DECISION ' The appellant who was employed as a waiter in the Sind Club, the respondent herein, was dismissed from service with effect from 29th September, 1975 on the basis of a domestic enquiry in which it is said that it had been established that the appellant assaulted and attacked the Catering Manager of the Sind Club in the Office of the Accountant of the club. The appellant challenged the orders of his dismissal before a Junior Labour Court, Karachi. On the abolition of the Junior Labour Court the case was transferred for disposal to the learned Fifth Labour Court which dismissed the appellant's grievance petition, holding that the enquiry conducted against the respondent was absolutely valid, proper and legal and no prejudice, whatsoever, has been caused to him. The appellant came up in appeal against the said decision before my learned predecessor who, by a short order, dated 14th October, 1976, dismissed, the appeal in limine, on the main ground that it was not the function of the Labour Court to go into the merits of the case. The appellant, thereupon, filed a Constitutional Petition before the High Court, which in view of the decision of their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. v. Muhammad Yaqoob
(I) disagreed with the view taken by my learned predecessor and remanded the case to this Tribunal for deciding the to law in the light of the observations of the Supreme Court in Crescent Jute's case.
2. I have heard Mr. M. L. Shahani, who appeared for the appellant, and Mr. Syed Qamaruddin Hassan, who represented the respondents. Mr. Shahani has assailed the impugned decision of the Labour Court on the grounds :-
(1) that Mr. Gallaher, the member of the managing committee of the respondents exceeded the authority conferred on him by the {{FOOT NOTE}}
(1) P I) 197/3 SC 207 {{FOOT NOTE}} ' committee in directing the issuance of the second show-cause notice to the appellant and himself passing the orders of this dismissal ;
(ii) that the enquiry proceedings were vitiated on account of the fact that the Enquiry Officer was not an independent person and
(iii) that the Enquiry Officer played the role of a prosecutor and cross-examined the defence witnesses so as to make out material for rejecting or disbelieving their testimony.
3. In support of his first contention Mr. Shahani relied upon the Resolution passed by the Managing Committee of the Sind Club on 15th September, 1975 conferring certain authority upon Mr. Ghallaher. The material portion of the minutes of the Committee reads as follows :- ' The Committee considered the complaint from Mr. Rais Khan, Catering Manager, that at about 11 a.m. On Saturday 13th September, Abdul Rashid, Waiter, is alleged to have committed misconduct in that he assaulted the former in the office of the Accountant.
' The Committee decided that all correspondence, orders and decisions in this connection, will be signed on behalf of the Managing Committee by Mr. J. F. C. Gallaher, D. S. 0., D. F. C. Member of the Committee.
' Further, should there be a necessity for an enquiry, it was decided to appoint Commander S. A.
Waheed (Retd.) Secretary of the Club to act as an Enquiry Officer and conduct an impartial Enquiry in the alleged misconduct providing full opportunity to Abdul Rashid to defend himself, and he would be required to submit his findings to Mr. J. F. C. Gallaher, D. S. 0., D. F. C.
' Sd/- ' Amir S. Chinoy, President."
' It was contended by Mr. Shahani that Mr. Gallaher was authorised by the Managing Committee of the Club to perform only two functions firstly, to sign on behalf of the Committee all correspondence, orders and decisions in connection with the case of the appellant, and secondly, that the report of the Enquiry Officer was to be submitted to him. It was strongly urged by Mr. Shahani that these two functions did not include the taking of decisions by Mr. Gallaher, particularly the decision to dismiss the workman if found guilty. According to Mr. Shahani there is clear distinction between merely signing correspondence and orders and taking decisions. On the other 1-and, it was contended by Mr. Syed Qamaruddin Masan, the learned representative for the respondents, that inasmuch as Mr. Gallaher, an important member of the Managing .Committee, was not only authorised to sign correspondence, orders and decisions, but further the report of the Enquiry Officer, was to be submitted to him, it should be presumed that he was duly authorised also to take decisions which he could sign. The wording of the minutes of the meeting of the Managing Committee does lend support to the contention of Mr. Shahani but on the other hand it should be remembered that the minutes were drafted and signed by persons not well-acquainted with the precise language used in drafting of legal documents and evidently -a whatever decisions the Managing Committee wanted to take in respect of this matter were recorded in the minutes while the matters relating to disciplinary action to be taken against the appellant was left to the sole discretion of Mr. Gallaher. This view finds support from the fact that on the one hand no member of the Managing Committee of the Club appears to have taken exception to the action taken by Mr. Gallaher and on the other hand even the appellant in his grievance petition has not specifically alleged that Mr. Gallaher acted beyond the scope of the authority entrusted to him.
