The appellant, who was employed as an Operator in the respondent establishment and is said to have been the Cashier in the C. B, A. In. The said establishment, was charge-sheeted on 27th August, 1979, for absenting himself from duty from 16th August, 1979 onwards without any intimation or permission ; collecting workers from the factory near the gate on 16th August, 1979, at about 5.00 p.m., and asking them to adopt organized absentee tactics and also instigated them not to do overtime in the factory ; with having collected the workers again on 18th August, 1979 and openly instigated them. Against the management ; and with having misused the company's bus between the 16th and 23rd August, 1979. A domestic enquiry on - the above charges was held by the company's officer Abdul Majeed, who found all the charges established against the appellant.
The appellant was accordingly, dismissed from service by the company by its letter, dated 11th November, 1979 after he was served with a second show-cause notice, the reply whereto was not found satisfactory by the company.
2. The appellant challenged his dismissal before the IIIrd Labour Court which has dismissed his petition on the ground that first, second and third charges had been established against the appellant, but not the charge of misusing the company's bus since it had been admitted by witness Usman Baloch that the union could use the company's bus for the purposes of attending the Labour Court or the Labour Directorate. The appellant has come up to this Tribunal in appeal against the decision of the learned Labour Court
3. I have heard Mr. Malik Muhammad Saeed, the learned counsel for the appellant and Mr. Mahmood Ghani, who appeared for the respondent --Company. Since according to the learned Labour Court one of the charges, upon which the dismissal orders of the appellant are based, namely, misuse of . The company's bus is not established, inasmuch as, even the company's Labour Officer Muhammad Usman Baloch, had admitted that the union was entitled to use the company's bus for the purpose of attending the Labour Court or the Labour Directorate and no cross-appeal or cross- objection against the said decision has been filed by the respondent establishment, the question arises whether the appellant's dismissal orders can be upheld in the circumstances of the case. It has been held by the Lahore High Court in the case of Chan Pir Shah v. Congothene Chemical Industries Ltd. (1981 PLC 984), that since 2 of the 3 charges, on the basis of which action has been taken against the workman did not amount to "misconduct", the action of dismissal on the assumption that all the 3 charges stood proved, vitiates the entire order. The above decision is based on the earlier decision of the Lahore High Court in the case of Sher Muhammad v. Bashir Ali Khan (PLD 1962 Lah.172) wherein it has been held that if extraneous considerations have been taken into account while passing an order, the entire order is liable to be quashed. Although the Labour Appellate Tribunal Punjab in the case of Builders Associates Ltd. v. Talib Hussain Chohan (1980 PLC 828) purported to expressly dissent from the view taken by the High Court in the case of Chan Pir Shah, nevertheless it had held that where the Labour Court found only one of the 3 charges on the basis of which dismissal orders were issued in respect of the workman,- amounted to `misconduct', the order of the Labour Court setting aside the dismissal orders of the workman was proper but the employer was given the option to proceed against the workman according to Law. I would also refer on this issue to the latest riling of their Lordships of the Supreme Court in the case of Islamabad Club v. Puniab Labour Court No. 11(PLD 1980 SC 307). In that case, the Supreme court, while upholding the decision of the High Court in setting aside the order of dismissal passed against the workman, observed as follows: "The High Court seems to us to be right in observing that the employee was given notice of only one misconduct, namely, that of holding meetings during working hours in the Club premises without obtain--ing previous permission, yet the findings of the Inquiry Officer covered other matters also which disclosed far more serious acts of misconduct on the part of the respondent, which could not be said to be included in the original charge framed against him. We think that it is clear that the findings recorded by Inquiry Officer on matters, which were not included to the original charge, must have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent. In the circumstances, it could not be said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no cop), of the inquiry report was furnished to him and he was, therefore not in a position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held, as the High Court has done, that the requirements of reasonable opportunity` as embodied in clause (4) of Standing Order No. 15, were not fulfilled in this case.".
4. The Supreme Court, however, left it open to the Islamabad Club to resume the proceedings against the workman and observed as follows :- "If the authorities of the Islamabad Club are still anxious to pursue the matter, it would clearly be open to them to resume the proceed--ings by furnishing a copy of the inquiry report to the respondent and giving him reasonable opportunity to show cause against the proposed order of dismissal on the grounds found against the respondent by the Inquiry Officer."
5. Mr. Mahmood Ghani, while conceding that the - order of dismissal c passed in respect of the appellant was liable to be set aside on the ground that one of the charges upon which the dismissal was based had been held by the learned Labour Court not to be established against him, relied upon the decision of their Lordships of the Supreme Court in the case of Islamabad Club and contended that the respondent establishment could be permitted to proceed against the appellant on the basis of the remaining charges against the appellant, which even the learned Labour Court has found to have been established against him and to decide what penalty it would like to impose upon the appellant. In principle, the contention of Mr. Mahmood Ghani appears to be sound, but before permitting the respondent establishment to take action in accordance with law against the appellant on the charges found established against him, it would appear necessary to examine these charges, as according to Mr. Malik Muhammad Saeed, the learned counsel for the appellant; even the other charges against the appellant were neither established in the domestic enquiry nor before the learned Labour Court.
