The respondent, who was employed as a workman in the Folding Department of the appellant Mills, was charge-sheeted on 1st October, 1977 for continuously remaining absent from his duties for more than 10 days with effect from 19th September, 1977. The respondent. In his reply to the charge- sheet, dated 8th Oectober 1977, denied that he was absent from his duties with effect from 10th September 1977, and claimed that he had attended his duties up to 27th September 1977, on which date he received a telegram from his brother requiring him to come urgently whereupon he submitted a leave application to the Mills authorities and left for his home town. The Management did not consider the respondent's explanation satisfactory and accordingly held a domestic enquiry against him. On the basis of the enquiry officer's report, who found the charge of absence from duties for a period exceeding 10 days established against the respondent, he was dismissed from service with effect from 16th January, 1978. The respondent challenged the action taken against him by way of a grievance petition before the learned IVth Labour Court which set aside the dismissal orders of the respondent and directed the Management to reinstate him in service with full back benefits. The appellant Mills preferred an appeal to this Tribunal against the above decision and my learned predecessor, by his order, dated 14th April 1978, while concurring in the findings of the learned Labour Court that proper opportunity was not allowed to the respondent to defend himself and that no reasons had been given by the enquiry officer for not summoning the record and the witnesses whom the respondent wanted to produce and examine, held that the proper course for the Labour Court was to allow the Management to hold a fresh enquiry by appointing another enquiry officer. He accordingly, while allowing the appeal, also allowed the Management to hold a fresh enquiry by appointing another enquiry officer and directed that the award of back benefits to the respondent would depend upon the result of the fresh enquiry. The respondent filed a Constitution petition against the said order, being C. B. No, 804/79. The said Constitution petition was, however, dismissed in limine on 15th May, 1979. In the meanwhile on 24th April 1979, the Management issued a letter to the respondent to participate in an enquiry which was to be held against him on 28th April, 1979, by Mr. Shaheedul Haq Haqqi, who had been appointed as the new enquiry officer. As the respondent failed to put in an appearance before the enquiry officer on 28th April 1979, the enquiry was postponed to 3rd May, 1979 at 10-00 a.m., and a letter, dated 29th April 1979, was sent by registered post, A/D, to the respondent at his correct address. In the said letter, the respondent was warned that if he failed to participate in the enquiry on the above date, time and place, the enquiry would be conducted ex parte. A copy of this letter also appears to have been affixed to the Notice Board of the appellant Mills. The notice was also published in the Daily, 'Aman' of 2nd May, 1979. As the respondent failed to participate in the enquiry proceedings even on 3rd May 1979, the enquiry was conducted ex parte. And the enquiry officer submitted his report on the same day to the Management to the effect that the misconduct of the respondent had been duly established in that he had unauthorizedly remained absent without leave from 19th September 1979, up to 8th October, 1977. On the basis of the second Enquiry Officer's report, a second show-cause notice, dated 5th May 1979, was issued to the respondent. In the meanwhile, a letter, dated 3rd May 1979, was received from the respondent complaining that he had received the letter, dated 29th April 1979, regarding the holding of the enquiry on 3rd May 1979, at 3-20 p.m., and consequently, it had not been possible for him to attend the enquiry. This allegation was refuted by the Management, by its letter, dated 6th May 1979. By his letter, dated 7th May 1979, the respondent submitted his explanation to the second show-cause notice wherein he challenged the enquiry proceedings as being mala fide and further asserted that though it was alleged in the second show-cause notice itself that copy of the enquiry officer's report was appended therewith, the same was appended with the second show cause notice. The respondent, therefore, made a demand for copy of the enquiry officer's report. The Management did not consider the explanation of the respondent to the second show-cause notice as satisfactory and accordingly, by it its letter, dated 9th May 1979, issued a fresh order of dismissal in respect of the respondent.
