DECISION This appeal by the Management of the Jamia Spinning and Weaving Mills Ltd., is directed against the decision of the learned second Labour Court given on 5th November, 1980, allowing the grievance petition of the respondent workman and directing his reinstatement in service with full back benefits but at the same time giving an option to the Management to institute and hold a fresh enquiry against the respondent based on the original cause of action.
2. The circumstances in which this appeal has arisen briefly stated, are that there appears to have been a rivalry between the Union of which the respondent was at the relevant time the treasurer, and which Union was the C. B. A. In the appellant establishment, and another Union which had the support of one Farid Shah. It appears that on 6th October, 1977 an incident took place between the respondent and Farid Shah. It is claimed by the respondent that this incident was in consequence of the rivalry between the two Unions. The respondent was charge-sheeted in respect of this incident and was required to attend the domestic enquiry to be held by Abdullah Khan, the Security Officer of the appellant-Company. The respondent is said to have attended the enquiry held on 18th July, 1977, but after Farid Shah gave his statement to the Enquiry Officer, he and the workman assisting him in the enquiry both walked out without cross-examining Farid Shah or recording their signatures on Farid Shah's statement. The Enquiry Officer, accordingly, is said to have held the remaining enquiry ex parte and submitted his report on 21st October, 1977 to the Management, holding that the misconduct of the respondent, as stated in the charge-sheet, had been fully established in the domestic enquiry. On the basis of this report the respondent was dismissed from service with effect from 5th November, 1977. The respondent challenged his dismissal orders before the learned Labour Court which set aside the same and directed his reinstatement with full back benefits. The appellant establishment preferred an appeal against the said decision to this Tribunal and by the order, dated 22nd September, 1979, this Tribunal upheld the orders of re- instatement in service of the respondent but permitted the appellant establishment to continue with the enquiry from the stage of second show-cause notice after supply of copy of the Enquiry Officer's report to the respondent. It appears that in compliance with the directions of this Tribunal, the respondent reported for duty on 23rd September, 1979. On the same day, the appellant establishment served upon him a fresh show-cause notice and ultimately, on 7th October, 1979, dismissed the respondent from service. The respondent thereupon filed a fresh grievance petition before learned Labour Court which has for the second time directed the reinstatement in service of the respondent, but at the same time given an option to the appellant establishment to hold a fresh enquiry against the respondent. The appellant establishment has come up in appeal to this Tribunal in the second round of litigation.
3. I have heard Mr. Itrat Puri, the learned representative for the appellant establishment, and Mr. Mirza Muhammad Kazim, who appeared for the respondent workman.
4. The learned Labour Court set aside the orders of dismissal of the respondent on three grounds, firstly, that he has not been given a proper opportunity of defence, secondly that the Enquiry Officers report contained contradictory and false statement, not supported by evidence and that lastly the appellant establishment had failed to adduce evidence to substantiate its charges against the respondent. Now as regards the first point, it is an admitted position that the respondent had cited two defence witnesses, by name Shoukat Ali and All Hyder. According to the Enquiry Officer, Abdullah Khan, who was examined both before the learned Labour Court and by this Tribunal the two defence witnesses were summoned to appear before him but they failed to appear and hence they were not examined. In support of this action, the Enquiry Officer relied upon the letter, dated 15th October, 1977, which is Exh. 5-A on record of the first proceedings before the learned Labour Court. Both these witnesses were admittedly employees in the appellant establishment and it was the responsibility of the Management to ensure their attendance before the Enquiry Officer. It is claimed by the Enquiry Officer that the letter, dated 15th October, 1977, was duly served upon both the defence witnesses. This, however, was strongly denied by one of the defence witness, Ali Hyder, who was examined before the learned Labour Court. Even if it be assumed that the two witnesses were served, the Management should have taken necessary steps to ensure their appearance before the Enquiry Officer. This, however, the Management failed to do.
