DECISION ' The appellant, who was employed as a cone winder in the respondent-Mills, was dismissed from service with effect from 9th August, 1979, on the charges, firstly, that on 1st July 1979, he refused to perform his duties and unauthorisedly left the Mills despite it being pointed out to him by his jobber that there is shortage of workers and the production will suffer, secondly, misbehaving with his jobber on 2nd July 1979 and thirdly, operating a wrong machine, on 3rd July 1979, despite the instructions of the jobber and again misbehaving with him. The dismissal orders were based on the report of the Enquiry Officer, who held that all the charges against the appellant had been established in a domestic enquiry held by him. It may be mentioned here that this enquiry was held ex parte as the appellant did not participate in the same. The appellant challenged the orders of his dismissal before the learned Fourth Labour Court which directed that the appellant be reinstated in service but at the same time allowed the respondent establishment to hold a fresh enquiry in accordance with law and made the payment of back benefits to the appellant dependent upon the result of such an enquiry. Both the parties preferred an appeal to this Tribunal.
The appeals were heard together and by a common order the decision of the learned Labour Court was set aside and the case was remanded to it for fresh decision on merits. On remand, the learned Labour Court has upheld the orders of dismissal of the appellant and rejected his grievance petition. The appellant has now come up in appeal for the second time to this Tribunal.
2. I have heard Mirza Muhammad Kazim, the learned counsel for the appellant. He has assailed the impugned decision of the learned Labour Court on three grounds. His first ground of attack was that as the appellant was on leave on 1st July, 1979, and 2nd July, 1979 the allegations regarding his alleged misconduct on these two dates are quite false. In support of his contention that the appellant was on leave on the aforesaid two dates, the learned counsel relied upon the evidence of Muhammad Rehman, the brother of the appellant, who has stated before the Labour Court that as the appellant had some private work on 1st July, 1979, the latter gave him an application for leave on that date as also or 2nd July, 1979 and he took the said application to the time-office of the respondent establishment and gave the same to a Clerk. The evidence of Muhammad Rehman, however, has been disbelieved by the learned Labour Court, and in my opinion rightly so, as not only the receipt of the alleged leave application has strongly been denied by the respondent establishment but further neither Muhammad Rehman was able to give the name of the Clerk to whom the application was given nor was any other evidence led to establish the fact that such an application was in fact given to the respondent establishment. It may further be pointed out that even according to Muhammad Rahman the leave application was returned to him at the instance of Jobber Rehman, but neither a complaint was made to the management regarding the return of the leave application nor the leave application was sent by post to the Management. There appears to be, thus, no substance in the contention of the appellant that he had applied for leave and was in fact on leave on the 1st and 2nd July, 1979. On the other hand as many as three witnesses, namely Jobber Rehman, son of Sultan, Cone Winder, Moamber son of Shah Zar and Cone Winder, Siraj son of Zar Kash, testified in the domestic enquiry that the appellant had come to the mills both on 1st as well as on 2nd of July, 1979, and on the former date he refused to do work in spite of it being pointed out to him by the Jobber that there was extreme shortage of workers and on the latter date he misbehaved with Jobber. There is, thus, tangible and reliable evidence in support of the charge against the appellant relating to the incidents of 1st and 2nd July, 1979. It is true that the enquiry was held ex parte but due notice of the holding of the enquiry was given to the appellant who refused to participate in the enquiry proceedings because he was not permitted to be represented by a person who was not a worker of the respondent establishment.
2. It was next submitted by the learned counsel for the appellant that the Enquiry Officer did not hold the appellant guilty of an act subversive of discipline, and therefore, the appellant should be considered to have been absolved by the Enquiry Officer of the allegation of misbehaving with the Jobber. In support of his contention he relied upon the finding of the Enquiry Officer holding the appellant guilty of acts of misconduct falling under Standing Order 15 (3), clause 5 (a), (c) and (i).
It is. True that these clauses do not cover acts subversive of discipline, which are specifically covered by clause (h) of Standing Order 15 (3), but the mere wrong mention of a section of a law does not vitiate the proceedings nor can it be construed as absolving the appellant of charges which are established upon the evidence on record. The Enquiry Officer, in his report, has specifically referred to the evidence of the, witnesses relating to the incident on 1st and 2nd July, 1979, particularly the misbehaviour with the Jobber. As such, I am of the opinion that the Enquiry Officer did hold him guilty of acts subversive of discipline.
3. It was finally contended by Mirza Muhammad Kazim that a copy of the Enquiry Officer's report was not furnished to the appellant despite his request for the same after the service of the second show-cause notice. It is, however, evident from the testimony of Hadi Abdul Fareed, the Manager Administration and Attorney of the respondent establishment, that although a copy of the Enquiry Officer's report had been previously supplied to the appellant, another copy of the Enquiry Officer's report was sent to the appellant, by registered post, with the letter, dated 31st July 1979. A copy of the said letter as well as the postal registration receipt therefor have been produced by Hadi Abdul Fareed. The letter specifically mentions that another copy of the Enquiry Officer's report is being sent to the appellant. This letter was sent to the correct address of the appellant and hence it is to be presumed, in the absence of proof to the contrary, that the letter, including a copy of the Enquiry Officers report, must have been received by the appellant in due course of postal business.
4. The misconduct of the appellant appears to have been duly established in a domestic enquiry from which the appellant walked out because he was not being allowed to be represented by a person who was not or who had ceased to be a workman of the respondent establishment. The appellant, thus, is to blame himself for not participating in the enquiry proceedings and he cannot be heard to complain that he was not given sufficient opportunity to defend himself.
5. For the reasons discussed by me above I find no merit in the appeal and would dismiss the same In limine.