DECISION ' The respondent, who was employed as a permanent workman in the appellant company, was served with two charge-sheets one, dated 24th March, 1979 and the other, dated 25th March, 1979.
The two charge-sheets read as follows "FIRST CHARGE-SHEET"
"It has been reported that at 3,30 p.m, on 22nd March, 1979 during working hours you bad left your work bench in the Tool Room and were present in the Maintenance Section beating a table with a hammor deliberately causing commotion and wilfully intending to cause damage to company's property. You were also shouting and inciting other workers to riotous and disorderly behaviour.
' You are hereby being charge-sheeted for misconduct under Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968.
' You are therefore directed to show cause within 48 hours on receipt of this charge sheet as to why disciplinary action against you should not be taken for committing the above act of misconduct.
"SECOND CHARGE-SHEET''
"It has been reported that at about 1235 hours on 24th March, 1979 you entered the factory hall leading the workers in procession whilst shouting slogans. You collected the workers near the door leading to the offices and were heard, shouting : {{URDU TEXT}} ' You were raising your arms in threatening manner and inciting other workers to riotous and disorderly behaviour.
' You are hereby being charge-sheeted for misconduct under Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
' You are therefore directed to show cause within 48 hours of receipt of this charge-sheet as to why disciplinary action against you should not be taken for committing the above act of misconduct.
' Lt. Col. (Rtd.) Bashir Ahmed, Director Administration and Personnel in the appellant establishment was appointed as an Enquiry Officer by the Factory Manager, A.
1. Alvi. The respondent objected to the appointment of Col. Bashir Ahmed as Enquiry Officer and on that account bycotted the enquiry proceedings. As the administration rejected the respondent's objection to the appointment of Col. Bashir Ahmed as Enquiry Officer and did not appoint another Enquiry Officer, Col. Bashir Ahmed conducted ex parte departmental enquiry against the respondent and submitted a report on 10th April, 1979 to the effect that both the charges had been established against the respondent. On the basis of this report the Chairman of the appellant- Company, after issuing a second show-cause notice to the respondent dismissed him by his Memorandum, dated 19th April, 1979, The respondent workman challenged the dismissal order before the learned Vth Labour Court which has allowed the respondent's grievance petition and directed the appellant company to reinstate him in service but at the same time has given an option to the appellant company to hold a fresh enquiry against the respondent in respect of the acts of respondent detailed in the two charge-sheets, The learned Labour Court has based its decision on the grounds, firstly, that copy of the complaint against the respondent workman was not supplied to him and that secondly, the Enquiry Officer was not changed though the respondent has objected to him. Aggrieved by the said decision of the learned Labour Court the appellant company has come up in appeal to this Tribunal.
2. Mr. Mahmood Abdul Ghani, the learned Representative of the appellant company has raised two contentions In respect of the impugned decision, namely
(1) Whether it is requirement of the law or natural justice that a copy of the complaint be furnished to the offending workman alongwith the charge sheet or show cause notice ?
(ii) Whether the mere objection to an Enquiry Office:, without even stating the grounds on which the objection is founded, makes such a person ineligible from holding the enquiry proceedings ?
' In respect of his first contention Mr. Mahmood Abdul Ghani, while conceding that there may be appropriate cases where the failure to furnish a copy of the complaint upon which the charges are founded may prejudice the offending workman in his defence, strongly argued that as the two charge-sheets which were admittedly received by the respondent workman contained full details of the accusations against him, including the time and the places of the incident and even the actual words of the slogans shouted by the respondent no possible prejudice would be said to have been caused to the respondent by not furnishing him a copy of the complaint. In support of his contention Mr. Mahmood Ghani, relied upon the decision of this Tribunal in the cases of Abdul Jabbar v. District Manager Government Transport Service (1), Mis. Lucky Silk Mills v. Khaliqur Rehman
(2) and a decision of the Indian Supreme Court in the case of Tata Engineering & Locomotive Co. v.