No action was taken by the Management against the two defence witnesses for failing to appear before the Enquiry Officer. This seems to indicate that the Management either did not want or was not interested in the appearance of the two defence witnesses before the Enquiry Officer. This in turn seems to throw a cloud on the whole enquiry proceedings and suggests the reason for the respondent to walk out from the enquiry after he had attended the same. It may be noted that there is neither any cross-examination of Farid Shah nor there is a note in the enquiry-proceedings that the respondent or the workman assisting him had refused or not desired to cross-examine him. Perhaps it was the refusal of the Enquiry Officer to permit the cross-examination of Farid Shah by the respondent or his general attitude of antagonism which impelled the respondent to walk out from the enquiry. In any case the denial by Ali Hyder that he was served with the letter, dated 15th October, 1977, for appearance before the Enquiry Officer, the failure of the Management to take adequate steps for the production of the two defence witnesses, who were their employees, before the Enquiry Officer and the non-mention in the enquiry proceedings that the respondent had refused to cross-examine Farid Shah, do suggest that enquiry was neither fair nor proper and that adequate opportunity was not given to the respondent to defend himself.
5. Coming next to Enquiry Officer's report the learned Labour Court has stressed the fact that whereas in the first page of the report, the Enquiry Officer has stated that the two defence witnesses had complied with the letter of appearance before him, in the second page of his report he has asserted that they had failed to appear before him. Mr. Itrat Puri sought to argue that what the Enquiry Officer wanted to convey in the earlier part of his report was that defence witnesses were served and not that they had appeared before him. I regret that I do not find force in his contention. The relevant part of the Enquiry Officer's report reads as follows :- {{URDU TEXT}} There appears to be a further inaccuracy in the Enquiry Officer's report. According to that report, the respondent was present throughout the recording of the statement of Farid Shah but thereafter walked out while according to the Enquiry Officer evidence before this Tribunal the respondent Fatehul Qadeer had not taken part in the enquiry proceedings. Further doubts about the veracity of the Enquiry Officer's evidence and his report arise on account of the fact that before the learned Labour Court be had produced only a small part of the enquiry proceedings, including his report.
The remaining part of the enquiry proceedings consisting of ten sheets which include the statement of witnesses and complaining Farid Shah, were not produced before the learned Labour Court. He was, accordingly, summoned to appear before this Tribunal and the remaining ten sheets were produced by him. He was asked a specific question as to why these ten sheets were not produced before the learned Labour Court but he was unable to offer any explanation. His failure to produce these important documents before the learned Labour Court gives rise to a suggestion that either there was something in these pages which the Management did not want the Labour Court to see or possibly there has been some alterations in these documents. These doubts are strengthened by the absence of the signatures of the respondent on any page of the enquiry proceedings.
6. Subsection (5-A) of section 25-A, I. R. 0., requires Labour Court, hearing a grievance petition to go into all the facts of the case. In the case of Crescent Jute Products v. Muhammad Yaqoob , it has been held by their Lordships of the Supreme Court that the intention of the Legislature in enacting subsection (5-A) of section 25-A appears to be to provide another forum in determining the grievance afresh after considering the facts, on which any impugned decision is based. It was specifically held in that case that in the absence of any relevant evidence the Appellate Court was justified in accepting the appeal of the employee by holding that his dismissal had not been shown to be warranted on the factual claim. In the instant case, although the Enquiry Officer was examined by the appellant establishment before the learned Labour Court and also his report was produced before the Court, the statements of witnesses on which the report was based were not produced before it. As such there was no material on the basis of which the learned Labour Court could hold that the misconduct of the respondent had been established. Moreover, as, already shown, the learned Labour Court rightly questioned the correctness of the assertions made in the Enquiry Officer's report. No doubt the remaining part of the enquiry proceedings has been produced by the Enquiry Officer before this Tribunal but I am not satisfied that any reliance can be placed on the same, since it was not produced before the learned Labour Court and no explanation was offered by the Enquiry Officer for its non-production.
7. The upshot of the above discussion is that I would concur in the finding of the learned Labour Court and would dismiss the appeal with the modification that the appellant establishment can, if it so wishes, institute a fresh enquiry against the respondent on the same cause of action within two months of the date of this order. Since the respondent's grievance petition has been allowed on a technical ground, the payment of back benefits would depend upon the result of the fresh enquiry. 1