The appellant, who was employed as a general fitter in the Pakistan Machine Tools Factory Ltd., the respondents herein, was dismissed from service, vide letter, dated 15th September, 1981, on the basis of the charges stated in the show-cause notice, dated 13th August, 1981, which reads as follows :-- " It has been reported against you that you have entered into an undesirable activity which is subversive of discipline and issued a circular in the name of P. M. F. T. Officers Association (photo copy attached), containing highly objectionable material coupled with filthy language and wild allegations against the management of P. M. F. T. And gone even to the extent of levelling false, fabricated and unfounded allegations in the personal name of Managing Director of the company with a view to create unrest among the employees of the factory on the one hand and to defame and malign the position of the M. D. On the other."
2. The appellant challenged the order of his dismissal before the learned 1Vth Labour Court on various grounds including the grounds that the show-cause notice was time-barred and that he had not been allowed to lead his defence. The learned Labour Court, by its decision, given on 3rd May, 1982, repelled the contentions of the appellant and held that the misconduct of the appellant had been established in a .Proper domestic enquiry and the dismissal of the appellant was justified:
3. Mr. Choudhry Rasheed Ahmed, the learned counsel for the appellant assailed the impugned decision of the learned Labour Court on the following grounds :-
(i) that the show-cause notice, dated 13th August, 1981, was time-barred, being in contravention of clause (4) of Standing Order 15, and hence the dismissal orders in respect of the appel--lant, based on the said show-cause notice, are invalid ;
(ii) that the enquiry officer unreasonably rejected and disallowed the applications submitted by the appellant for calling of defence witnesses ; and (i.e) that the misconduct alleged against the appellant has not legally been established.
4. In support of his first contention, it was submitted by Mr. Choudhry Rasheed that the show-cause notice, dated 13th September, 1981, neither indicates when the circular against the management came to the notice of the management and more. Important, when the manage--ment same aware of the fact that the appellant was either the author of the circular or was responsible for its circulation. He further contended that neither in the domestic enquiry nor in the evidence before the learned Labour Court, the position in this behalf has been clarified and the only evidence on this point, which was led before the enquiry officer, indicates that the management came to know about the issuance of the circular in question in the last week of the month of Ramazan. The last week of Ramazan in 1981 commenced from 26th July, 1981. If, therefore, the evidence before the enquiry officer is to be believed that the management came to know of the issuance of the circular in question in the last week of July, 1981, clearly the management could not have become aware of the authorship of the circular or the person, who was responsible for its circulation before the said period. Since the show-cause notice was issued on 13th August, 1981, it would apparently be within one month of the management becoming aware of the issuance of the circular and its author. No doubt according to Mirza Muhammad Naseem, the President of Machine Tools Factory Workers'
Union who. Was examined by the appel--lant before the learned Labour Court, he had been informed by Mr. S. M. Naqvi, an officer of his Union on 20th June, 1981, that the officers of the respondent company had become aware of the issuance of the circular, but Mr. Naqvi himself, in his evidence before the enquiry officer did not support the version given by Mirza Muhammad Naseem and stated that the management had become aware of the issuance of the circular in the last week of the month of Ramazan, which I have already pointed out commenced from 26th July, 1981. I, therefore, am of the opinion that on the evidence on record, the show-cause notice would appear to be in time.
5. It was next contended by Mr. Choudhry Rasheed that the appel--lant bad been denied the opportunity of examining defence. The learned counsel invited my attention to the application, dated 29th August, 1981, submitted by The appellant to the enquiry officer requesting that Muhammad Rafique be summoned as a Court witness and examined by the enquiry officer. This request of the appellant, however, was rejected by the enquiry officer by his letter, dated 29th August, 1981. The enquiry officer, however, permitted the appellant by the same letter to call Muhammad Rafique as a defence witness, if he was so minded. I think that no exception can be taken to the letter of the enquiry officer advising the appellant to call Muhammad Rafique as a defence witness if he wanted to do so. Mr. Choudhry Rasheed has relied upon another application, dated 29th August, 1981, made by the appellant to the enquiry officer for sum--moning 12 persons as defence witnesses. In the penultimate paragraph of the said application, the appellant has submitted that as the persons cited in the list were beyond his approach and as further most of them were employees of the respondent company upon whom the manage--ment exercises a great deal of control and moreover as the said person: had refused to appear as witnesses unless summoned by the enquiry officer, they should be summoned by the enquiry officer. In spite of the above plea by the appellant, surprising enough the enquiry officer refused to summon the defence witnesses cited by the appellant and passed the following order on his application :- " The production of witnesses is your own responsibility. As such you yourself arrange. Any witness material to the facts will be allowed."
6. The enquiry officer should have realized that the appellant had not ,only shown his helplessness in arranging to produce his defence witnesses, most of them were the employees of the respondent company, but had categorically asserted that the witnesses were not prepared to attend before the enquiry officer, unless they are summoned by the enquiry officer. In the circumstances the rejection by the enquiry officer of the appellant's request that his defence witnesses be summoned was wholly unjustified and deprived the appellant of his right of defence.
The enquiry proceedings thus were rendered farcical. Even the learned counsel for the respondent company, Mr. Iqbal Afridi, was constrained to concede that the action of the enquiry officer, who incidentally was not examined before the learned Labour Court , was not proper.
7. Since the appellant was deprived of right of defence and his request for summoning of defence witnesses was unreasonably rejected, 1 would allow the appeal and set aside the orders of dismissal of the appellant and would direct that he be re-instated in service forthwith., Since the appellant's re-instatement is being ordered on a technical ground, I will give an option to the respondent company, if they so choose, hold a fresh enquiry against the appellant through another enquiry officer. The claim of the appellant to back benefits would depend upon the result of the fresh enquiry. If no enquiry is held against the appellant within a period of 3 months from the date of this order, it will be assumed that the respondent company have waived their right of holding a fresh enquiry against the appellant and in that case the appellant would be entitled to full back benefits.
8. Mr. Choudhry Rasbeed submits that though the witnesses have asserted in the enquiry proceedings that the management had become aware of the issuance of the circular in question attributed to the appellant in the last week of Ramazan, there is evidence to show that the company's officers were aware of the issuance of the circular and the identity of its author and the person who had circulated it much earlier. It will be open to the appellant in the fresh enquiry, if it is held, to take up this plea and the parties would then be entitled to lead evidence in this behalf.