1. DECISION ' ALI MUHAMMAD BALOCH (MEMBER).--- This appeal has been preferred under section 47(3) of the Industrial Relations Ordinance, 2002 filed before High Court of Sindh, Circuit Bench at Hyderabad, bearing # L.A. 106 of 2004 against the order dated 13-1-2004 passed by the learned Presiding Officer, Sihdh Labour Court # VI, Hyderabad, whereby grievance petition of the appellant has been dismissed. After coming into existence of this Tribunal, appeal in hand was received and allotted new # HYD-92 of 2010.
2. ' I have heard Mr. S.M. Saulat Rizvi learned Counsel for the appellant and Mr. Shaukat Ali Chaudhry learned Counsel for the respondent's bank. They have also submitted their written synopsis. After perusal of record and proceedings and arguments, I have come to the following:- 'This appeal directed against the order of the learned Labour Court as passed on 13-1-2004 and the basis of the order of the learned Labour Court are the two questions which basically relates with the facts and the respondents have converted the same into the legal questions, as the first question was the mandatory requirement of grievance notice as provided under the then I.R.O.
3. 2002, the relevant portion is reproduced hereunder:--- "46 Redress of individual grievances.--- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within one month of the day of which cause of such grievance arises."
4. The perusal of above referred section, reflects that there is no specific form or nature has been given by the law and in absence of any such form, anything in writing may be considered as "grievance notice". As the same point has already been considered by the Hon'ble High Court in some other case, as reported in 2009 PLC 160 and as because the respondents though take the said objection, but failed to point out under which form and condition the grievance notice may be served by the appellant. It is also the contention of the respondents that the same should have been served upon the employer who is the employer in the case, the respondents have failed to point out as the respondents establishment is a huge establishment spread over the four Provinces of Country and respondents have not placed on record that who was notified as "employer" as required under Standing Order Ordinance, 1968. The relevant definition of 'employer' is reproduced hereunder:--- "2.(c) "employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes---
(i) in a factory, any person named under Clause (e) of ,subsection (1) of section of the Factories Act, 1934 as Manager of the factory;
(ii) In any industrial establishment under the control of any department of the Federal or any Provincial Government, the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the department;
(iii) In any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment."
5. ' It is the respondents who have raised such objections before the learned Labour Court that the grievance notice has not been served upon the "employer", but it has not been denied by the respondents even they have admitted that Annexure "A/6" with the grievance petition is the true copy of the appeal received from the appellant. So, the above said admission reveals that appellant has approached the employer as required under the law before approaching the learned Labour Court, as the definition of "employee" as produced above specifically clear the position that who may be the employer as in clause (i) the owner of the commercial establishment and in clause (iii) person responsible to owner and in the case of the respondents main responsible person to the owner is the "President of the Bank" and no one else, therefore, the appeal as served upon the President of the Bank can not be trashed out and shall be considered as proper "grievance notice". Here, I had reproduced the definition of "employer" as given by the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for the reason that the appellant claim rights under the said Ordinance, therefore, all definitions shall be considered/taken into consideration as given by the said Ordinance as held by the Hon'ble Supreme Court of Pakistan in the case of ABDUL RAZZAQ v. EHSAN SONS, as reported in 1992 PLC 424.
6. ' Now the other point which is to be considered by this Tribunal is whether the appellant had committed misconduct or the same has been proved during domestic proceedings.
7. I am afraid that the learned Labour Court without considering both enquiry proceedings and reports have admitted them as true and established facts. I have gone through the enquiry proceedings regarding charge # 1 as levelled in charge sheet dated 28-9-2001. This enquiry consists upon only two pages, on first page i,e, Page # 121 of the R&Ps reveals that the said original complainant Mr. Rafaqat Hussain has not been examined. Whereas, the respondents themselves produced an Annexure "G" at Page # 105 of R&Ps, which reflects that the amount has been returned to the said complainant Mr. Rafaqat Hussain on 12-9-2001 before issuance of charge sheet in presence of witnesses by producing the said document, respondents themselves damage their case and if they want to establish the case against the appellant in presence of such receipts/requests the original complainant may be produced during the domestic enquiry, which has not been done. Moreover, no cross-examination has been conducted against the complainant who has been prepared by the management and so also no cross-examination has been conducted to the accused. It is difficult to say that which statement can be considered as proved.
