' The appeal captioned above arises from the decision, dated 29th April, 1982 recorded by the learned Presiding Officer, Punjab Labour Court No, 3, Lahore at Ferozewala, directing the re- instatement of the respondent in service with full back benefits.
2. The allegation against the respondent for which he was, after being charge-sheeted and holding an enquiry, dismissed, was that he had on 1lth November, 1978 at 10-30 p. In. Entered the Bagging and Shipping office alongwith other office-bearers of the union and abused the Engineers, threatened them to leave the office, that at 10.45 he alongwith other office-holders of the union gharaoed the Senior Engineer and other Engineers in the Plant Control Room and forced them to leave the office, that at 11-05 a. m. He abused and attempted to manhandle Mr. Ahad Farooqui when the latter was going towards the administration building and that on the said date at 11.15 a. m. He rushed towards Mr. Saif-ud-Din, Production Manager and tried to hit him. During enquiry the prosecution witnesses supported the case of the management and the defence witnesses namely Muhammad Masood, Muhammad Rafiq and Hameed-ud-Din gave evidence of alibi. The learned lower Court did not rely upon the evidence given in support of the allegations made against the respondent. The grounds given by the learned lower Court for not relying upon the evidence produced in the enquiry are not cogent. No enmity of the witnesses with the respondent was established in the enquiry or before the learned lower Court. Learned counsel has not been able to point out any material that may show that there was any such enmity that could have actuated the witnesses to falsely implicate the respondent. The witnesses, who were abused, threatened and shown criminal force, are men of some status. They would not have lowered their prestige by falsely saying that they were disgraced by their subordinates. Even if there had been cause for the witnesses to get the respondent dismissed, they could have laid some other kind of allegations instead of lowering their grace and prestige in the eyes of other subordinates. Hyperbolic statement may be made. This is not believable that no incident took place and white lies were adhered to. Learned lower Court says that there was no evidence that after going out of the factory the respondent had come back. No doubt, the duty hours of the respondent had ended but it cannot be presumed that he had left the factory. If his quitting the factory had been admitted, of course, presence of evidence that he had come back would have been necessary. Since this is not known to anybody if any incident is going to take place, so no one bothers to note if any one after performing ones duties is going out of the factory or is present. Since the prosecution witnesses witnessed the incident, so they deposed that the respondent committed acts subversive of discipline. The other reason for disbelieving the prosecution witnesses given by the learned lower Court is that since many persons were present, anyone of them could have snatched the chair from the respondent. Such an evidence is present. Noor Elahi said that the two companions of the respondent had taken the chair from the respondent. The other reason given by the learned lower Court is that the witnesses were not administered oath by the enquiry officer. There are no hard and fast rules on the point. If otherwise the evidence believable, it cannot be brushed aside merely on the ground that oath was not administered. Enquiry Officers are not judicial officers and thus that kind of enquiry may not be expected from them which is matte by the judicial officers. The other reason given for not relying upon the evidence is that there was no motive for the respondent to attack. Evidence of motive is not necessary if otherwise the incident is established by evidence.
3. It has been argued by the learned counsel for the respondent that industrial dispute was pending since 1977, so taking of permission was necessary. Firstly, it was not proved that such a dispute was pending. The evidence is that in 1978 dispute was pending and then it went to the Tribunal. Nothing has been said as to what happened to the dispute in this Court and when was it decided. The date of dismissal is 4th December, 1977. If the dispute was pending in 1978, so unless it had been proved that it was in existence on 4th December, 1977, taking of permission was not necessary. Demand Notice is dated 4th May, 1977. No industrial dispute comes into existence by merely giving a demand notice. However, if conciliation proceedings have started, dispute conies into being but there is no evidence if and when any conciliation proceedings were started.
Moreover, the respondent was not an office-bearer. He is said to be a shop steward. A shop steward is not an office-bearer. Apart from it taking of permission is necessary if the punishment awarded has any connection with the dispute. In the present case it was not shown that the dispute, if any, had any connection with the dismissal of the respondent. So taking of permission under section 47 of the Industrial Relations Ordinance, 1969 was not necessary.
4. However, there are two such defects, in the presence of which the' dismissal order was not sustainable. After the close of the defence evidence, one more prosecution witnesses evidence namely Muhammad Sadiq was recorded and thereafter, no opportunity was afforded to the respondent to produce further defence to meet the evidence of the said witness. It has been argued by the learned counsel for the appellant that Muhammad Sadiq was examined as a Court witness. Since the said witness was examined on the request of the prosecution and the said witness deposed against the respondent, it was necessary to allow opportunity to the respondent to rebut it. The other defect is that Mr. Mujtaba, Enquiry Officer, who gave verdict against the respondent, did not hold the enquiry de novo. Since the previous enquiry officers were changed on the allegations levelled against them by the respondent, it was necessary to record the evidence recorded by the previous enquiry officers. P. W. 1 proceeded from the stage the previous enquiry officer had left the enquiry. It has been argued that the respondent should have made such a request. If it had been enquired from the respondent, he would have come to know that he had a right of de novo trial. So he was prejudiced.
5. So far as the point of workman is concerned, it has been argued by the learned counsel for the appellant that the respondent is not a workman. The evidence led by the respondent on the point was not rebutted by the appellant, so the learned lower Court rightly held the respondent as a workman.
6. A legal point has been raised by the learned counsel for the respondent that the written statement is not signed by the appellant but by the lawyer. He has argued that C.P.C. Not being applicable, the written statement cannot be got signed from the appellant. The appellant has made application along-with the appeal for permission to sign the written statement. Even if for the sake of argument, it be said that signatures of the party were necessary on the written statement, the absence of signatures would mean that there is no written statement. Since defence was not struck off by the learned lower Court, the evidence produced by the respondent before the learned lower Court can be considered. If memo. Of appeal is unsigned and it is held that signatures of the appellant are necessary, it can be said that no proper appeal being before the Court, the appellant cannot challenge the learned lower Court's decision. C. P. C. Is not applicable and there is no provision in the Jndustrial Relations Ordinance, 1969 that the written statement is to be filed and that on the written statement the respondent should himself put signatures. Section 25-A does not say that the written statement shall be filed. A petition under section 25-A is to be decided as an industrial dispute as provided in subsection (4i. Section 32 too does not say that the written statement should be given and that it should bear the signatures of the opposite party. Section 32 (4) says only this much that opportunity of hearing is to be afforded to the parties. Signatures are necessary in order to bind the respondent by the contentions made by him in the written statement. Apart from it the written statement bears the signatures of the counsel and the power-of-attorney executed by the appellant authorised him to sign the written statement and petition. So there is no material flaw. The appellant is allowed to sign the written statement.
7. As otherwise there is abundance of evidence against the respondent and only on technical defects of not starting de novo enquiry and recording the evidence of one additional prosecution witness after the close of the defence evidence, the order of re-instatement is being upheld, the respondent is not entitled to back benefits. The appeal is partly accepted and the decision of the learned lower Court is modified disallowing back benefits to the respondent.