2. The respondent challenged the fresh order of his dismissal before the learned IVth Labour Court which once more has set aside the same by its detailed decision, dated 16th November, 1980. The learned Labour Court rejected the contention of the respondent that he had been served with the letter, dated 29th April 1979, regarding the holding of the domestic enquiry against him on 3rd May 1979, and held mainly on the evidence of the Postmaster, Mohammad Anwar, and the Delivery Sheet of the registered articles/letters maintained for 2nd May 1979, that the said letter was delivered to the respondent on 2nd May 1979. The learned Labour Court also did not accept the testimony of witnesses Afzal and Mohammad Ilyas, 2 of the witnesses allegedly examined in the domestic enquiry, who were examined in the Labour Court on behalf of the respondent, that their statements were not recorded by the enquiry officer and that no enquiry was held on 3rd May 1979.
The learned Labour Court, however, has held that the Management failed to furnish a copy of the enquiry proceedings to the respondent, despite his demand for the same, and consequently, the enquiry proceedings tand vitiated. In support of this finding it has relied upon 2 decisions of the Karachi High Court reported in (1) PLD 1977 Kar. 167 and (2) 1978P L C 567 and a decision of this Tribunal in Appeals Nos, KAR-334/80 and 218/10, decided on 23rd Aprli 1980. The learned Labour Court did not consider that this was a fit case for giving another opportunity to the Management to hold a fresh enquiry against the respondent, as firstly, the Muster Roll appeared to have been tampered, secondly, neither the record demanded by the respondent was produced by the Management before the Enquiry Officer nor his Shift Incharge, Bakht Rawan was examined by the Enquiry Officer, thirdly, that the Enquiry Officer appears to have been under the influence of the Management and was unduly influenced by the fact of the ahsence of the respondent from the enquiry, and lastly, that the full enquiry proceedings, had not been produced by the Management before the Court. The appellant Mills have come up in appeal against the above dechcion of the learned Labour Court in the second round of litigation. A. I have heard Mr. Mahmood A. Ghani, who appeared for the appellant-Mills and Mr. Shafiq Qureshi, who represented the respondent workman. The first ground on which Mr. Mahmood Ghani assailed the impugned decision of the learned Labour Court was that it is neither a requirement of law nor of natural justice that the copies of the proceedings of the domestic enquiry should be furnished to a workmen who is being proceeded against for misconduct. He further submitted that as the respondent for the first time made a demand for copies of the enquiry proceedings after the issuance of his dismissal orders, dated 9th May 1979, by which the bond of employer and employs between the parties had been surrendered, the Management was no longer under any obligation to supply him with the copies demanded, even if it be held that the supply of such copies is a requirement of natural justice. It may be mentioned that no demand for copies of the enquiry proceedings was made by the respondent in his reply; dated 7th May 1979. To the second show-cause notice. The demand for being furnished such copies has been made by the respondent for the first time, in his letter, dated 15th May 1979, which was written some 6 days after the issuance of his dismissal orders. There is no specific provision in the Standing Orders regarding the workman, who is being proceeded against for misconduct, to be furnished a copy of the enquiry proceeding. All that clause (4) o Standing Order 15 requires is that no order of dismissal shall be made in respect of a workman unless, firstly, the workman is informed in writing of the misconduct alleged against him within one month of the date of such misconduct or of the date misconduct comes to the notice of the employer, secondly, the workman is given an opportunity to explain the circumstance against, him, thirdly, the employer has instituted independent enquiry before dealing with the charges against the workman and lastly, the employer has given his approval to the dismissal of the workman. The non-furnishing of copies of the enquiry proceedings to the workman will invalidate an order of dismissal only in those cases where such action amounts to failure to give the workman an opportunity to explain the circumstance alleged against him. In the case of Associated Electrical Industries (Pakistan) v. Employees' Union a learned Single Judge of the Karachi High Court repelled the contention that paragraphs (4), (5) and (6) of Standing Order 13 of Ordinance III of 1960, gave a right to a workman to have the copies of the alleged misconduct, order of suspension and copy of order passed by the manager for dismissal, but the workman was not entitled to copies of the enters proceedings/findings of the enquiry and observed as follows : - "A workman who is suspended and dismissed after a domestic enquiry which is held against him by its employer has to seek redress in the Industrial Court concerned for any grievance that he has and for the purpose of representing his case properly there he requires apart from the copies of the abovementioned documents referred to in paragraphs 4, 5 and 6 of the Standing Order under consideration, the copies of statements of all the witnesses recorded during the domestic enquiry, otherwise he will not be able to discuss his case thoroughly when he approaches the Industrial Court for redress."
