This appeal is directed against the decision of the learned Vth Labour Court , given on 31st January, 1982, allowing the grievance petition of the respondent workman and directing the appellants herein to re-instate in service with back benefits.
2. The facts which form the background of this appeal shortly stated are, that the respondent was employed as an electric welder in the appellant company. On 26th August, 1980 a show-cause notice was sent to his residential address by registered post, AID, requiring him to explain (a) why he had unauthorizedly remained absent without permission from his duties for a period exceeding 10 days commencing from July, 1980, and (6) why he was in the habit of coming late and also irregular in attending to his duties as he posted to the management. It appears that an unsigned reply, dated 2nd September, 1980 was received by the company to the above show cause notice. In that reply, the allega--tions and charges stated in the show cause notice were denied as it was claimed that the respondent had been attending his duties uptil 26th August, 1980, whereafter he was not permitted to mark his attendance though lie had been performing his duties regularly. It was further asserted in the same unsigned reply that the respondent had been paid his overtime wages on 19th August, 1980. By letter, dated 3rd September, 1980, the company directed the respondent to resume his duties and also required him to appear before Mr. Haroon Vayani, who had been appoin--ted as an Enquiry Officer against him on 8th September, 1980 at 3-00 p.m., when the domestic enquiry against him would be held. In his reply, dated 10th September, 1980 the respondent regretted the error in failing to sign his letter of 2nd September, 1980, but once again refuted the allegations made in the show-cause notice, diced 26th August, 1980. Surprisingly enough, in this very letter, the respondent claimed that he had not been served with any charge sheet or show-cause notice which would attract the provisions of Standing Order 15 and claimed that in the absence of service of such charge-sheet or notice no enquiry against him could be held. The management by their letter, dated 4th September, 1980 denied the allegations contained in the respondent's letter of 10th September, 1980 and pointed out that he had already been informed by the management's letter, dated 3rd September, 1980 to report for duty and to participate in the enquiry and that the charge-sheet had been served on him vide the management s letter, dated 26th August, 1980. It was also stated in this letter that the respondent had failed to appear before the enquiry officer on 8th September, 1980 on which date the en--quiry was to be hold, but the management wanted to give him another opportunity for participating in the enquiry and hence he should appear before the enquiry officer on 20th September, 1980 alongwith his wit nesses. A warning was contained in the said letter that if he failed to appear before the enquiry officer on the appointed date, the enquiry would be held ex parte. In reply to this letter the respondent on 18th Sep--tember, 1980 wrote to the company that he was ready to appear before the enquiry officer on 20th September, 1980, but he should be furnished the points on which the enquiry was being held against him alongwith a copy of the charge-sheet. It appears that on 20th September, 1980 the res--pondent did not appear before the enquiry officer and hence on 21st September, 1980, the management wrote to the respondent that the enquiry had been postponed to 25th September, 1980 at 11-00 a. m. And that if the respondent failed to appear before the enquiry officer on the appointed date, the enquiry would be conducted ex parte. One copy of this letter was seat-.By-registered post to the admitted house address of the respondent, namely 26/14, Firdous Colony, Golimar, Karachi, and an--other copy of the letter was sent to him c/o 406, Qamar House, Karachi which address had been given by the respondent in his letters to the management after the issuance of the show-cause notice. The respondent by his letter, dated 23rd September, 1980, undertook to appear before the enquiry officer on 25th September, 1980. The management, by their letter dated 24th September, 1980, reminded the respondent that he was required to appear before the enquiry officer on 25th September, 1980 and again warned him that if he failed to appear before the enquiry officer on the said date, the enquiry proceedings would be held ex parte. He was informed by this letter that he had been continuing to remain absent from his duties in spite of repeated letters issued to him in this behalf.
