DECISION ' This appeal is directed against a decision of the learned Fourth Labour Court, given on 27th October, 1979, dismissing the grievance application filed by the appellant workman challenging his dismissal from service.
2. The appellant, who was a double-sider in the respondent establishment, was dismissed from service, with effect from 3rd March, 1979, vide order of the respondent establishment, dated 21st March, 1979. The dismissal orders are said to be based on the report of the Enquiry Officer who found the appellant guilty of riotous and disorderly behaviour during working hours and acts subversive of discipline falling under sub-clause (h) of clause (3) of Standing Order 15. The appellant assailed his dismissal order before the learned Fourth Labour Court, which dismissed his application and upheld the said order. The appellant has accordingly approached this Tribunal in appeal.
3. I have heard Mr. Mirza Mohammad Kazim, the learned counsel for the appellant workman, and Mr. Abdul Hadi Fareed, who appeared for the respondent establishment. Mr. Mirza Muhammad Kazim submitted that the entire proceedings in the domestic inquiry against the appellant are invalid and referred me to five circumstances in support of his contention. He submitted that the charge-sheet served upon the appellant is perverse and vague. This 'contention was based on the fact that the charge-sheet merely stated that when the appellant was asked by the section incharge as to why he had remained absent without permission for about three hours, the appellant was rude to him and used unbecoming and improper language, without the charge- sheet specifying in what manner the appellant was rude or stating the exact words used by him.
No doubt the charge-sheet could have been more specific but I think, as it is, it gave due notice to the appellant of the misconduct alleged against him. The charge-sheet thus fulfilled the requirements of clause (4) of Standing Order 15. In the case of Mls. Sandoz Pakistan Limited v.
Saeed Butt and others, decided on 1st October, 1979, it was observed by this Tribunal as follows : - "If in a criminal trial, an irregularity or omission n a charge-sheet does not vitiate the ,trial or necessitate reversal of a finding or sentence unless there has been a failure of justice. I do not see how lack of particulars, specially non-essential particulars, can invalidate a domestic enquiry based upon such a charge-sheet."
IIf a workman uses filthy and abusive language it would neither be necessary nor desirable that these abusive and filthy words should be repeated in the charge sheet. The requirement of clause
(4) of Standing Order 15 is merely to bring to the notice of the offending workman the misconduct in respect of which it is decided to take disciplinary action against him. As already pointed out, this requirement is fulfilled in the instant case.
4. It was next contended by Mr. Mirza Mohammad Kazim that the appellant was not permitted to be assisted by a work nan of his choice, in contravention of the proviso to clause (4) of Standing Order
15. The said proviso requires that a workman who is being proceeded against for misconduct, and it is proposed to award him the penalty of dismissal, is entitled to be assisted at the domestic inquiry, by a workman of his choice employed in the establishment. The appellant had nominated one Mohammad Gul to assist him in the domestic inquiry. The Enquiry Officer, however, did not permit him to be assisted by Mohammad Gul on the ground that Mohammad Gul had been dismissed by the establishment and was not an employee of the respondent establishment. No doubt the admitted position is that before the inquiry against the appellant was held, Mohammad Gul was ordered to be reinstated in service by a learned Labour Court, but it appears that he did not join his duties at the mills, and instead challenged, by way of appeal, the orders of the learned Labour Court, which had allowed him only half back benefits claimed by him. The appeal of Mohammad Gul was ultimately dismissed by this Tribunal by its order, dated 1st April, 1979. The statement of Mr. Abdul Hadi Fareed, Manager Administration in the respondent establishment, that Mohammad Gul had not joined his duties in the respondent establishment, despite the Labour Court's orders for his reinstatement in service, has not been controverted. Mohammad Gul himself was also not produced before the learned Labour Court to show whether he had actually joined his duties in the respondent establishment. Since Mohammad Gul appears not to have joined his duties in the establishment mills and on the contrary preferred an appeal, the Enquiry Officer cannot be said to have acted illegally in not permitting the appellant to be assisted by Mohammad Gul. His bona fides can be gauged from the fact that he was ready to allow the appellant to be assisted by any one from among the for thousand workers employed in the respondent establishment, but the appellant refused his genuine offer. I, accordingly, see no force in this contention of the learned counsel of the appellant.