4. It will be observed that the learned Judge considered the supplying of copies of the enquiry proceedings necessary only for the purposes of enabling the workman to seek redress in the Industrial Court and not for the purpose of making his defence either in the enquiry proceedings themselves or before the employer. Furthermore, this was a case where a charter of demands had been served by the workers Union on the Management and one of the demands of the Union on the Management was that copies of the proceedings/findings of the enquiry should be provided to the employee concerned on demand. It was in that context that the learned Single Judge observed1 that a worker should "in all fairness" be supplied with copies of statements of all the witnesses whose evidence was recorded during the course of the enquiry. This observation was thus not in relation to a demand made by a workman who has been proceeded against for misconduct but the demand made by the Union in its charter of demands in respect of domestic enquiries to be held thereafter against the workmen. It may be pointed out that the law specifically permits the modification of the Standing Orders by collective agreement, provided that such agreement shall, not have the effect of taking away or diminishing any right or benefit available to the workmen under the existing Standing Orders. In the subsequent case of Ahmed Investments Ltd. v Sind Labour Court No, IV another learned Single Judge of the Karachi High Court referred to the earlier case of Associated Electrical Industries and observed :- "If a worker asks for such copies of the statements of the witnesses, the Management cannot hold back the same, and if it is not done, the same would certainly amount to violation of the rules of natural justice." This observation, however, is obiter dicta and with reference to the earlier case of Associated Electrical Industries. The learned Judge goes on to hold that the judgment in the said case was not applicable to the case before him as there was no allegation that the respondent had asked for the copies of the statements of the witnesses. The learned Judge approved the view taken by the Labour Court that there is no requirement under any Standing Order that the worker should be furnished with the copy of the enquiry proceedings. No doubt. In the case of Karachi Shipyard and Engineering Works Ltd. v.
Mohammad Saleem and others , decided on 28th April 1980, it has been held by this Tribunal that as the respondent workman was not furnished copies of the statements of the witnesses recorded during the domestic enquiry, though he specifically asked for the same for the purposes of submitting his reply to the second show-cause notice, there has been a violation of the rules of natural justice and the domestic enquiry thus suffered from a serious legal infirmity, but this view was influenced by the contentions of the workman that the Enquiry Officer was biased and was not changed by the Management despite applications made by the workman for this purpose and that no copy of the complaint against I the workman was furnished to him despite his request in this behalf.
5. I would like to refer to 2 more cases on this issue. The first is the case of Punjab Road Transport Board v. Punjab Labour Court . In that case, the grievance of the workman was that copies of statements of witnesses had not been furnished to him. A learned Single Judge of the Punjab High Court found that there was no grievance that no summary of evidence or copy of enquiry report were furnished to the workman and accordingly, rejected the challenge of the dismissal orders of the workman founded on non-furpishing of copies of statements of witnesses, with the following observation : - "There is no requirement of law, certainly not of the Standing Orders Ordinance, that a copy of the statements of witnesses is to be supplied and that if there is a failure to do so then the secured right of the workman is violated or the fairness of the enquiry is impaired."
6. In the recent case of Mohammad Qasim v. Sandoz (Pak). Ltd. Jamshoro , this Tribunal has held that "where statements of witnesses in the domestic enquiry were recorded in the presence of the workman charged with misconduct, non-supply of copies of such statements would not vitiate or invalidate the enquiry", as the giving of such copies cannot be considered to be necessary in such cases for the proper defence of the workman.
