of Mr. Salim Raza. It appears that by their letter, dated 11th May, 1980, the Management informed the appellant that since their Personnel Officer was the complainant and the Security Officer was the witness to the alleged misconduct of the appellant, they had considered it proper to have an outsider as an Enquiry Officer and, accordingly, requested their sister-concern to permit Mr. S. M. A. Rizvi, their Labour Officer to hold the enquiry against the appellant. The appointment of Mr. Rizvi as Enquiry Officer was objected to by the appellant in his letter, dated 14th May, 1980, on the grounds, firstly, that Mr. Rizvi was an outsider and, secondly, that he was known to be against the workman. In view of this protest of the appellant, the Management, by their letter, dated 24th May, 1980, appointed Mr. A. Samad Khan, an Officer of another sister- concern, to conduct the enquiry against the appellant. The appointment of Mr. A. Samad Khan, as Enquiry Officer, was also objected to by the appellant by his letter, dated 31st May, 1980. The objection to Mr. Samad's appointment was grounded in the fact that he was an outsider. The appellant in his above letter requested that either some Officer of the factory or an Officer of the Directorate of Labour be appointed as Enquiry Officer. The Management rejected the request of the appellant, and in my opinion rightly so, for a second change in the Enquiry Officer and pointed out to appellant that his reasons for objecting to Mr. Samad were not sound. The mere fact that Mr. Samad was an Officer of a sister-:, concern cannot be considered to have either disqualified him or to have(' made him an inappropriate person to hold the enquiry against the appellant.
4. There is, however, another ground on which the appeal must succeed. Although the respondent- Company submitted a reply statement before the learned Labour Court refuting the claim made by the appellant in his grievance petition they did not choose to lead any evidence in rebuttal. The result is that the evidence led by the appellant before the Labour Court remains unrebutted. In his affidavit, the appellant has asserted that he is General Secretary of the Mercantile Industries Mazdoor Union and that during the pendency of the registration application of the said Union he was removed from service. He has further asserted in his affidavit that the charges mentioned in the charge-sheet are contrary to the charges shown in the complaint. He has also asserted that the Enquiry Officer was a partial person and that his attitude was not proper and that he has failed to properly appreciate and consider the statements or the evidence lead in defence. If these allegations were baseless the respondent-Company should have led evidence in rebutal. In any case, since the orders of the appellant's dismissal are based on the proceedings in the domestic enquiry particularly the Enquiry Officer's report, the Enquiry Officer should have been examined.
This, however, was not done. It has been held by their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. v. Mohammad Yagfoob , that the intention of the Legislature in enacting subsection (5) of section 25-A, I.R.O., is to provide a double forum, one in the form of judicial enquiry to be held by the employer and the other in the form of judicial determination by a Labour Court itself, and that if the employer leads no evidence to prove justification of the orders passed by him on merits, the Appellate Court would be justified, in the CiTC11611..' stances, in accepting the employees appeal by holding his dismissal unwarranted on factual plane. In view of the above position, I would accept the appellant's appeal, set aside the order of the learned Labour Court and direct the appellant's re-instatement in service. However, since the appeal is being allowed on the technical ground that the respondent. Company failed to produce any evidence before the learned Labour Court in support of the order of the appellant's dismissal, I do not consider this as a fit case for award of back benefits. 1