' Mashooq Ali an employee of the Pioneer Steel Mills was charge-sheeted for abusing and beating Muhammad Sharif Assistant of Fitter during working hours; he denied the charge levelled against him by stating that it was Muhammad Sharif Assistant Fitter who abused him and gave fist blows.
This reply was considered unsatisfactory and an enquiry was held against the petitioner. The Enquiry Officer found him guilty of the charge levelled against him and the petitioner was dismissed from service on 12th May, 1981. The petitioner served grievance notice upon the respondent and then filed the present petition under section 25-A of the Industrial Relations Ordinance challenging legality of the impugned order.
2. It has been contended that the petitioner was not given an opportunity to defend himself; he was victimized for his trade union activities: the dismissal letter was not issued by a competent person because the person who signed the dismissal letter was not the employer. It has further been contended that the Enquiry Officer was the same person who had issued the charge-sheet against the petitioner and that the order of dismissal was passed at the time when the petitioner had filed another petition in this Court and a temporary injunction was issued on 6th May, 1981 whereby it was directed by my learned predecessor that services of the petitioner shall not be terminated pending application for referendum before the Register of Trade Unions, or even if the stay application is rejected by the Registrar of Trade Unions, still services of the petitioner shall not be terminated if operation of the Registrar's order is suspended by some competent Court. This application of the petitioner was rejected on 9th May, 1981 and the petitioner had filed a petition under section 34-A of the Industrial Relations Ordinance before my learned predecessor who had issued an order on 9th May, 1981 suspending operation of the order passed by the Registrar.
Notwithstanding this order by my learned predecessor the services of the petitioner were terminated on 13th May.
1981.
3. The petition has been resisted by the respondent. It was admitted that the petitioner was employee of the Respondent Mills but he had always created law and order situation with the result that he had to face the proceedings before N. I. R. C. As accused under section 16 of the Industrial Relations Ordinance. It was contended that the petitioner was guilty of misconduct, the charges against him were proved before the Enquiry Officer and he was rightly dismissed from service. The respondent submitted that the dismissal order was legally passed by a competent person.
4. Both the parties produced oral and documentary evidence in support of their contentions.
5. A reference to the impugned order will show that the proposed disciplinary action was incorporated in the form of a note the heading of which is "disciplinary action" and it is appended with the enquiry report (Exh. R. B.) submitted by Mr. Tahir Javed Butt, the Enquiry Officer towards the end of the note "disciplinary action" Mr. Yahya Kamal, the Assistant Manager Administration has reported that the "contents of this note have been read out to the Managing Director who is on tour to Islamabad on telephone today i. e. 12th May, 1981 who has approved the issuance of the dismissal letters to the following workers :-
(1) Allah Rakha Senior Fitter.
(2) Hassan Muhammad Qasi Incharge Time and Gate Office.
(3) Mashooq Ali Helper.
(4) Anwar Hussain Clerk."
6. Even a cursory glance over this order will show that the Managing Director, while passing the impugned order had not applied his mind to the facts in controversy. I am not prepared to believe that an enquiry in which seven witnesses were produced by both the parties besides the petitioner himself and the enquiry report consisting of 6 pages could be read out to the Managing Director on telephone, the latter could apply his mind on the matter in issue and come to a judicious conclusion. It appears from an endorsement on the same note that Mr. Yahya Kamal had decided to put up this note before the Managing Director when he returns from tour and on the same day r. e. 11th May, 1981 he changed his mind and read out the note to the Managing Director on telephone.
Such an order which has been passed without the application of independent mind cannot be given judicial recognition.
7. The impugned order is, therefore, set aside on the ground that the Managing Director had not considered and could not consider the matter in controversy on telephone, therefore, the Managing Director is directed to give personal hearing to the petitioner, go through the file and pass a speaking order which should show that he was aware of the charge against the petitioner, the evidence produced by the parties and report of the Enquiry Officer. He will not just ditto the finding of the Enquiry Officer but shall give his own independent finding in the matter. The question of back benefit order shall depend upon the final order to be passed by the Managing Director after hearing the petitioner. It is, further directed that the final order shall be announced within two months. If no final order is passed within two months petitioner shall be deemed to have been reinstated with full back benefits. The question whether fresh enquiry can be ordered is answered in PLD 1980 SC 307 wherein it was held that the employer could resume the proceedings against the employee after giving him a reasonable opportunity to show cause against the proposed order of dismissal. The authority was followed in 1982 PLC 481 by the learned Labour Appellate Tribunal Sind. It was held in the last mentioned ruling that under these circumstances it cannot be said that the workman has been absolved of the charge and a fresh enquiry could be allowed to be held against the employee. Again in 1982 PLC 487 it was held that where termination of service was improper the employer should be given option of holding proper inquiry because failure of the employer to adopt the proper procedure before terminating service of an employee does not wash the guilt of accused and the payment of back benefits should be made dependent upon the result of such enquiry. The same proposition of law was laid down in 1981 PLC 203 and 1982 PLC 949. In the last mentioned ruling it was held that where the "orders of termination are based on an invalid and improper enquiry, ordinarily the Management should be allowed to hold a fresh enquiry and the award of back benefits, if any, should be made dependent upon the result of enquiry." In this case Management was allowed an option to hold a fresh enquiry and the award of back benefits was made dependent upon the result of enquiry.
8. The upshot of what has been stated above is that the impugned order is set aside, the petitioner is reinstated in service from the day he reports for duty and the Managing Director is directed to pass a fresh order in the light of what has been stated in para 7 of this judgment.
9. The petition is accepted to this extent only and the parties are left to bear their own costs.