8. It is settled law that no cross-examination means admitting the statement. So in this case both statements if admitted, so how it can be decided which is the correct and established fact.
9. It is a matter of fact that appellant had levelled allegation against the Accountant so why not the said Accountant was produced in the domestic enquiry in order to clarify the position. So, on the basis of such type of enquiry in my view major punishment cannot be imposed. I have also considered the allegations of breach of trust and fraud and also considered the statement of the appellant as he had 24 years service at the time of service of such charge sheet and respondents have not contended any where that his character was blemished and at a number of time he was served explanations/show cause/charge sheets or he was warned earlier. Under the circumstances, I am of the view that by such kind of enquiry, no charge has been proved against the appellant and he is entitled to be reinstated in service.
10. ' There are two dismissal letters and the second dismissal letter was in connection with the charge sheet dated 13-11-2001 again for commission of misconduct of breach of trust and fraud. In the said charge sheet allegations were levelled that the appellant during posting as Cashier on billing side had received an amount of Rs,7,500 against .a gas bill for the month of 17-3-2001 from one Mr. Muhammad Ilyas that he has deposited Rs,7,500 in respect of the above referred bill, but the same has not been credited/shown in the statement of gas bills of the gas company. Appellant refuted the charges and maintained that he had not received such gas bill and some one else has received amount and also put fabricated signature and about the stamp of the bank he had mentioned that he was not the custodian and Mr. Bhutto being Accountant is the custodian of such kind of stamps.
11. ' Perusal of enquiry proceedings and the documents placed before the learned Labour Court reveals that again the same enquiry like the previous one has been concluded in absence of original complainant and the bill as produced was for Rs,14070 and it is noted that by encircling the said figure and above the said figure amount of Rs,7,500 was written, but without any stamp of the concerned authority, so it is doubtful that the said bill is the genuine. I have also gone through the Page # 155 of the R&Ps, which purportedly a statement of the gas bills received on that particular date, but the same has not been filled in properly as all the relevant columns are not filled in accordingly and the said document does not bear any signature to prove that such statement was prepared by such and such person, checked by some other person and for the said particular date. So it is the lacuna on the part of the concerned authority, and authorities have failed to proper action against all relevant persons. Appellant had also put a question regarding presence of original bill with the prepared complainant who admitted that the same is not in his custody, but mentioned that he had seen the said bill in possession of the original complainant. In this enquiry the appellant was also put to cross-examination and cross-examination was conducted to the extent only to the signature on the bill. Admittedly the said bill was produced during the course of domestic enquiry and appellant had put his signature along with other participants of enquiry at the bottom of the bill and comparison of the two signatures reveals that there is a mark difference between two signatures and the same cannot be put against the name of the appellant. No question has been put to the appellant during the domestic enquiry regarding the stamp, though he had specifically mentioned in his reply that Mr. Bhutto is the custodian of the stamps and in the earlier case also he had levelled against Mr. Bhutto but the management of the respondents chosen the way by not calling Mr. Bhutto either as a witness or as an accomplice of the appellant as in earlier charge sheet it has been alleged that in connivance of Mr. Bhutto appellant had pocketed the said amount. So, the presence of Mr. Bhutto and the result of the enquiry against Mr. Bhutto is most vital and important to decide the allegations against the appellant, but in present case, appellant has been proceeded against and dismissed from service, though the allegations of connivance were levelled against the appellant along with Mr. Bhutto, hence I am of the view that second charge has also not proved and the findings of the learned Labour Court are not in accordance with the record and the evidence recorded by the learned Labour Court.
12. In view of the above findings, both dismissal orders are set aside along with the impugned order dated 13-1-2004 passed by the learned Presiding Officer, Sindh Labour Court # VI, Hyderabad are hereby set aside and the prayer of the appellant as prayed in the grievance petition before learned Labour Court is allowed. Respondents are directed to comply with the decision of this Tribunal within thirty days.