Prasad (3). In the Abdul Jabbar's case my learned predecessor while repelling the contention that in the circumstances of the copy of case non-supply of the complaint against the workman vitiated the enquiry proceedings against him observed as follows "In the third place it was contended that the appellant made an application Exh, R-I, for supply of a copy of the report against him, it is true he was not supplied a copy thereof. He was, however, ordered to be shown the report have gone through the statement of the appellant, he does not say that he was not shown the report. At any rate even if he was not shown the report, it cannot be said that it prejudiced his case in any way. The appellant was to meet the charge-sheet levelled against him. A copy of the charge-sheet was admittedly received by the appellant. He knew the charges levelled against him,"
' In the subsequent case of Mts. Lucky Silk Mills the contention that the enquiry proceedings were vitiated on account of non-supply of the complaint, which formed the basis of the charge-sheet against the offending {{FOOT NOTE}}
(1) 1969 PLC 416 (2) '1979 PLC 5
(3) (1969) 2 PLJ 812 {{FOOT NOTE}} ' workman, was repelled on the basis of the authority of the Supreme Court in the case of Muhammad Shamim v. Pakistan Tobacco Company (1). In the case before the Indian Supreme Court, one of the points which it was called upon to consider was whether the domestic enquiry upon which the dismissal or discharge was founded were vitiated on account of non-supply to the workman of the preliminary reports. Repelling this contention it was observed as follows :- " The last ground was the omission by the company to produce the preliminary reports on the strength of which the charges against those workmen were founded. Those reports were collected by the company to satisfy itself whether disciplinary action against these workmen should be launched or not. They did not form part of the evidence before the Enquiry Officer nor were they relied on by them for arriving at their findings. That being so, it was not obligatory on the company to disclose them and the omission could not be a ground for holding that their non-disclosure was a non-observance of the rules of natural justice."
3. Respectfully following the above authorities, I am of the view that since the two charge sheets admittedly served upon the respondent workman contained full details of accusation against him, the me non-supply of the complaint received by the Management against him did not vitiated the enquiry proceedings.
4. In respect of his second contention it was submitted by Mr. Mabmood Ghani that merely because a workman objects to an Enquiry Officer that does not entitle him or require the Management to change the Enquiry Officer, unless the objection is founded upon some tangible ground. The learned Representative invited my attention to the letter, dated 3rd April, 1979, written by the respondent workman to the Management objecting to the Enquiry Officer. In that letter, the only grounds upon which objection has been taken to the appointment of Col. Bashir Ahmed as Enquiry Officer are that he is the Principal Administrative Officer in the appellant company and that further he is responsible for employing and discharging workman issuing charge-sheets to them.
As already indicated, in the instant case, the charge-sheets were not issued by Col. Bashir Ahmed but by the Factory Manager, A. I. Alvi. Col. Bashir Ahmed who was examined before the learned Labour Court stated that he had no hand in the issuance of the charge-sheets against the respondent workman and that for the first time he came to know of the matter when he was appointed as the Enquiry Officer. The mere fact that Col. Bashir Ahmed was the Principal Personnel Officer in the appellant company was not a sufficient ground in support of the respondent's objection to his appointment. In the case of Muhammad Shafi v. District Manager, Government Transport Service, Lyallpur (2), this Tribunal while repelling the objection to the appointment of an Enquiry Officer, observed as follows "The learned Advocate Mr. Moinuddin who appeared for the Appellant, argued, in the first place, that Mr. Aziz Sabri was biased against the appellant and, therefore, he could not be appointed as Enquiry Officer. In this connection, the learned Advocate submitted that Mr. Aziz Sabri held preliminary enquiry against the {{FOOT NOTE}}
(1) 1975 SCM R 46 (2) 1969 P LC 803 {{FOOT NOTE}} ' appellant in respect of the misconduct relating to the girl. It was be who recommended that the appellant should be charge-sheeted. Mr. Sabri, therefore, should not have been appointed the Enquiry Officer. There is no force in this contention. There is nothing on record to show that Mr. Sabri had any animosity against the appellant. Mr. Sabri was examined by the Industrial Court. He was not cross-examined by the Respresentative of the appellant. His statement before the Industrial Court, therefore, must be accepted. In the absence of any suggestion by way of cross-examination to show that Mr. Sabri had any motive to falsely implicate the appellant, it cannot be held that he was biased."
