' This is an appeal against the order, dated 20th January, 1982 passed by the II nd Sind Labour Court, Karachi, whereby the respondent was ordered to be re-instated by the appellants with full back benefits.
2. The facts leading up to this appeal briefly stated are that the respondent workman was dismissed from service by the appellant. He filed an application No, 49/79 in the IInd Sind Labour Court, Karachi, which passed the order re-instating him ordering fresh enquiry on the basis of the same allegations specified in the charge-sheet, dated 28th December, 1978. The allegations against him briefly stated were that he behaved in a disorderly manner and hit Qureshi a co- worker resulting in an injury to him on his eye and on the intervention of the Labour Officer, also gave him a beating and thereby committed act of misconduct. The appellants after re-instating him in pursuance of the order of the Labour Court, as above mentioned, initiated a fresh enquiry against him. The respondent participated in the enquiry in the first instance, but subsequently disassociated himself from it due to allegedly on account of an unfair attitude of the enquiry officer. Ultimately on the basis of the report of the Enquiry Officer, he was dismissed from service by a dismissal order signed by Mr. Suleman Gaba, the Senior Executive of the appellant, on 5th June, 1980. The respondent served the appellants with grievance notice and his grievance having not been redressed, he filed an application under section 25-A, I. R.
0., before the IInd Labour Court, Karachi. The learned Labour Court, vide its Order, dated 20th January. 1983 ordered re-instatement of the respondent with full back benefits. The appellants have impugned this order in this appeal.
3. The respondent alleged that he was not dismissed from service by a competent authority under the Law and that even his case on merits would not justify his dismissal from service.
4. The parties led their evidence, the appellants examined Mr. S. K. Ali Ahmed, the Enquiry Officer and the respondent examined himself, in support of their respective contentions. I have persued the entire evidence available on the record, oral as well as documentary. I have also heard the learned representative for the appellants, Mr. Mahmood Abdul Ghani and the learned Advocate for the respondent, Mr. Muhammad Kazim Mirza Mr. Mahmood A. Ghani has raised three- fold, contention ; firstly, that Mr. Suleman Gaba, the Executive of the appellants was notified as Factory Manager of the appellants and was competent to pass the impugned dismissal order, secondly, that on merits the case of the respondent was neither just nor proper for re-instatement and in any case, the appropriate remedy was only compensation, and thirdly that the respondent indulged in a prolonged litigation against the appellants and had also to withdraw from participating in the domestic enquiry at a subsequent stage and therefore, was not entitled to back benefits.
5. As regards the first contention, on the basis of the evidence that was recorded at the appellate stage, Mr. Mirza Muhammad Kazim no more contested his issue, as Mr. Suleman Gaba, the Senior Executive of the appellants who signed the dismissal order of the respondent was found to be a notified Factory Manager, and, therefore, the employer within the meaning of section 2(c)(i) of the West Pakistan Standing Orders Ordinance, 1968. At the time of the alleged dismissal order was passed and signed by him against the respondent. Accordingly, there is no doubt that the respondent was dismissed from service by the competent authority.
6. As regards the second contention raised on behalf of the appellants with regard to the merits of the case the allegation against the respondent has been that on 28th December, 1978 at about 3- 00 p.m., he got entered into the Labour Office of the factory and while shouting hit Jamadar Quresh on his eye, and on intervention, of the Labour Officer he assaulted his also. With regard to this incident, there appear three versions, the one in the report lodged by Jamadar Quresh to the Manager, Exh. 'H', the other in the domestic enquiry, the relevant papers of which are available on the evidence on the record and the third, in the First Information Report lodged with S.I.T.E Police Station by Quresh Jamadar on the date of the incident viz., 28th December, 1978 at 3.30 p.m. So far the assault on the Labour Officer is concerned, there is not even an iota of evidence in support of the version to that effect and there is no need to discuss that aspect of the incident at all. He regards the assault on the Jamadar Quresh, as already stated by me there are three different versions. In the report to the Manager of the appellants, Quresh Jamadar stated that he was hit on the left eye. He even stated so in his statement before the Enquiry Officer. He further stated before the Enquiry Officer that he also kicked him but there is no corroboration to that version from any other quarter. The alleged eye-witness to the incident Havaldar All Ahmed, does not any that he saw the incident himself though the respondent was present shouting that he will still hit Quresh.
He further stated that he found the left eye of Jamadar Quresh badly hurt but he did not see the wound beneath the eye. It would appear that the incident was reported by Jamadar Quresh in the first instance at S.I.T.E Police Station and the copy of the First Information Report admittedly lodged there has been produced vide Exlh. '0'. It appears to be an earlier version and as I find, it completely belies the version of Jamadar Quresh put forth by him in his report to the Factory Manager and even during the course of his statement in the domestic enquiry before the Enquiry Officer. This First Information Report clearly discloses that Quresh was hit on the right eye, and that one Karim hit him, whereas respondent Naseebzada, Rehmat and Muhammad Saeed kicked him. There is no version from any body else that Rehmat, Muhammad Saeed were also present at the place of the incident alongwith respondent Naseebzada and that they also kicked him. It is strange that Jamadar Quresh is not definite as to whether he was hit on his right eye or left eye, and as to whether he was assaulted and hit by the respondent Naseebzada or by one Karim. The First Informatian Report discloses that Quresh was sent to the Abbasi Shaheed Hospital for treatment, but no such report from Abbasi Shahed Hospital was produced. Jamadar Quresh in his statement before the Enquiry Officer has himself stated that he was sent for the treatment to Abbasi Shaheed Hospital and he also got the report but he lost the same and, therefore, was not able to produce it.