5. It was next contended by Mr. Mirza Mohammad Nazim that no statements of the complainant and his witnesses were recorded by the Enquiry Officer. In support of his plea, the learned counsel relied upon the note at the foot of the letter, dated 17th February 1979, from the appellant to the respondent establishment and the evidence of the appellant workman in the Labour Court. It is not proved when this note was recorded or whether the facts stated in the note are correct or not but in view of the stand taken by the appellant before the learned Labour Court that on 18th February 1979, when the enquiry is said to have been held by the Enquiry Officer, neither the complaint nor his witnesses were present, it was necessary for the respondent establishment to controvert this fact by either examining the Enquiry Officer or the witnesses examined in the enquiry, which they failed to do. The only person examined on behalf of the establishment was Abdul Hadi Famed who was admittedly not present during the enquiry and had no persona! Knowledge in regard to it.
There is thus no tangible evidence to show when, if at all, the complainant and the witnesses were examined in the inquiry. No doubt Abdul Hadi Fareed has produced the inquiry papers, including the statement of the witnesses said to have been recorded in the domestic inquiry, but since neither the enquiry officer nor the persons said to be examined in the inquiry were produced before the learned Labour Court, the more production of the so-called inquiry proceedings is of no assistance to the respondent establishment. It, therefore, cannot be said that any persons were in fact examined during the inquiry. A further circumstance in support of this view is that the report of the Enquiry Officer does not even state the names of the witnesses examined in the inquiry.
' It was next contended by Mr. Mirza Mohammad Kazim that the findings in the report of the Enquiry Officer are perverse as they are based on no evidence. The said report merely gives details of the dispute between the Enquiry Officer and the appellant regarding nomination of the workman to assist the appellant during the inquiry proceedings, but does not as already pointed out, even mention the names of the persons whose statements were recorded during the enquiry. Moreover, it does not state what evidence was given by the witnesses. In the circumstances, I am inclined to agree with the submission of Mr. Mirza Mohammad Kazim that the Enquiry Officer's report is perverse as it does not refer to the evidence upon which the findings are based. It does not even state the nature of the misconduct which was established against the appellant.
7. It was next contended by Mr. Mirza Mohammad Kazim that in spite of the fact that the appellant had demanded a copy of the Enquiry Officer's report the same was not supplied to him till the orders of his dismissal were communicated to him. No doubt, in the printed second show-cause notice served upon the appellant, it is stated that a copy of the Enquiry Officer's report was appended to the said notice but there is no proof that in fact copy of the report was annexed thereto. The person who had despatched the said notice was not examined nor was any other evidence led to show that in fact a copy of the report was appended to the said notice or delivered to the appellant. There is, thus, no evidence to controvert the sworn testimony of the appellant that a copy of the report was only supplied to him alongwith the dismissal order, though he had demanded a copy of the report. I am, therefore, inclined to the view that no proper opportunity was given to the appellant to challenge the Enquiry Officer's report or the evidence allegedly recorded in the Enquiry against him.
8. For the reasons stated by me above, I am of the view that the enquiry proceedings, from the stage after the service of the charge-sheet, were not only defective but invalid. I would, therefore, set aside the impugned order of the learned Labour Court as well as the dismissal orders in respect of the appellant and would direct that he be re-instated in service. Since the dismissal orders are being set aside on purely technical grounds, by reason of defect in the Enquiry proceedings after service of the charge-sheet, it would be open to the respondent establishment to commence fresh enquiry proceedings against the appellant from the stage after service of the charge-sheet, i. e.
From the stage of appointment of Enquiry Officer and recording of evidence. The payment of back benefits to the appellant will depend upon the results of the said enquiry. In case no enquiry is held against the appellant within two months from the date of this order the appellant would be entitled to full back benefits.