' In the case of Muhammad Sultan Ahmed v. M/s. National Bank of Pakistan, Karachi (I), I had occasion to observe that the mere fact that the Enquiry Officer was subordinate to the punishing authority was per se no sufficient to bias on the part of the Enquiry Officer. In the instant case, though the Enquiry Officer was higher in rank than the Officer who signed the charge-sheet against the workman, the dismissal orders were issued by the Chairman of the company who was higher in rank than both the Factory Manager as well as Col. Bashir Ahmed.
5. I would finally refer to the following observation of the Karachi High Court in the case of The Superintendent, Kuliyar Estate v.
0. Kurtakko and another (2), which reads as follows :- "I am however allowed to accept the proposition that the Enquiry Officer would be deemed to be biased and thereby disqualified to conduct the enquiry, if the delinquent worker makes imputation against the Enquiry Officer. If that were the position an enquiry can be made impossible by the delinquent worker by making imputations against every Enquiry Officer, whoever he may be. I have also not my own doubt whether an Enquiry Officer would be disqualified, if he is connected with the allegation of the charge or if the had already taken a view in the said matter in another connection."
6. Since in the instant case the objections of the respondent workman to the appointment of Col. Bashir Ahmed as Enquiry Officer were not well founded nor there is anything on the record to indicate that Col. Bashir Ahmed was in any case prejudiced or biased against the respondent, the mere objections of the respondent to his appointment carry no weight and have to be ignored.
7. It was, however, contended by Mr. Safdar Hussain the learned counsel for the respondent workman, that though clearly the two charge-sheets indicate that a large number of workmen were involved in both the incidents in respect of which the respondent was charge-sheeted he alone was singled out for disciplinary action while no action, whatsoever, was taken against the other workmen. There may be a variety of reasons why no action was taken against other workmen. They may have been induced to participate in the incident by the respondent, who according to the charge-sheet was leading the workmen. It is also possible that they may have apologized to the Management and the Management may have accepted the apology and decided not to take any
8. {{FOOT NOTE}} 9.
(1) 1979 PLC 492 (2) (1971) 1 PLJ 23 {{FOOT NOTE}} ' action against them. It is also possible that the names of these workmen were not reported to the management. In any case, whatever be the reasons which prevailed with the management not to take action against the other workmen it neither exonerates the respondent from the serious charges levelled against him nor does it indicate that the appellant company was acting against the respondent on malice.
8. It was also sought to be argued by Mr. Safdar Hussain that the enquiry proceedings against the respondent were ex parte and he had no opportunity of defending himself. As already pointed out, it was the respondent himself who had boycotted the enquiry proceedings as he objected to the appointment of the Enquiry Officer. His mere objection to the Enquiry Officer upon wholly insufficient grounds did no entitle the respondent to boycott the enquiry. He did so entirely at his own risk. Since no ground has been established which could disqualify Col. Bashir Ahmed from holding departmental enquiry against the respondent, the act of the respondent in boycotting the enquiry proceedings suggests further defiance of the management by the respondents.
9. As already indicated, the charges against the respondent were established its a domestic enquiry. The charges against him were serious and constituted misconduct of very grave nature.
The Management was, therefore, fully entitled on the said charges to dismiss the respondent.
10. For the reasons discussed by me above, I find myself wholly unable to concur in the view taken by the learned Labour Court. I would, accordingly, set aside the decision of the learned Labour Court and allow the appeal.