These are 2 appeals by the management calling in question the com--mon decision given by the learned IIIrd Labour Court on 28th January, 1982, by which it has accepted the grievance petitions of the 2 respondents workmen challenging their dismissal from service, and has directed the management to re-instate the 2 respondents in service with full back benefits. It appears that due to short supply of electricity, a scheme had been developed by the Government in consultation with the Electric Supply Corporation, by which the industrial areas in Karachi had been divided into several zones. The industrial units in each of these several zones were to remain closed on a different day of the week, in order to have electricity. As according to that scheme the Mercantile Industries Ltd.. The appellants herein were to remain closed on Saturday, the management, on 7th May, 1981, issued a notice that in view of that scheme, the factory would remain open on every Friday, including the Friday falling on ,; ;,--- 8th May, 1981, and instead holiday would be observed on each Saturday. ' The workers of the appellant-Company appeared to have taken excep--tion to this notice and it is claimed by the management that on the same day, there was a total strike in the factory, which strike is said to have been engineered or at least was - led, along with ethers, by the 2 respondents herein. The strike is said to have commenced at about 12.30 p.m. In the Packing Section and thereafter it spread to the White Section and other sections of the factory and the strike thus continued in the whole factory till 3.00 p.m. Report of the strike is said to have been submitted to the Directorate of Labour Welfare. On the orders of the Joint Director, Labour Welfare, Labour Officer, Nasrullah Unar, visited the factory of the appellants on the very day at about 2.15 p.m. According to the report submitted by him to the Joint Director, he found that there was a total strike in the appellant factory and the working of the factory had come to an end. He advised the workmen, particularly the President of the workers' union Mohammad Ali and Treasurer of the Union, Mohammad 1zhar, to call of the strike and resume production, but they declined to act on the advice of the Labour officer until and unless their demand that Friday be declared half holiday was accepted. Because of the said strike, disciplinary proceed--ings are said to have been initiated against a total number of 13 workmen including the 2 respondents herein. They were issued with separate but similar show-cause notices on or about 10th May, 1981, alleging, firstly, that they had taken part in an illegal strike and had incited workers to strike on 7th May, 1981, from about 12.30/40 to 3.00 p.m. And secondly, that they had used insulting language towards their supervisor and shift engineer and misbehaved with them. The-respondents submitted their written explanations to the show-cause notices served upon them but as the same were not found satisfactory, it was decided by the manage--ment, vide their letter, dated 12th May, 1981, to hold a domestic enquiry against them and some of the other workers who had been charge--sheeted.
Originally Mr. Mohammad Farooq Khan, Administration/ Personnel Officer was appointed as the enquiry officer and the date for the holding of the enquiry was fixed as Thursday, the 14th May, 1981.
As the respondents objected to the appointment, of Mr. Farooq Khan as enquiry officer, the management, by their letter dated 16th May, 1981, appointed Mr. Abdul Samad Khan, Personnel Executive employed in a sister concern (Kahinoor Soap and Detergents Ltd.) as the enquiry 'officer and fixed 17th May, 1981, for the holding of the enquiry. On the said date, the respondents appeared before the enquiry officer and demanded copy of the complaint on the basis of which proceedings against them had been initiated. They also requested for a list of the witnesses who were to be examined against them. They were supplied with copies of the complaint but as regards the names of the witnesses, they were informed that this information was to be given to them during the enquiry which was to be held on 21st May, 1981, at 10.00 a.m. It is the case of the management that on 21st May, 1981, the respondents appeared before the enquiry officer along with another worker, Mohammad Shaukat, who was also proceeded against on a similar charge, but left the place of enquiry and boycotted the same on the ground that they do not recognize the enquiry proceedings. The enquiry officer tried to persuade them to participate in the enquiry and postponed it in order that they' might participate in the same but as they did not turn up in the enquiry proceedings, the same is said to have been held ex parte against the respondents. In the enquiry, witnes--ses Sharafuddin (Time-keeper), Kamran Azhar (Departmental Super--visor), Hussain Taqi (Shift Incharge), Anwar Sbamim (PCOdAtlon Officer) and Mohammad Nisar (Production Supervisor) were examined. The evidence of time-keeper, Sharafuddin was merely on the point that the 2 respondents had come to the factory on 21st May, 1981, at about 10-00 a.m. But they left soon after, on his enquiries whether the proceed--ings were over, they informed him that they had decided not to parti--cipate in the enquiry as they did not recognize the same. The main evidence before the enquiry officer was of the complainant, Kamran Azhar who had made a report to the management about the strike. He deposed that there was a strike by all workmen in the White Section of which he was the supervisor from about 12.40 till 3-00 p.m. That the 2 respondents herein had taken part in the strike and the respondents and other work--men had abused and used insulating language against the management and had misbehaved with him. According to him, on account of the strike there was loss of production to the extent of 120 trays. The witness produced in the enquiry proceedings the report which he had made to the management about the incident. The report contains the same averments as made by him before the enquiry officer including the allegations that the workers during the strike had abused him and the shift incharge and misbehaved with them. The other 3 witnesses exa--mined during the enquiry, namely Hussain Taqi, Anwar Shamim and Mohammad Nisar supported the statement given by Kamran Azhar. On the basis of the report of the enquiry officer, who found the charges against the respondents established, both the respondents were dismissed from service vide separate but identical orders, dated 29th July, 1981, Before the orders of dismissal were issued, second show cause notices were- issued to the respondents and their replies to the same were duly considered.