7. It would appear from the review of the above authorities that even in those cases where it has been held that the failure to furnish copies of the statements of witnesses would invalidate the enquiry proceedings, there was a timely demand for being furnished such copies. In the instant case, as already pointed out the demand for copies of the enquiry proceedings was for the first time made in the letter, 15th May 1979, which was sent at least 6 days after the issuance of the dismissal orders in respect of the respondent. The respondent's case, however, is not solely based2 3 4 5 upon the non-supply of copies of the enquiry proceedings. His further stand is that even a copy of the enquiry officer's report was not furnished to him before the orders of his dismissal were issued : No doubt in the second show cause notice, dated 5th May 1979, it has been asserted that a copy of the enquiry officer's report is appended with the notice, but the respondent, in his reply to the second show-cause notice, dated 7th May 1979, brought it to the notice of the Management that copy of the enquiry officer's report was not appended with the second show-cause notice and requested that such a copy be furnished to him in order that he should make a proper reply to the notice. The person who had sent or posted the second show-cause notice was not examined by the Management and hence there is no tangible evidence to show that in fact a copy of the Enquiry Officer's report was appended with the second show-cause notice. The mere assertion, therefore, in the second show-cause notice that a copy of the enquiry officer's report was appended with the notice is insufficient -for holding that such copy was in fact appended to the notice. No doubt, the respondent has admitted in his cross-examination before the learned Labour Court that he had received a copy of the enquiry officer's report, but he was evidently referred to the copy of report which was received by him along with the management's letter, dated 21st May 1979, long after the orders of his dismissal were issued. The copy of the Enquiry Officer's report received by him was thus of no help to him in submitting his reply or explanation to the second show-cause notice. The non-supply of the copy of the Enquiry Officer's report is of material consequence, in the instant case, as firstly, the enquiry against the respondent was held ex parte, and secondly, the plea of the respondent was that in fact no enquiry was held against him. Mr, Mahmood Ghani, the learned representative of the appellant-Mills relied upon 3 reported cases in support of his contention that furnishing of copy of the enquiry officer's report is neither a requirement of law nor of natural justice. The first of these cases is reported as Mohammad Shamim v. Sind Labour Court 1. In that case, a learned Single Judge .Of the Karachi High Court has held that clause (4) of Standing Order 15 does not expressly provide for supply of copy of the enquiry officer's report by the employer to the employee and hence non-supply of such a copy does not infringe the mandatory provision of any law. However, even in that case, the learned Single Judge observed as follows :- "At host what can be said is that without the enquiry report, the employees may not be able to make an effective representation to the second show-cause notice issued to him. If, therefore, the employee did require, for the purpose of enabling him to submit an effective representation, a copy of the enquiry report, nothing prevented him from asking for one. Admittedly, in the present case, he did make a reply to the second show-cause notice in which he did not make grievance of the non-supply of the copy of the enquiry report, nor was it contended before me that its non- supply prejudiced the petitioner."
8. The second case relied upon by Mr. Mahmood Ghani is reported as Abdul Aziz Khan V. Pakiston Cables Ltd. . In that case, it was found by a Division Bench of the Karachi High Court that the workman not only has submitted his resignation, but admittedly had taken out the bottle from the company, and further had submitted before the enquiry officer that the proceedings before him and the inquiry be speedily disposed of and decided and his accounts be cleared. Non-supply of copy of Enquiry Officer's report to the workman was not, in the circumstances of the case, considered to be an infringement of the provisions of Standing Order 15(4), firstly, because it was the petitioner himself who was insisting that his case should be disposed of quickly, and secondly, he did not desire the copy of the Enquiry Officer's report. This decision does not in any way assist the case of the appellant Mills, as firstly, the respondent had asked fora copy of the Enquiry Officer's report in order to give a proper reply to the second show-cause notice, and secondly, he questioned the very fact that an enquiry was at all held against him.6 7
9. The last case on this point relied upon by Mr. Mahmood Ghani is Nisar Ahmad v. Sind Labour Court . In that case, it was held by my learned predecessor relying upon the decision of their Lordships of the Supreme Court in the case of Muhammad Shamim v. Punjab Transport Corporation and another , that a copy of the enquiry report alongwith the second show-cause notice was not necessary because it was not supported by any Standing Order. However, both in that case as well in the case of Muhammad Shamim relied upon by my learned predecessor, no demand was made by the workman for a copy of the Enquiry Officer's report, while in the instant case such demand was made for the purposes of giving a proper reply to the second show-cause notice.
