DECISION These are counter-appeals, one by workman, Hamid Ali Khan and the other by the Pakistan Insurance Corporation. Both are directed against the decision of the learned Fifth Labour Court, given on 10-12-1981, upon the grievance petition filed by workman Hamid Ali Khan challenging the termination of his services. By the impugned decision the learned Labour Court has directed the re-Instatement in service of workman Hamid Ali Khan but at the same time has given on option to the Insurance Corporation to hold a. Fresh enquiry against the said workman and has made the payment of back benefits to 1 he workman dependent upon the result of such an enquiry. This order will dispose of both the appeals.
2. The relevant facts for the purposes of these appeals shortly stated are that workman Hamid Ali Khan, to whom I will refer for the sake of brevity as the 'workman' wa13-4-1980, between 1-W p. m.
And 1-30 p . m., in the office of Mr. Mohammad Ahmed, A. D. O in the Corporation. According to the version of Mr. Mohammad. Ahmad, the workman approached him for permission to come late on the following day but he dill not accede to the request of the work-- sum as a similar request had been made by the workman to his Incharge, M=. Hanif Tahir, who had rejected the same. The refusal of the workman's request, according to Mr. Mohammad Ahmad. Infuriated the workman who beat him black and blue though Mr Mohammad Ahmad offered no resistance. The version of the workman, on the other hand, is that he was sent for by Mr. Mohammad Ahmed and the Departmental Officer Mr. A. H. Hashmi on the pretext that they wanted to discuss important matters with him in connection with the union activities, and when he went to see them on their direction, they sought his co-operation to break the unity of the workers' union but since he refused to collaborate in their resign they slapped and beat him. Since the incident took place in the Office of the Corporation the matter was brought to the notice of the Chairman of the Corporation. A charge-sheet was, accordingly, issued to the workman on I5-3-1980. The workman submitted his reply to the said charge-sheet but as it was not found satisfactory by the management a domestic enquiry was ordered against the workman. The domestic enquiry proceedings were conducted by the Enquiry Officer. Mr, Riaz Ahmed Malik, on 21st, 22nd, 23rd, 24th, 26th and 27th April, 1980. On behalf of the Management, the Enquiry Officer examined Mr. Mohammad Ahmad, A. D. 0., Mr, Hanif Tahir, Incharge of the Section in which the workman was employed, Mr. S. K. Ahmed, Assistant Manager, and Mr. Inayat Rasool, while on behalf of the workman, beside the workman, witnesses Idrees, Rauf Shah, Nazeer Ahmed Butt, Abdul Rasheed, R. A. Sohail and Mr. Shahid Javed - were examined. As the Enquiry Officer in his report held the charges against the workman, established a second show-cause notice was issued to the workman to which he submitted a reply but since the reply did not find favour with the management, the workman's services were ultimately terminated, vide order, dated 19-5-1980 3, The workman challenged the order of termination of his services through a grievance petition filed before the learned Fifth Labour Court. His grievance petition, however; was dismissed by the learned Labour Court by its order, dated 2-4-1981, on the ground that it was not maintainable since the Standing Orders were not applicable to the Corporation. On appeal to this Tribunal by the workman, the said order of the learned Labour Court was set aside, by the order, dated 24-8-1981, and the matter was remanded to the learned Labour Court for decision on merits. On remand the learned Labour Court has passed the impugned decision.
4. I have heard Mr. A. T. Mahmood, who appeared for the appellant, and Mr. Samiullah Khan, who represented the Corporation.
5, The learned Labour Court has set aside the order of termination of service of the workman and ordered his re-instatement on the following grounds :-
(i) The statements recorded in the domestic enquiry are invalid and cannot be acted upon as oath were not administered to the Com--missioner.
(ii) The workman was seriously prejudiced in his defence as he was not given adequate time to submit a reply to the charges levelled against him.
(i.e) The enquiry proceedings were further vitiated as the person who issued the charges-sheet to the workman and appointed the Enquiry Officer, remand present in the enquiry proceedings and also issued the order of termination of services of workman.