3. It might be stated at this stage that out of the 13 workmen, who were originally proceeded against by the management for taking part in the illegal strike, 4 tendered their resignations and collected their dues and hence further proceedings against them were dropped. Two more out of these 13 workmen tendered apology which was accepted by the management and they were re- instated in service. The remaining 7 workmen were dismissed from service for taking part in the illegal strike: Out of these 7 persons who were dismissed, 5 including the President of the workers' union, Mohammad Ali appeared to have acquiesced in the orders of their dismissal. At any rate, they did not challenge the same before the Labour Court . Only the present 2 res--pondents filed grievance petitions challenging the orders of their dis-- missal.
4. The learned Labour ' Court has based his impugned decision, directing the re-instatement in service of the 2 respondents with full back benefits on the grounds, firstly, that it has not been established that the respondents were either responsible for the strike or that they were guilty of wilful insubordination or disorderly behaviour, secondly that although the full strength of 200 workmen in the appellant factory is said to- have gone on strike, only 13 workmen were selected for taking disciplinary action against them suggesting thereby discrimination on the part of the management, thirdly, that there was further discrimina--tion on the part of the management in that even out of 13 persons against whom proceedings were initiated, 2 were taken back in service and 4 were allowed to resign and collect their dues, and fourthly, that none of the witnesses examined before the enquiry officer was examined before the Labour Court.
5. I have heard Mr. Abdul Hafeez, the learned counsel for the appellant and Mr. Saleem Raza, the learned representative of the 2 respondents. They have taken me through the record of the case including the record of the enquiry proceedings. I will now proceed to deal with each of the grounds on which the learned Labour Court has based its decision.
6. I have already pointed out that in the domestic enquiry proceed--ings as many as 4 witnesses had testified to the role played by the 2 respondents in not only participating in an illegal strike but taking leading part therein by inciting other workers to strike and also using abusive language towards the Production Supervisor, Kamran Azhar, and the Shift Incharge Hussain Taqi, who advised them to call of the strike and resume work. As the respondents had boycotted the enquiry, the evidence of these witnesses has gone unchallenged. In addition to this strong evidence implicating the 2 respondents, there is the evidence of an independent witness, namely; Labour Officer Nasrullah Unar. He had gone to the factory of the appellants on the instructions of the Joint Director, Labour Welfare, and found that there was a total strike in the mills of the appellants. He has further testified that he had tried to persuade respondent Mohammad Izhar, the Treasurer of the Workers' Union and Mohammad Ali, the President of the Union to call of: the strike but they refused to do so unless the demand that Friday be declared as half holiday was agreed to by the management. Labour Officer Nasrullah has no reason to depose falsely against the respondents.
Further more, he is supported by the report which he had immediately sent to the Joint Director and which report was produced in original before the learned Labour Court . Mr. Saleem Raza sought to argue that the allegations against the respondents were baseless and were connected and designed for the purpose of victimizing the respondents and other officer of toe collective bargaining agent. It is not disputed that the respondent- Mohammad Izhar was an office-bearer of the workers' union in the. Appellant establishment. The fact of his being the treasurer of the workers' union in the fact highlighted in the report of Labour Officer Nasrullah. The action against the respondent, however, was not connected with their trade union activities but was in consequence of the strike which took place in the mills of the appellants on 7th May, 1981, and in respect of the strike there was overwhelming evidence on record. No doubt, the enquiry was held ex parte but the respondents are to blame themselves for boycotting the same. As already stated another enquiry officer had first been appointed by the management but on an objection being taken against him he was changed and one Mr. Abdul Samad, an officer of a sister organization was appointed as the enquiry officer. Not only did the respondents no objection to the appointment of Mr. Abdul Samad as the enquiry officer, but they have been unable to point out any circumstances suggesting that he was either prejudicial. Towards them or partical to the management. The enquiry officer furnished to the respondents a copy of the report made against them by the Departmental Supervisor Kamran Azhar. He also promised to give them the names of witnesses during the enquiry proceedings. The mere fact that the respondents were not furnished a list of witnesses who were to testify in the enquiry proceedings does not invalidate the enquiry proceedings. It may be mentioned that the furnishing of such a list in neither the requirement of law nor even of natural justice. Perhaps the intention of the management in with--holding the names of the witnesses before the enquiry was due to commence, was to prevent the possibility of any undue pressure being exerted on the witnesses through the workers or their union.