3. 1t is the case of the management chat a domestic enquiry was held against the respondent on 25th September, 1980 in which the res--pondent participated and in which Mohammad Siddiq Moosa, Muhammad Ayub and Wali Muhammad were examined on behalf of the management while the respondent, Muhammad Khalid and Nazir Booria were examined on behalf of the respondent. On the same date, i.e. 25th September, 1980 the respondent wrote a letter to the company, complain--ing that he had requested the enquiry officer to summon Nasir Booria and Ali Muhammad as his witnesses but neither they had been summoned nor examined by the enquiry officer and further he had not been furnished copies of the enquiry proceedings and on the other hand, he had been compelled by the enquiry officer to sign the enquiry proceedings. In reply to this letter, the management by their letter, dated 28th September, 1980 asserted that the statement of the complainant, Muhammad Siddiq Moosa, had been recorded in his (respondent's) presence and that he had cross-examined him, whereafter the statements of the respondent's wit--nesses, Muhammad Ayub and Wali Muhammad were recorded in his presence and he was given an opportunity to cross-examined them but he had declined to do so. It was further pointed out in the said letter, that his statement also had been recorded on the same date and he was cross- examined by complainant Mohammad Siddiq and that the enquiry proceedings bear his signatures, 1t was also asserted in this letter that the statements of the respondent's witnesses, Nazir Booria and Muhammad Khalid, were recorded in his presence and that the said witnesses had duly signed their statements and no other witnesses were cited by the respondent.' On 30th September, 1980 the enquiry officer submitted his report holding that the charges against the respondent had been duly established. A second show-cause notice, dated 1st October, 1980 was thereupon issued to the respondent. It is stated in the said show--cause notice that a copy of the enquiry officer's report was being append--ed therewith. The issuance of the second show-cause notice gave rise to a fresh controversy between the parties. It was claimed by the respon--dent in his letter, dated 5th October, 1980 that though he had received the second show-cause notice, no copy of the report of the enquiry was en--closed therewith as asserted in the second show-cause notice- By earlier letter, dated 4th October, 1980 respondent had alleged that the statements of Muhammad Ayub and :Vali Muhammad had not been recorded in his presence, nor had he cited or called Ali Muhammad and Nazir Booria as his witnesses It may be pointed out that this later allegation is in direct conflict with the assertion made by the respondent in his letter dated 25th September, 1980 that his witnesses, Nazir Booria and Ali Muhammad had not been called by the enquiry officer. The management, vide their letter, dated 7th October, 1980 denied the allegations contained in the respondent's letter of 4th and 5th October, 1980 and while asserting that copy of the enquiry officer's report had already been furnished to him, stated that as a special case they were enclosing another copy of the enquiry officer's report with this letter. In reply the respondent, by his letter, dated 11th October, 1980 again reiterated his allegation that the statement of Muhammad Ayub, Wali Muhammad, Nazir Booria and Muhammad Khalid had not been recorded in his presence, and in support of his plea pointed out that if their statements had been recorded in his presence, his signatures would have appeared on those statements but admittedly their statements had not been signed by him. It was once again stated in this letter by the respondent that he had not received copy of the enquiry officer's report and requested that copy thereof be sent to him. The management by their letter, dated 13th October, 1980 while reiterating their stand that the statement of the above witnesses had been recorded in the presence of the respondent and that further copies of the report of the enquiry officer had been furnished to him asked the respondent to appear in the office of the appellant company to receive the copy of the enquiry officer's report. To this letter, the respondent replied by his letter, dated 18th October, 1980, claiming that be had personally gone to the premises of the appellant company on 18th October, 1980 to receive a copy of the enquiry officer's report but the same was not given to him. The manage-- ment by their letter, dated 25tb October, 1980 resorted to another, device to establish furnishing the copy of the enquiry officer's report to the respondent. The device was to send the copy of the report to the Joint Director, Labour Welfare, with a request to deliver the said copy to the respondent. At the same time, the respondent was written by the management to obtain the copy of the report through the Joint Director. However, this device failed to work as the Joint Director declined to work as delivery agent on behalf of the appellant company. The appellant company thereupon, on 6th November, 1980, issued orders of dismissal of the respondent. On 12th November, 1980, the respondent served a griev--ance notice upon the appellant company, wherein he alleged that neither copy of the enquiry officer's report nor a copy of the enquiry proceedings had been furnished to him. The management, by their letter, dated 17th November, 1980 made a reply denying the allegations contained in the grievance notice and asserted that the action against the respondent had been taken according to law. Dissatisfied with this reply, the respon--dent, on 8th January, 1981 preferred his grievance petition to the learned Labour Court which has passed the impugned order.
4. I have heard Mr. Mahmood Abdul Ghani, the learned counsel for the appellant company and the respondent, who appeared in person.
5. The view taken by the learned Labour Court is that admittedly the respondent was entitled to receive overtime wages for the overtime work performed by him during the month of July, 1980, and because the respondent, by his letter dated 15th August, 1980, had requested the management to give his dues, therefore, the management had taken umbrage and decided to teach the respondent a lesson. It has further boss b0d by the learned Labour Court that as the claim of the respondent was that he had been paid his overtime wages for July, 1980, on 19th August, 1980, therefore, he must have performed his duties on the said date and hence could not be considered to have been continuously absent from his duties with effect from 8th August, 1980.
6. There would appear to be no dispute as to the factum of payment of overtime to the respondent.
This position is admitted in the manage--ment's letter dated 3rd September, 1980, wherein it has been asserted that the respondent had not resumed his duties in spite of advice to him to do so when he came to receive the overtime. There is, however, no tangible evidence to indicate that there was any dispute in regard to the payment of overtime to the respondent for the month of July, that he wrote a letter dated 16th August, 1980, for the payment of his dues and that he actually received the said dues on 19th August, 1980. No doubt this is the case the respondent and he took this stand both before the enquiry officer and the learned Labour Court but beyond his bare word there is no evidence in support of this plea. The management has strongly denied that they received from the respondent the letter, dated 16th August, 1980, or that the overtime dues of the respondent were unnecessarily delayed. It may be pointed out that the enquiry officer, Mr. Viyani, whose rather un-clear evidence on this point has been adversely commented upon by the Labour Court, was not an officer of the appellant company but of a sister concern, and, therefore, was not expected to know details of the work in the appellant establishment. However, even if it be assumed for arguments sake that the respondent wrote the letter, dated 16th August, 1980, in regard to his dues for overtime for the month of July and that he was paid those dues on 19th August, 1980, as asserted by him, this neither establishes the fact that the appellant company were annoyed with the respondent for claiming those dues nor that the respondent performed his duties on the 18th August 1980. Even according to the respondent's case, the management paid the overtime dues to the respondent within 3 days of his letter of 16th August, 1980. Furthermore, the dues appear to have been paid to him without any objection or demur. It is not understood why the management should have been annoyed with the respondent for claiming his overtime dues which in fact were promptly paid to him. It has been explained by the management that the dues were not paid earlier to the respondent as he had been absent.