6. The main charge against the appellant relates to the incident of 16th August, 1979. According to the charge-sheet, on the said date at 5-00 p.m., the appellant collected some workers near the gate of the factory and asked them to adopt organized absentee tactics and instigated the workers riot to do overtime if needed by the factory management with a mala fide motive to hamper and dislodge the production, and further the appellant was also seen instigating the workers against the management and in some cases had threatened the workers who were willing to work. There is; however, not an iota of evidence in support of the allegation that the appellant had collected the workers on the said date. Even, according to the evidence given in the domestic enquiry: by Muhammad Usman Baloch, the Labour Officer of the respondent establishment, the appellant came to the gate of the factory at about 5-00 p. m., and the workers thinking that the appellant had brought some message or instructions from Pervaiz Ali Khan and Yaqoob (office- bearers of the union) gathered in order to hear the message or instructions, whereupon the appellant addressed to them. It is thus clear that the appellant had not collected the workers but they themselves had gathered of their own accord. There is also no evidence in support of the allegation that the appellant instigated the workers against the management and in some cases threatened workers who were willing to work.
7. Apart from Muhammad Usman Baloch, the management had examined witnesses Sain Bux, Muhammad Saleem and Ghulam Muhammad in the domestic enquiry against the appellant.
Witness Sain Bux has frankly admitted in his evidence in the domestic enquiry that he was not present in the meeting or gathering on 16th August, 1979. As such, he has no personal knowledge of what transpired at that gathering or how or under what circumstances the workers gathered there.
Furthermore, whereas according to this witness the meeting took place in front of Weighing Scale.
According to the charge-sheet and the evidence of Muhammad Usman Baloch it took place near the factory's gate.
8. The next witness examined on the above point in the domestic enquiry is Ghulam Muhammad who has testified that on the - date that Pervaiz was arrested, the same evening, at 3.00 p.m., the appellant, Niaz Ahmad had collected all workers and had brought this message from Pervaiz that they should work with honesty but not to do overtime. The evidence of this witness clearly does not relate to the incident on 16th August, 1979, as firstly, Pervaiz was not arrested oil that date, and secondly, whereas according to this witness, the .Gathering was addressed by the appellant at 3.00 p.m. But according to Muhammad Usman Baloch, the gathering was addressed by the appellant at 5.00 p.m. The last witness, Muhammad Saleem, is only in respect of the charge of unauthorized use of the bus. It may be mentioned that according to the Enquiry Officer's report, one Ghulam Rasool had also been examined as a witness in the domestic enquiry against the appellant but his evidence does not form part of the enquiry proceedings produced before the learned Labour Court . It appears that the Enquiry Officer, wrongly recorded in his report about the examination of witness Ghulam Rasool and this mistake was possibly induced by the fact that the father`s name of Ghulam Muhammad is Ghulam Rasool. This fact, by itself, indicates want of care on the part of the Enquiry Officer.
9. The third charge against the appellant relates to the incident on 18th August, 1979, on which date, the appellant is said to have openly instigated the workers against the management and assisted the mischief --mongers in their mala fide activities. Although, according to the Enquiry Officer's report this charge, as also the other charges, were established against the appellant, the only evidence in support of this charge is that of witness, Muhammad Usman Baloch, the Labour Officer, who has testified that on 18th August, 1979, the appellant had gathered some workers near the gate and openly told them not to do overtime or to do officiating work. There is no allegation that the appellant instigated the workers against the management or assisted the mischief-mongers in their mala fide activities. As such, this charge against the appellant also cannot be said to have been established and the report of .The Enquiry Officer in this behalf cannot be accepted.
10. Mr. Mahmood Ghani, in the circumstances, relied upon the first charge against the appellant,' namely, the charge of absenting from his duties with effect from 16th August, 1979. It may be pointed out that the appellant, in his reply to the charge-sheet, has not even referred to this charge, and consequently, there is some substance in the contention of Mr. Mahmood Ghani that he did not dispute this charge. There is, how--ever, positive evidence of witness Muhammad Usman Baloch that from 16th August, 1979 onwards, the appellant merely punched his card but did not perform his duties in the factory. The appellant, although he denied this charge in his evidence before the learned Labour Court failed to rebut the charge- or lead any evidence to show that in fact he had attended to his duties during this period. I am, therefore, inclined to agree with the view of the Enquiry Officer as well as of the learned Labour Court that at least this charge had been established against the appellant. However, since the appellant was dismissed by the employer on the assumption that all the charges had been established against him and the finding of the Enquiry Officer on the remaining charges must have influenced the mind of the employer in passing orders of dismissal. I would accept the appeal, set aside the orders of .Dismissal of the appellant and order his re-instatement in service. However, since the appellant had absented from his duties without permission with effect from 16th August, 1979, I consider that he is not entitled to an back benefits. Furthermore, in view of the decision of their Lordships o A the Supreme Court in the case of Islamabad Club, it will be open to the respondent establishment to proceed against the appellant in accordance! With the law on the charge of absence from duty.