7. Also no adverse inference can be drawn against the management by reason of its initiating proceedings against 13 workmen only and ultimately passing dismissal orders in respect of seven workmen not from these facts can it be presumed that the management have acted in malice or were guilty of discrimination. Since the whole work force in the factory had gone on strike obviously the management could not take action against all the workmen. It had to select the ring leaders and those who had taken a more active part in the strike. It appears from the evidence on record that both the respondents did take an active part in the strike, and, therefore, the management was fully justified in taking action against them. Moreover, it appears that the respondents did not tender an apology for the misconduct as was done by 2 of the workmen who were taken back on duty. It has been 1pointed out by this Tribunal in the case of Asghar Ali and another v. Pakistan Fisheries Ltd. (1982 PLC 184) that it is the right of the management to accept an apology and the mere fact that some of the persons who were jointly charged with misconduct were let of on account of their., tendering an apology, while others were dismissed from service o 'n the same charge, is not sufficient to establish an allegation of mala fides/ against the management or even discriminatory treatment.
8. The view taken by the learned Labour Court that no tangible material or evidence was produced before it for establishing the mis--conduct of the 2 respondents and that the enquiry proceedings in the case including the enquiry report are of no use for determining the guilt of the respondents, is clearly erroneous. The enquiry officer, Mr. Abdul, Samad Khan was examined before the learned Labour Court and he testi--fied that he had examined the witnesses in the enquiry, that the statements produced before the Labour Court were made before him by the witnesses, that each page of the enquiry proceedings bears his signature that he identifies the signatures of the witnesses on the enquiry proceed--ings and that the documents included in the enquiry proceedings were produced before him. He has further testified that he had submitted the enquiry report. There was thus substantial evidence before the learned Labour Court not only in respect to the authenticity of the enquiry proceedings and the report of the enquiry ' officer but also in regard to the facts establishing misconduct on the, part of the 2 respondents.
Apart from the enquiry proceedings, as already pointed out, Labour Officer Nasrullah who is an independent witness, was examined before the learned Labour Court and he supported the case of the appellants that there was a total strike in the mills of the appellants on the date in question. He has further specifically .Mentioned one of the respondents Mohammad Izhar, as being a person who was not only striking but who had refused to call of the strike and resume work. I, therefore, hold that there was overwhelming evidence before the learned Labour Court to establish the misconduct of the respondents. No doubt, subsection (5) of section 25-A, I. R. O., requires a Labour Court, while dealing with a grievance petition, to go in all the facts of the case, but there is no requirement of law that all the witnesses who were examined in the domestic enquiry for the pur--poses of establishing the misconduct of a workman should be again exa-- mined before the Labour Court. The Labour Court of course is entitled to examine the enquiry proceedings and determine whether the evidence led before the enquiry officer established the misconduct of the work--man. The Labour Court may even sup mote summon any witness if his evidence before the enquiry officer is not clear or there are any points which need clarification. The learned Labour Court has sought to rely on the decision of their Lordships of the Supreme Court in the case of Crescent Jute Mills Ltd. v.
Mohammad Yaqoob (1978 PLC 207) but there is nothing in the said judgment to suggest or indicate that the management is required to lead afresh the entire evidence available with it for establishing the misconduct of the workman before the Labour Court. The words "the Labour Court shall go into all the facts of the case", as I construe them, mean that the Labour Court should examine all the material placed before it including the enquiry proceed--ings and the report 'of the enquiry officer if they have been properly proved and brought on record. In the reported case the employer led no. Evidence to prove justification of its order dismissing the emp--loyee. It was in those circumstances that the Supreme Court held that in the absence of any relevant evidence the appellate Court was justified in accepting the appeal of the employee by holding that his dismissal had not been shown to be warranted on the factual plane. In the instant case, as already pointed out, there was overwhelming evidence to establish misconduct on the part of the 2 respondents, not only in the shape of the evidence led in the domestic enquiry, which evidence was properly brought on record is of the learned Labour Court, but further, the evidence of the Labour Officer was led before the- learned Labour, Court in support of the ca a of the management against the 2 respon--dents. It may be pointed ca that striking or inciting others to strike in contravention of the provisions of law is expressly made a misconduct under Item (k) of clause (3) of Standing Order 15 and is made punish--able with dismissal or other prescribed penalty. The appellants, there--fore, were justified to impose the penalty of dismissal upon the respondents.
9. Mr. Saleem Raza also sought to argue that the management had not produced the figures for its production on 7th May, 1981, and the non-production of these figures on the one hand rebut the contention of the appellants that there was loss of production on account of the strike and on the other hand even cast a doubt on the factum of strike itself. I have already dealt, at considerable length with the evidence regarding the staging of the strike and have held that there is over-- whelming evidence to establish that there was a total strike in the factory of the appellants on 7th May, 1931. I have also referred to the fact that according to the evidence given by Kamran Azhar before the enquiry officer, on account of the strike, there was a loss of production of 120 trays. As this evidence was not challenged, it was not necessary on the part of the management to produce the production figures. If the respondents had disputed this assertion and wanted to rely on the production figures they could have summoned the same, but this was not done by them.
10. For the reasons discussed by me above, I find myself unable to concur in the view taken by the learned Labour Court . I would accordingly set aside the impugned decision and allow both the appeals.