Even the mere fact that the respondent may have been paid the over time dues on 19th August, 1980 dues not mean that the respondent had in fact performed his duties for that day. It appears from the evidence of Mr. Haroon Viyani that the premises of the appellant are open and no Chowkidars are posted at the gate. The result is that apparently any person, particularly the persons working in the appellant establishment, could easily come to the office of the appellant to receive their overtime payment. It further appears from the evidence given by the management's witnesses in the domestic enquiry that the respondent despite the fact that he was not attending to his duties some times used to give rounds in the premises of the appellant company.
That brings me to a consideration of the enquiry proceedings. The issues involved in this behalf are, firstly, whether a fair and proper enquiry was held, whether the respondent participated in the said enquiry and whether the guilt of the respondent was established in the enquiry. It is an admitted position that the respondent had participated in the enquiry proceedings held on 25th September, 1980. The enquiry proceedings commenced and concluded on the same date. An examination of the enquiry proceedings shows that first the complainant, Muhammad Siddiq Moosa, was examined. He has teen cross-examined by the respondent and the signatures of the respondent appear on the 2 pages containing the examination-in-chief and the cross examination of the witness. On the same date, the statements of the management---s 2 witness, Muhammad Ayub and Wali Muhammad, were recorded. Their statements not only bear the signatures of the enquiry officer but also the signatures of the witnesses themselves. No doubt, the respondent's signatures do not appear on the statements of these witnesses but the enquiry officers note at the foot of these statement explains that the respondent had refused to sign these statements. This position has been reiterated by the enquiry officer in his evidence before the learned Labour Court . The recording of the evidence of the management was followed by the statement of the respon-- dent himself which bears his signature as well as the signature of the enquiry officer. Thereafter the statements of the respondent's 2 witnesses, Muhammad Khalid and Nazar Booria, was recorded but presumably because both these witnesses did not support the version of the respondent and on the contrary asserted that the respondent had been remaining absent, the respondent refused to apend his signatures on their statements, though the statements bear the signatures of the enquiry officer. The enquiry officer. Haroon Viyani, ,in his evidence before the learned Labour Court testified on oath that he had recorded the statements of these witnesses in the presence of the respondent. If their statements had not been recorded as asserted by the respondent or they had not supported the case of management, it was open to the respondent to have applied for the summoning of these witnesses by the learned Labour Court but no such action was taken by him. The manage--ment appears to have fulfilled their responsibilities by examining these witnesses in the; domestic enquiry and producing their statements before the learned Labour Court through the enquiry officer. It was for the respondent to rebut this evidence which he has failed to do.
8. In their evidence in the domestic enquiry, the complainant as well as the other 4 witnesses have testified about the respondent remaining continuously absent from his duties without permission with effect from 8th August, 1980 to the date of the holding of the enquiry, i.e. 25th September, 1980, and also in regard to his habitual late att9ndance an irregular attendance. This evidence which stands unrebutted fully establishes the misconduct on the part of the respondent with which he was charged.
9. There remains the issue whether the respondent was furnished with a copy of the enquiry officer's report, and if not, what is the legal consequence thereof. As appears from the narration of the facts of the case given in the opening paragraph of this judgment, it is the case of the appellant company that several copies of the enquiry officer's reports were sent to the respondent by registered post, but the plea of the respondent all along has been that though the letters were received the copies of the enquiry officer's report were not appended therewith. It appears that the appellant company went to the extent of sending a copy of the report to the Joint Director, Labour Welfare, for delivery to the respondent, but the Joint Director declined to act as delivery agent for the appellant company. It is difficult to conceive that the appellant company would have gone to all this trouble unless they were genuine in their desire to furnish a copy of the enquiry officer's report to the respondent. The denial of the respondent to have received a copy of the enquiry officer's report be taken seriously particularly in view of the contradictory and wrong assertions made by him in regard to the service of the charge-sheet and other matters. Further more, as the enquiry proceedings were held in' ' the presence of the respondent and there is no requirement of law that a copy of the enquiry officer's report be furnished to the workmen nor has it been shown that non-supply of the enquiry officer's report has caused any prejudice to the respondent or hindered him in his defence, I am inclined to the view that the requirements of natural justice have been fulfilled in the instant case.
10. For the reasons stated by me above, I would set aside the decision of the learned Labour Court and allow the appeal. The back benefits deposited by the appellant company are ordered to be refunded.