10. In the case reported as Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal . It has been held that where the employer holds an enquiry into the alleged misconduct of the employee, he cannot act upon the finding of the Enquiry Officer without giving an opportunity to the employee to explain his position with respect to the said findings and this cannot be done unless he is supplied with the copy of the Enquiry Officer's report. I would respectfully agree with this view subject to the rider that the workman demands a copy of the report. In the instant case, as already pointed out, not only the respondent had asked for the copy of the Enquiry Officer's report, in order to enable him to submit a proper reply to the second show-cause notice but further, the enquiry against the respondent was held ex pane and the respondent had questioned the very fact of the holding of the enquiry proceedings, as also the dismissal orders based upon the report of the Enquiry Officer, stand vitiated on account of the failure of the Management to furnish a copy of the Enquiry Officer's report to the respondent, inspite of demand made by him in this behalf. There are, however, stronger grounds for concurring in the decision of the learned Labour Court for setting aside the order of dismissal of the respondent. As already pointed out the plea of the respondent was that no enquiry was held on 3rd May, 1979. This plea was taken at the earliest opportunity in the letter of the respondent, dated 7th May, 1979. It was repeated in the letter, dated 15th May, 1979, and in the grievance notice, dated 29th May, 1979. There is strong evidence to suggest that this plea of the respondent is well founded. The respondent examined 2 witnesses before the learned Labour Court in support of this contention, namely, Afzal Ali and Muhammad Ilyas. Both were Time-Keepers in the appellant-Mills and are said to have been examined in the domestic enquiry against the respondent on 3rd May, 1979. Both of them, however, have denied that their statements were recorded in the domestic enquiry or that they appeared before the enquiry officer on 3rd May, 1979. Witness Afzal Ali stated that he was neither called for the domestic enquiry on 3rd May, 1979, nor he made any statement before the Enquiry Officer. He further alleged that his signature on his purported statement before the enquiry officer is forged. He also alleged that the sheet regarding the attendance of the respondent was subsequently prepared by him for the purpose of the enquiry proceedings and that the original sheet was changed. Support to this allegation is provided by the fact that the horizontal entries, for the dates from 1st to 30th against the names of the last 4 workmen, in the attendance sheet for the month of September, 1977, are all in a different ink from the entries against the earlier names. It is highly improbable that for working the presence of these 4 workmen different ink was used for every day of the month. The use of different ink in respect of the entries for the whole month would suggest that perhaps this attendance sheet was prepared or at least the entries were made at one sitting. As regards Muhammad Ilyas, he stated in his evidence before the learned Labour Court that on 3rd May, 1979, he was sick and had not gone to the Mills. He further asserted that he remained absent from 3rd May, 1979 onwards for 15 to 20 days and on account of his absence, he was charge-sheeted but the enquiry against him was dropped after he was pursuaded to sign the statement against the respondent. In support of his evidence, the witness produced before the learned Labour Court a certificate of Doctor Muhammad Azeemuddin, certifying that the witness was suffering from8 9 10 bronchitis with general debility since 3rd May, 1979. The witness also produced with his evidence the photostat copy of the charge-sheet, dated 16th May, 1979, which was served upon him. This charge-sheet shows that the witness was absent without leave from his duties since 3rd May, 1979, The witness also produced a long leave pass granted to him by the appellant-Mills showing that he had been granted leave from 18th April, 1979 to 2nd May, 1979. All these circumstances, particulary the medical certificate and the charge-sheet issued to the witness, strongly support his testimony that he had not attended the Mills from 3rd May, 1979. As such, he could not have been examined by the enquiry officer on that date. Both Muhammad Ilyas and Afzal Ali, who was complainant against the respondent, were important witnesses, and their evidence was relied upon by the enquiry officer in support of his findings that the respondent was guilty of misconduct and these findings in turn were the foundation for the dismissal orders in respect of the respondent. In view of the evidence of those 2 important witnesses together with the circumstances pointed out above, throwing doubts