4. In regard to the second contention, Mr. Sahahani invited my attention to the order, dated 13th September, 1975 issued by Commander S. A. Waheed, suspending the appellant. The said order reads as follows :- 'Abdul Rashid, ' Waiter, ' Sind Club, S. Book No, Karachi. Subject :-Suspension ' It has been reported to me about 10-40 a.m. Today, Saturday, 13th September, 1975 that whilst on duty you assaulted your Superior Officer, Mr. Rais Khan, Catering Manager of the Club in the Office of the Accountant of the Club.
' This act on your part is viewed as gross misconduct and pending further investigations you are placed under immediate suspension.
' During the period of suspension, you will not appear anywhere in the club premises and confine yourself to your allotted quarter in the Club.
' Sd/- (S. A. Waheed), Commander Secretary."
A bare perusal of the above order shows that not only the appellant was placed under suspension but further he was directed to be confined to his quarter in the military discipline fashion. Most important the alleged act of the appellant, in the said order, has been "viewed as gross misconduct." The law requires that the enquiries against an offending workman must be independent. In other words the enquiries must be conducted not only by a person who is un- connected with the incident for which the workman is being departmentally dealt with but further he must enter upon the enquiry with an open and fresh mind. A person who not only issues orders of suspension and the confinement to the quarter of the offending workman but further describes the action of the workman which has yet to be investigated and enquired into as "gross misconduct" can hardly be described as an independent person. It is difficult to expect that such a person will keep aside his prejudice when holding departmental enquiry against the workman charged for misconduct. The prejudice of the Enquiry Officer against the workman is also quite apparent from the manner in which he has held the enquiry shows that not only the Enquiry Officer has cross-examined the defence witnesses, thereby combining in himself both the role of Enquiry Officer and a prosecutor, but further has suggested questions to the witnesses and extracted from them replies which he has made the foundation for discarding and disbelieving their evidence. It may be pointed out that the appellant was not only supported by a number of employees of the Club but also an independent witness Nazar Sajjad, who belonged to the party of auditors who were auditing accounts of the Club at the relevant time. This witness has stated that he saw the Catering Manager kicking the waiter and giving him blows. However, surprisingly the Enquiry Officer has not touched upon this part of the evidence of Nazar Sajjad who was examined as a prosecution witness. Mr. Syed Qamaruddin Hassan attempted to argue that the important issue in the case was not whether the Catering Manager slapped or kicked the appellant but how and by whom the quarrel was initiated and whether the appellant had first assaulted the Catering Manager by catching the latter's neck-tie. I have referred to the evidence of Nazar Sajjad for the purpose of indicating that the Enquiry Officer, presumably because of his prejudice against the appellant, has omitted to take into consideration that part of the evidence which is favourable to the appellant. In the case of Mir Muhammad v. Karachi Pipe Mills Ltd., decided on 6th October, 1980 while dealing with the requirements of clause (4) of Standing Order 15 regarding the holding of enquiry, it was observed by this Tribunal as follows :- "Clause (4) of Standing Order 15 requires that the employer shall institute independent enquiries before dealing with charge against a workman. The expression "independent enquiries' postulates not only that the enquiries must be held; in a fair and impartial manner but that further they, must be conducted by a person who is independent and unconnected with either the charges against the offending workman, the person preferring the charges against him and the initiation of proceedings against him. The issuance of a show-cause notice is undoubtedly the institution of disciplinary proceedings and in fact is the first step in the taking of such proceedings. In my opinion, therefore, a person who orders issuance of such a notice cannot be said to be an independent person who could appropriately be appointed as the Enquiry Officer against the offending workman."
In view of the fact that the Enquiry Officer was not an independent person and since the mandatory requirement of law is that the enquiry must be held by an independent person the breach of this requirement would make the enquiry proceedings invalid. A dismissal order based upon such enquiry proceedings or the report of such Enquiry Officer would also be deemed to be invalid.
5. For the reasons discussed by me above, I set aside the order of the learned Labour Court and direct the re-instatement in service of the appellant. Since this order is being passed on the ground that there have been no independent enquiries against the appellant it will be open to the respondent to hold independent enquiries in accordance with the law against the appellant and the grant of back benefits to the appellant would be dependent upon the result of such enquiry. In case no such enquiries are held within two months from the date of this order, the appellant would be entitled to full back benefits.