DECISION This appeal is directed against the decision of the learned Fourth Labour Court, given on 30th March, 19$2, allowing the grievance petition preferred by the respondent workman against the order, dated 9th May, 1981, dismissing him from service.
2. The respondent, who was employed as a Cooli in the appellant organization, was served with a show cause notice, dated 13th December, 1980, alleging that on 11th September, 1980, he stopped a van in which officers, including some ladies, employed in the appellant organization, were traveling and had abused them. 6s the reply of the respondent to the said show-cause notice was not found satisfactory, a domestic enquiry was held against him. The respondent boycotted the enquiry proceedings on the ground that he had not been allowed to be assisted by a co-worker of his choice. The domestic enquiry, thus, was held ex pane. In the domestic enquiry three witnesses were examined, namely (1) Shahnawaz Khan, Assistant Security Officer, (2) Shaikh Safdar Ahmed, A. S. I.
And (3) Tahir Saleem, Assistant Manager (Maintenance). All three of them are stated to have supported the case against the respon--dent and stated that he not only stopped the van in which officers, including ladies serving in the appellant organization, were travelling but also abused them. On the basis of the report of the Enquiry Officer, who found the charges against the respondent established, the latter was dismissed from service vide order, dated 9th May, 1981, after the respondent was served with a second show-cause notice, the reply whereto was found not satisfactory.
2. Aggrieved )y his dismissal from service the respondent workman preferred a grievance petition before the learned Labour Court . The learn--ed Labour Court allowed the grievance petition of the respondent and directed his re-instatement in service with full back benefits. The grounds which weighed with the learned Labour Court in arriving at such finding are-
(a) that the enquiry proceedings are vitiated by the reason of the fact that they were initiated by Mr. M. U. A. Baig, Manager, Personnel and Administration, who was not authorised or com--petent to do so ;
(b) that the enquiry proceedings are further vitiated by reason, of the fact that the respondent was not allowed to be assisted by a co-worker of his choice; and
(c) that even on merits, no act constituting misconduct was establish--ed against the respondent.
3. Mr. H. A. Jafri, the learned counsel for the appellant organiza--tion, sought to argue that Major (Rtd.) M. U. A. Baig had been autho--rised by the Managing Director to institute proceedings against the respondent. In the alternative he argued that Major (Rtd.) M. U. A. Baig, by reason of his being the Manager, Personnel and Administration, was authorised and competent to initiate domestic enquiry proceedings against the respondent and could appoint the Enquiry Officer.
Clause (4) of Standing Order 15 requires that if it is proposed to dismiss a workman the employer shall institute independent enquiries against him before dealing with the charges against the workman. It is, therefore, the function of the employer to institute the enquiry against a workman, against whom acts of misconduct are alleged and who is proposed to be dismissed on account of such acts. In the instant case, although the charge-sheet and the letter appointing the Enquiry .Officer are not on record it is an admitted position that these were issued by Major (Rtd.) M. U. A.
Baig. In support of his contention that Baig was authorised by the Managing Director to take such action against the respondent Mr. Jafri relied upon the evidence of Asghar Ali Shah, Assistant Manager (Personnel) Administration, who has stated that the dis--ciplinary action against the appellant was taken on the directives and with the approval of the Managing Director. He further admitted in cross-examination that there is nothing on record to indicate such approval or direction of the Managing Director. Furthermore, he admitted that he did not deal with the Managing Director personally in connection with the case of the respondent. As such, the assertion of the witnesses that disciplinary action against the respondent was taken on the directive and with approval of the Managing Director is without substance, I find equally no substance in the contention of Mr. Jafri that Major (Rtd.) M. U. A. Baig by reason of his being Manager, Administration, was authorised and competent to initiate disciplinary proceedings against the respondent. As already indicated, disciplinary proceedings under clause (4) of Standing Order 15 against a workman are to be instituted by the employer. Major (Rtd.) M. U. A. Baig does not fall within the definition of employer as given in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. At least there is no evidence on the basis of which such a conclusion can reasonably be drawn. It is an admitted position that ;he appellant organization is a Government- run and Government-- controlled establishment. In the case of such establishments, the employer is the person or authority appointed by the Government and where no such authority is appointed the Head of the Department, as provided in sub-clause (ii) of clause (c) of section 2 of the Ordinance. It was held in the case of Gul Ahmed Textile Mills Ltd. v.