on the authenticity of the attendance sheets in respect of the respondent, it cannot be said that the respondent was absent from his duties with effect from 19th September, 1979, as alleged in the charge-sheet or in the report of the enquiry officer. Mr. Mahmood Ghani attempted to assail the evidence of these 2 witnesses on the grounds, firstly, that when they gave evidence before the learned Labour Court, they had ceased to be the employees of the appellant- Mills, secondly that those witnesses had been threatened by the respondent as appears from the application, dated 17th September, 1979, made by the appellant-Mills to the learned Labour Court and that finally, the learned Labour Court has found that the witnesses did sign the statements made to the enquiry officer and that they had appeared before the enquiry officer on 3rd May, 1979. Now, the mere fact that the witnesses had ceased to be in the employment of the appellant- Mills when they gave evidence before the learned Labour Court, does not mean that they had become dishonest witnesses or gave false evidence. If their subsequent evidence before the learned Labour Court cannot be relied upon by reason of the fact that they had ceased to be in the employment of the appellant-Mills, their earlier statements in support of the case against the respondent, assuming that they did make such statements, also cannot be relied upon. However, as discussed above, there is strong supporting evidence suggesting that the 2 witnesses had not given evidence suggesting that the 2 witnesses had not given evidence before the enquiry officer.
As regards the second ground on which Mr. Mahmood Ghani has assailed the evidence of these 2 witnesses, it may be mentioned that apart from the application of the appellant-Mills, there is no evidence to indicate that the witnesses in fact were threatened by the respondent. No question was even suggested to either of them in cross-examination that they had been threatened or were giving evidence under duress. As regards the finding of the learned Labour Court that the statements of the witnesses before the enquiry officer bear their signatures, it does not appear to be based on any tangible evidence. No doubt, the admitted signatures of the witnesses alongwith the statements allegedly bring their signatures were sent to the handwriting expert whose report is to the effect that the signatures are similar, but since the handwriting expert was not examined his report is inadmissible in evidence. As the Cr. P. C. Is not applicable to the proceedings before the learned Labour Court, section 510, Cr. P. C. Would not be attracted in the instant case.
12. It was contended by Mr. Mahmood Ghani that the finding of the learned Labour Court that the two witnesses, Afzal Ali and Muhammad Ilyas, had given statements before the enquiry officer on 3rd May, 1979, could not be challenged as no cross appeal or cross objections had been filed against the said finding. Support for this contention was from the decision of their Lordships of the Supreme Court in the case of Khairati v. Aleemuddin . This contention has no substance. The finding of the learned Labour Court was not only that the domestic enquiry against the respondent was invalid by reason of the failure of the Management to furnish a copy of the enquiry proceedings to the respondent but that further the appellant-Mills had "miserably failed to11 establish the misconduct against the applicant (respondent herein) by any cogent and convicing evidence." Even in Khairati's case relied upon by Mr. Mahmood Ohani, it has been held that a respondent can support a decree even on a point decided against him.
13. The upshot of the above discussion is that there is no tangible evidence on record to show that the respondent was unauthorizedly absent from his duties for a period exceeding 10 days from 19th September, 1977, as alleged in the charge-sheet. Subsection (5) of section 25-A, Industrial Relations Ordinance, requires the Labour Court, while hearing a grievance petition to go into all the facts of the case. It has been held by their Lordships of the Supreme Court in the Crescent Jute Products Ltd. v. Muhammad Yaqub , that the intention of the Legislature in enacting subsection (5) of section 25-A, appears to be to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal is based. It was, therefore, competent for the Labour Court and also for this Tribunal to go behind the domestic enquiry and to determine whether there is tangible evidence to support the orders of dismissal of respondent. It has been demonstrated that there is no tangible evidence in this behalf. I would accordingly concur in the findings of the learned Labour Court and would dismiss the appeal. PLD 1973 Kar. 167 1978 PLC 567 1981 PLC 200 1976 PLC 392 1980 PLC 997 1980 PLC 777 1977 PLC 485 1978 PLC 583 1975 SC M It 46 P L p 1976 Lah. 209 PLD 1973 SC 295 PLD 1978 SC 207