(iv) The enquiry proceedings are also vitiated by the fact that the counter version of the workman was not considered by the Enquiry Officer.
6. In support of its first objection, the learned Labour Court purported to rely on the decision of the Punjab Labour Court reported in 1976 PLC 779. 1 have perused that judgment but there is no discussion in that judgment as to the effect of non-administration of oath to witnesses in a domestic enquiry. There is, however, a decision of the Labour Appellate Tribunal. N.-W. F. P reported as Khyber Tobacco Company, Mardan v. Labour Union (1975 PLC 282) to the effect that failure to adminster oath to witnesses examined in a domestic enquiry is not a mere commission contemplated by section 13 of the Oaths Act, 1973, but a flagrant violation of sections 4, 5 and 14 of the said Act and hence the learned Labour Tribunal held that the domestic enquiry proceedings were invalid. It appears that the attention of neither the learned Labour Court nor that of the Labour Appellate Tribunal, N.-W. F.P. Was invited to the decision of their Lordships of the Supreme Court reported as Abdul Lateej Niazi v. Government of West Pakistan (PLD 1967 SC 62). That was a case in which Government Servant was dismissed from service after holding of a domestic enquiry in which witnesses were examined without administering oath to them as required by the Oaths Act.
Relying upon the decision of the Privy Council in the case of Mohd. Sugal Esa v. The King (AIR 1946 P C 3), their Lordships repelled the contention that non-administration of oath to the witnesses vitiated the enquiry and observed as follows : -- "The second ground on which leave was granted was to consider whether the evidence in the enquiry, which was not recorded on oath could be considered as evidence at all. Mr. Zullah informed us that the practice in departmental enquiry was not uniform on this point. Some enquiry officers considered that they were competent to administer oaths while others thought that no oath should be administered to witnesses. However, Mr. Zullah was contained to admit that section 13 of the Oaths Act was clearly available to save the validity of statements without oath such as were made in the enquiry to the present case.. Mr. Zullah himself referred to the case of Muhammad Sugal v. The King (AIR 1946 P C 3) (a case from Somaliland where the law on the subject was similar to the Indian law) and section 13 of the Oaths Act coming under examination, the Judicial Committee held that it was quite unqualified in its terms and there is nothing to suggest that it is to apply only when the omission to administer the oath occurs per incuriam. '
This view was followed by the Lahore High Court in a criminal case in the case of Naj Khan v. The Stare (1974 P Cr. L J 237) In view of these authoritative~ pronouncement, the objection taken to the enquiry proceedings on the ground that oath was not administered to the witnesses has no substances and must fail.
7. I am also not satisfied that adequate time was no given to the workman to submit his explanation or that on the sai0 account the enquiry proceedings stand vitiated. The charge-sheet was admittedly served on :he workman on 15-4-1980 and he was directed to submit his written explanation by the close of office on 17-4-1980. This time was extended to 19-4-1980, As such the workman was given clear four days' time to submit his expla--nation in regard to a simple charge of assault on an Officer of the Corporation. This period, in my humble opinion, was quite adequate for the workman to prepare and submit his reply and in fact he submitted a detailed reply to the Management, covering three closely typed pages, on 20-4-1980. Alongwith his reply statement explanation, the workman had even appended the list of his witnesses.
8, The third ground on which the learned Labour Court has held the enquiry proceedings to be invalid or prejudicial to the workman also does not appear to me to be sound. It is true that the person who issued the charge-sheet to the workman and appointed the Enquiry Officer was- present during the enquiry proceedings and issued order of his dismissal, but the assumption of the Labour Court that this Officer was also the de facto com--plainant is not well founded. The sole material which persuaded the learned Labour Court to assume that this Officer who was Secretary of the Corpora--tion, was the complainant was that no complaint was made by the assaulted officer, Mr. Mohammad Ahmad, Assistant Departmental Officer in the Corporation. However, Mr. S. K.
