This appeal is directed against the decision of the learned VIth Labour Court , given on 22nd October, 1981 upon the grievance petition filed by the respondent workman against his dismissal from service on the charge of misconduct, in that he has misbehaved with and beaten his superior, Spinning Master Israr Ahmad. The learned Labour Court, in its decision, has taken the view that though the respondent seems to have been present during the enquiry, it is not shown why he was not allowed to cross examine the witnesses testifying against him, (oat the enquiry officer wrongly assumed that because the respondent had walked out from the enquiry, therefore, he must have been participated in the assault on . The Spinning Master, Israr Ahmad, that in his complaint made to the management, Israr Ahmad has assigned minor role to the respondent but in his evidence before the Labour Court he has assigned him a major role and therefore, his evidence was not trustworthy, and that the enquiry officer was appointed even before the explanation of the respondent to the charge-sheet was considered by the management. On the basis of the above views taken by the learned Labour Court , it allowed the grievance petition of the respondent and directed the management to re-instate him in service with full back benefits.
2. I have heard Mr. Ghulam Shah, the learned counsel for the appellant company, and Mr. Muhammad Hanif Khan, who appeared for the respondent workman. Mr. Ghulam Shah assailed the impugned decision of the learned Labour Court on the grounds-(I) that the grie--vance petition of the respondent workman was not maintainable since no proper grievance notice as required by subsection (1) of section 25-A, I. R. O., was given by the respondent to the appellant company (2) that the domestic enquiry against the respondent was fairly and impartially held ; and (3) that there was overwhelming evidence in the domestic enquiry and also before the learned Labour Court to establish gross misconduct by the respondent.
3. In support of his first contention, Mr. Ghulam Shah invited my attention to the grievance notice, dated 12th November, 1980, which notice the respondent admitted, was the sole notice, given to the manage--ment. This notice suffers from a two-fold defect. In the first place it does not bear any signature nor there is any other tangible evidence on the record to show that it was given by the respondent himself. The second defec in the notice is that it is not only written on the letter head of a learned Advocate, Mr. Hayat M. Siddiqui, but further a perusal of the notice makes it clear that it has been given by the learned Advocate on behalf of the respondent. It was sought to be argued by Mr. Muhammad --- Hanif Khan, the learned counsel for the respondent, that inasmuch as the notice was given on behalf of the respondent therefore, it should be deemed to be a valid notice.
The essential requirement of a valid notice for the purpose of subsection (1) of section 25-A, I.R.O., is that the grievance notice must be given by the aggrieved workman himself or through his shop steward or collective bargaining agent. It is settled law now that a grievance notice be given through an advocate does not fulfil the requirements of subsection (1) of section 25-A ; and a grievance petition= upon such grievance notice is invalid and not maintainable (See P.L.D. 1980 S.C.
Page 80). The grievance petition of the respondent thus was not maintainable and is liable to be rejected on that ground alone.
4. I am also inclined to agree with the submission of Mr. Ghulam Shah that not only the domestic enquiry against the respondent was fairly and impartially conducted by the enquiry officer but that further there was tangible evidence led in the enquiry as well as before the learned Labour Court to establish the misconduct of the respondent. It is an admitted position that the management bad originally appointed one Mr. Ahmad as the enquiry officer; but on an objection being taken by the respondent against him, in his place Mr. Sirajuddin was appointed as the enquiry officer. No complaint or objection was made or raised by the respondent to the appointment of Mr. Sirajuddin as the enquiry officer. The respondent, however, objected to the enquiry proceedings being held on the ground that he was an illiterate person and did not know any other language except Pushto whereas the witnesses were Urdu speaking and the record was being maintained by the enquiry officer in Urdu. To meet the objection of the respondent, a Pushto speaking Chowkidar was called by the enquiry officer to translate the evidence for the benefits of the respondent but the respondent, as admitted by him, objected to the said person and hence another person from the department, by name Alamdar, was made to act as the translator. It appears that the respondent was satisfied with this translator. At any rate he raised no objection to his being made to act as the translator. The respondent then objected on the clerk who was called by the enquiry officer to record the enquiry proceedings. The enquiry officer attempted to meet with the objection of the respondent by calling different persons for the purpose of recording the evidence but as the respondent was not satisfied with any one of them, the enquiry officer finally decided himself to record the en--quiry proceedings. Thereafter the enquiry officer recorded the statement of the respondent after reading the charge to him. However, when a question was put to him by the enquiry officer, the respondent is said to have walked out from the enquiry proceedings and boycotted the same. From the above conduct of the respondent, it is clear that he was bent upon sabotaging the enquiry proceeding or at least not participating in the same. The enquiry officer seems to have made every effort to induce the respondent to participate in the enquiry proceedings but his efforts were not successful. No blame, therefore, can be attached either to the enquiry officer or the proceedings conducted by him.
5. Coming to the evidence led at the enquiry, it appears that Spin--ning Master Israr Ahmad stuck to the complaint made by him to the management. In that complaint he had alleged that because he had refused to discuss the matter of the charge-sheet against Peer Mohammad, Air- conditioning Operator the respondent and one Zar Wali assaulted him and beat him up. He has further stated in his complaint that he was rescued by workers including Aleemuddin, Shabbir, Farooq and Kamal. These 4 persons were examined by the enquiry officer and they supported the version of the complainant. No doubt there are minor variations in their statements but that is to be expected as the enquiry was held some 3 weeks after the incilent. None of these witnesses was cross examined as the respondent has walked out from the enquiry and it was held ex pate.
Spinning Master Israr Ahmad was examined before the learned Labour Court and he has fully supported the charge against the respondent. The mere fact that in his evidence before the learned Labour Court he gave greater prominence to the role of the respondent does not detract from the evidence, as this was expected since he was giving evidence against the respondent and was not against his companion Zar Wali. It appears separate proceedings were taken against Zar Wali.
For the reasons discussed by me above, I would allow the appeal of the appellant company and would set aside the impugned decision of the learned Labour Court . The amount of back benefits deposited by the appellant company at the time of the admission of this appeal is order--ed to be refunded.