Presiding Officer Sind Labour Court (PLD 1978 Kar. 35), that paragraphs (i) to (i.e) of section 2(c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1963, are self-contained and on-. Excludes clauses of establishments mentioned in the other. The residuary clause namely clause (3), will therefore, not apply in the case of establishments con--trolled or run by the Government.
4. It was next submitted by Mr. Jafri that the respondent was per--mitted by the Enquiry Officer, M. 1.
Khan, to bring his co-worker, Peter Paul, but the respondent failed to do so and boycotted the enquiry proceedings with the result that the domestic enquiry had to be held ex parte. It is an admitted position that the domestic enquiry was being held in the premises of the factory of the appellants. Admission to the factory premises could be gained only on an admission pass but no such pass was issued to Mr. Pater Paul. It may further be pointed out that this Peter Paul was an employee of the appellant organization and, there--fore, it was the responsibility of the appellant organization to procure his attendance, of course, leaving it to his choice to decide whether he wanted or did not want to assist the respondent in the domestic enquiry proceedings. It further appears from the evidence on record that this Peter Paul was at that time under orders of transfer and was admittedly not in the factory premises when the enquiry proceedings against the respondent were-started. The Enquiry Officer stated that he gave fifteen minutes to the respondent to produce his co-worker. Now apart from the fact that the respondent could not secure the admittance of Peter Paul into the factory premises unless the Management issued an admis--sion card to him, it would not have been possible for the respondent to secure the attendance of Peter Paul, who was not within the factory premises, within fifteen minutes. The action of the Enquiry Officer was, thus, tantamount to refusing to allow the respondent to be assisted by a co-worker of his choice in violation of the proviso, to clause (4) of Standing Order 15.
5. In regard to his last contention, Mr. Jafri relied upon the evidence of the three witnesses who were examined in the domestic enquiry, namely complainant Shahnawaz Khan, Shaikh Safdar and Tahir, Mr. Ali Amjad, the learned counsel for the respondent workman, sub--mitted that not much weight could be given to these three witnesses as firstly, the domestic enquiry was held ex parte and their evidence was no subjected to cross-examination, and secondly, none of these witnesses were examined by the appellant organization before the learned Labour Court, though Ishrat Ali, contractor /driver of the van, which was allegedly stopped by the respondent, was examined before the learned Labour Court. I do not wish to embark upon an examination of the evidence of these witnesses in view of the order which I propose to pass. I would, however only point out that the three witnesses examined in the domestic enquiry have stated that the respondent had not only stopped the van in which they and other officers, including ladies, were travelling but also abused them.
6. Since the domestic enquiry against the respondent was initiated by Major (Rid.) M. U. A., Baig, who was not employer and, thus, was not competent to do so and further as the respondent was not afforded al reasonable opportunity of being assisted by a co-worker of his choice, the` enquiry proceedings against the respondent stand vitiated and the dismissal order based thereon would also be deemed to be invalid. I would, accordingly, take the view that the direction given by the learned Labour Court for the reinstatement of the respondent is appropriate and justified in the circumstances of the case. Since there would appear to be some evidence suggesting that the respondent had possibly committed an act of misconduct, I would give an option to the appellant company to hold a fresh domestic enquiry against the respondent, relying upon the principle enunciated by their Lordships of the Supreme Court in the case of Islamabad .Club v. Punjab Labour Court (1980 PLC 307). The award of back benefits to the respondent would depend upon the result of that enquiry. I would further direct that if no enquiry is initiated against the respon--dent within two months from the date of this order it is to be assumed that the appellant corporation has waived its option of holding a fresh enquiry. In that case the respondent would be entitled to full back bene--fits as awarded by the learned Labour Court