Ahmed, Assistant Manager in the Corporation, in his statement before the Enquiry Officer, has stated as follows :- " We all the three Officers went to the Chairman on 14-4-1980 at 9-15 hours and I myself related the incident to the Chairman. Mr. Hashmi and Mr. Tahir also supported my statement and told Chair-- man that Mr. S. K. Ahmed has been informed by them. Then the Chairman put some dire& question to Mr. Tahir and Mr. Hashmi and they related the incident to him."
9. It is thus, clear that the matter was reported to the Chairman of the Corporation on the very next day of the incident and it was on his direction that the charge-sheet was issued to the workman. .As Secretary of the Corporation he would appear to be the appropriate person to take action on behalf of the Corporation, no fault thus can be found in his action in issuing the charge-sheet to the workman, appointing the Enquiry Officer or signing the formal order of discharge of the workman. Furthermore since some one had to watch the proceedings before the Enquiry Officer on behalf of the Corporation, the Secretary of the Corpora--tion was the proper person to do so.
Moreover, neither any objection appears to have been taken by the workman to the presence of the Secretary at the enquiry proceedings nor it has been shown how his presence prejudiced the workman in his defence.
10. The fourth ground on which the learned Labour Court has held the enquiry proceedings to be invalid, however, has considerable force. As already pointed out, there are two versions of the incident, one given by Mr. Mohammad Ahmed and Mr. Hashmi, and the other of the workman.
While Mr. Mohammad Ahmed claims that the workman assaulted him as he had refused the workman's request for being allowed to attend late on the following day because the workman's Section Incharge, Mr. Hanif Tahir, had already rejected the request of the workman, the workman's version is that he was called by Mr. Muhammad Ahmed and Mr. Hashim and asked to collaborate with them to quash Union activities and when be declined to do so they assaulted and beat him.
This version was repeated by him before the Enquiry Officer but the Enquiry Officer has completely ignored and overlooked the version of the workman and not examined or considered the same.
11. There are also circumstances indicating that the Enquiry Officer---s report is not based on the evidence recorded in the enquiry proceedings. The Enquiry officer has assumed that permission by the workman for coming late on the following day was originally sought from the Section Incharge, Mr. Hanif Tahir, however, categorically denied that any such permission was sought from him by the workman. The Enquiry Officer has further found that although Mr. Mohammad Ahmed had originally agreed to the workman coming late on the following day but when he was informed by Mr. Hanif Tahir that he had refused him such permission he also rejected the request of the workman. However, in his evidence before the Enquiry Officer, Mr. Hanif Tahir categorically denied that he had discussed any such matter with Mr. Muhammad Ahmed. If what Mr. Hanif Tahir states is correct, then it needs to be further examined why Mr. Muhammad Ahmad, after apparently agreeing to the workman coming late on the following day, reversed his decision and this in turn needs a much closer examination of the cause of the inc16ent and the circumstances in which it happened. I do not wish to dilate more upon this matter or to examine further the evidence before the Enquiry Officer by reason of the order which I propose to make and that is to uphold the decision of the learned Labour Court and to dismiss both the appeals. The appeal of the Corporation is dismissed on the ground that a proper dl. Mestic enquiry was not held and that neither the version of the workman was examined nor the evidence recorded in the domestic enquiry has been properly appraised. The appeal of the workman, claiming back benefits is dismissed, on the authority of the decision of their Lordships of the Supreme Court in the case reported as Islamabad Club v. Punjab Labour Court No. 2 (PLD1980SC307) as the charge against the workman have not been properly examined not on the material at present on record can it be said that they are wholly groundless It is only after a proper domestic enquiry is held according to law that it can be determined by the Management whether the workman is guilty of an act of misconduct and, if so what punishment should be imposed on him. I would only add that if no proper inquiry is held against the work--man within two months from the date of this order it will be assumed that the Corporation has declined to avail of the option of holding an enquiry against the workman and in such circumstances the workman would be entitled to full back benefits.