1. DECISION ' ALI MUHAMMAD BALOCH, (MEMBER).--- Through this decision I intend to dispose of Appeal No,KAR- 484 of 2010 as preferred by the appellant/Top Can Industries (Pvt.) Ltd. Against the order dated 12- 2-2010 passed by the learned Presiding Officer, Sindh Labour Court No,III, Karachi, by which the Grievance Petition No,202 of 2006 under Standing Order 12(3) of the Standing Orders Ordinance, 1968 read with section 46 of the Industrial Relations Ordinance, 2002 was allowed and the worker was ordered to be reinstated in service with back benefits.
2. ' Both learned counsel for the parties were heard and they submitted their written arguments/synopsis. I have gone through the arguments, citations, record and proceedings of the Labour Court.
3. ' Brief facts of the case are that the respondent worker was served with the letter of suspension, which subsequently followed by a show cause notice dated 31-8-2005 for the alleged misconduct of negligence on the part of the respondent worker. Relevant para of the letter dated 31-8-2005 is reproduced hereunder:--- "In the latest incidence on 22-8-2005 you failed to perform your duties of Quality Control resulting in total rejection of 3740 cans of 2.5 Lit. DCO by Dalda Foods Limited. On thorough checking at our premises it was found that 30 to 50% of the cans were leaking. This could have been prevented if you had exercised proper control and conducted your work in line with the daily requirement."
4. ' The notice/letter was replied and the allegations were denied with specific contentions that before the said incidence, respondent worker had pointed out time and again for some mechanical/electrical faults, which were also mentioned in the log book, but the management has not considered the same. Said reply found unsatisfactory, as such, an , enquiry was directed with the signature of Adeel Ahmed Siddiqui vide letter dated September 5, 2005. Later on respondent worker was dismissed from service vide letter October 13, 2005. Being aggrieved with, respondent worker had preferred grievance notice and then filed Grievance Petition before learned Labour Court bearing No,202 of 2006. On notice appellant management had filed preliminary legal objections and reply statement dated 25-2-2006 along with number of documents. Respondent worker filed his affidavit in evidence and he was cross-examined at length. Whereas, on behalf of the appellant Mr. Mujeebur Rehman, Chairman/Director filed his affidavit in evidence and he was also cross-examined in the witness box.
5. ' Learned Labour Court while deciding the issues has considered all the relevant facts brought on record and I am in agreement with the reasons given by the learned Labour Court on all the four issues for the following basic reasons.
6. ' I have gone through the record, heard the parties on the basic issue of the statues of the respondent as a "workman" and I am afraid, how the appellant can raised such an objection after issuing dismissal letter under Standing Order 15 of the Standing Orders Ordinance, 1968 hence for ready reference, contents of the same are reproduced as under:--- "October 13, 2005.
7. Attention: Iqbal Khan-- Dismissal due to Gross Misconduct WPI&CE (Standing Orders) Section 15 Ordinance.
8. ' Following the different enquiries conducted by the under signed on 14-9-2005 and Mr. Adeel Siddiqui on 22-8-2005 etc. Regarding the frequent neglect of work as well as the serious negligence of duty on 22-8-2005 we are dismissing you from service with immediate effect as this dismissal is the punishment prescribed under the West Pakistan Industrial and Commercial Employment (Standing Orders) section 15 Ordinance.
9. ' The section applicable are 15-3(a-1) as well as 15.2 subsection (d).
10. ' A cheque for Rs,3,525 as final settlement is attached. Yours Sincerely, ' Sd/- Mujib-ur-Rehman."
11. ' After issuing dismissal order under Standing Order 15 Of the Ordinance, 1968 how the appellant company be allowed to retrack and raising the objection regarding the status of "workman", because no supervisor can be proceeded under Standing Orders Ordinance, 1968, as the same was promulgated for the "workers".
12. The other point which finds favour for the respondent worker is in respect of enquiry. I have gone through the alleged enquiry proceedings filed with reply statement as Annexure "R/5" (R&P).
13. Perusal of the same reflects that the same cannot be considered as proper enquiry, as 'neither the statement of complainant was recorded, neither the presence of accused was mentioned, nor the signatures of the respondent worker were obtained on each and every page. If it is an ex parte enquiry, the Enquiry Officer should have mentioned the same, but there is no endorsement of the like nature. Alleged enquiry proceedings reflect that no proper chance of defence was provided.
14. ' The next issue which also finds favour for the respondent worker, as the allegation levelled against him for negligence and the alleged enquiry proceedings and enquiry report could not reveal that such misconduct discussed in the enquiry properly. The problem which has caused loss to the management is not on the part of the respondent worker, as according to him he had time and again and continuously pointing out the defects but no one has taken it seriously. For that purpose he relied on the log book and the said log book was produced by the appellant with the written statement before learned Labour Court as Annexure "R/3". (R&P) and the perusal of the log book reveals that in a period of six months more than 100 times respondent worker pointed out the defects, but the management has not considered his pointation which resulted into losses, therefore, he can be blamed for such misconduct, because he is a worker and a subordinate and cannot go, beyond its authorities.
15. ' Another feature of the above matter is that suspension letter was issued by Adeel Ahmed Siddiqui, Production Engineer and show cause notice was issued by Mujeebur Rehman the alleged Chairman/Director of the appellant firm. Whereas order of enquiry was issued by Adeel Ahmed Siddiqui, Production. Engineer and appointed Mujeebur Rehman as Enquiry Officer. How a Production Engineer can appoint the Chairman/Director of the firm as an Enquiry Officer. The authority for appointment would rest with the Chairman/Director of the company and not with the Production Engineer. It is pertinent to submit here that the dismissal order was issued by Mujeebur Rehman, Chairman/Director (the letter of dismissal dated October 13,. 2005 did not have any mentioned of designation/authority of the signatory) if Mujeebur Rehman is an Enquiry Officer he cannot issue the dismissal letter and if he is the Chairman/Director, how he can become the Enquiry Officer, because the chance of reappraisal of evidence has been taken away from the respondent worker by the management by doing so. It is pertinent to mention here that no documentary proof was filed with the written statement or affidavit in evidence regarding the authority of Mujeebur Rehman. Whether Mujeebur Rehman was the Chairman/Director of the Company, as by Exhibit RW/2" (R&P) the presence of Managing Director has come on record, but no authorization of the Managing Director was filed nor mentioned in any of the letter issued by the appellant to the respondent worker. It means that whatever the proceedings initiated against the respondent worker all are without lawful authority and of no legal effect.
16. The upshot of the above discussions is that the findings of the learned Presiding Officer, Sindh Labour Court No, III, Karachi, vide order dated 12-2-2010 are in accordance with law, based on proper appreciation of evidence which does not require any interference by this Tribunal, hence the same are maintained and the appeal is dismissed: The interim relief as granted earlier is also recalled, as appeal has been dismissed.