His version in the report to the Manager and in his statement during the course of enquiry in clearly belied by his earlier version in the First Information Report not only with regard to the part of the body where he was hit but even with regard to the person who hit him as in that version he clearly said that he was hit by one Karim. The evidence adduced, therefore, does not reliably show that he committed any overt act at the time of the alleged incident. I would, therefore, find that there is no cogent and reliable evidence available to substantiate allegations against the respondent for having acted in the manner alleged against him of assaulting and hitting Jamadar Quresh, causing injuries to him and kicking him at the time of the incident. Reliance in that respect has been placed on a decision of this Tribunal in the case of Dilbar Khan and another v. Messrs Adamjee Cotton Mills Ltd., Karachi decided in the identical circumstance. It would, therefore, appear that the dismissal order passed against the respondent as disclosed in the evidence on record has not been shown to be warranted on factual plane. Clause (5) of section 25-A, I. R.
0., is clear to the effect that in adjudicating and determining a grievance under subsection (4) the Labour Court shall go into all the facts and pass such order as may be just and proper in the circumstances of the case. It would, accordingly appear that as envisaged by section 25-A (5), I. R.
0., there is a question of judicial determination and not merely of a formal compliance of holding an enquiry into the allegations of misconduct. Reference in that respect is invited to the case of Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub etc. .
7. Confronted with the situation, Mr. Mahmood A. Ghani appearing on behalf of the appellants has contended that in any case, it is the case in which a compensation would be an appropriate remedy rather than reinstatement as ordered by the learned Labour Court. In support of his contention, he has relied on two authorities in the cases of The Glaxo Laboratories (Pakistan) Ltd. v.
Pakistan and others and Ahmed Ibrahim Shamsi v. Second Sind Labour Court, Karachi and another . These authorities would not be of any avail to the case of the appellants for the simple reason that the former is based on the standing orders of the company and the request thereunder pertained to contractual rights and obligations, rather than on the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, having a statutory force, creating statutory rights and obligations, whereas the later in effect carries the same import. The reliance placed by the learned representative on the two decisions, therefore, appears to be misconceived. Apart from it, Mr. Muhammad Kazim Mirza appearing on behalf of the respondent has drawn my attention to the amendment in Standing Order 12(3) by the Act XXIII of 1973 and to the omission of Standing Order 18 by Ordinance IX of 1972, which Standing Orders, as it then ' stood, provided for passing orders regarding costs as deemed just and proper. Mr. Mahmood A.
Ghani on the other hand has not referred to any other appropriate authority or the provisions of law in support of his contention to the contrary. There is no gainsay that the dismissal order having been found unjustified and improper on the basis of the evidence available on the record, the legal consequences would be the reinstatement of the respondent. The learned Advocate appearing on behalf of the respondent in that respect, amongst others, has placed reliance on the Indian decision, reported in the case of Tata Chemicals Ltd. And others v. K. C. Adhvarye . I, therefore, find no substance in these contentions raised on behalf of the appellants.
8. Coming to the last contention raised on behalf of the appellants, the record of the case clearly shows that the parties appeared to have been engaged in a legal battle by coming in this Tribunal in suo motu revisions, against the orders passed by the learned Labour Court refusing to record1 2 3 4 5 fresh evidence at a belated stage on the issue as to whether or not the order of dismissal was passed by a competent authority, and by going to the Hon'ble High Court in writ petitions against the orders passed by this Tribunal directing the Labour Court to reconsider the matter. The Hon'ble High Court ultimately in Constitutional Petition No, D-934 of 1981 took the view that this Tribunal could not direct the learned Labour Court to summon and examine particular witnesses, but the learned Labour Court could in law re-examine the question to summon Suleman Gaba or the Assistant Director Labour Directorate in view of the appellate Court order, but the Labour Court declined taking the view that it had no powers of review under the provisions of the Industrial Relations Ordinance, 1969. I have carefully persued all orders passed by the learned Labour Court, this Tribunal and the Hon'ble High Court and I would be justified in taking the view that none of the parties would be blamed for having taken the legal course by coming in this Tribunal or going to the Hon'ble High Court in the legal proceedings and none of them could take an advantage of such situation which they appear to have created for themselves. As regards the contention that the respondent disassociated himself from the domestic enquiry at a later stage allegedly on the plea that the attitude of the Enquiry Officer was unfair and partial, what I have been able together from the evidence that has been produced by the parties, that even of the respondent had not disassociated himself from the domestic enquiry at a later stage, the result would not at all have been different. In my view, therefore, the respondent cannot be disallowed the back benefits awarded to him by the Labour Court, on that score. Accordingly, I find no force in this contention raised on behalf of the appellants, as well.
' The result is, that the appeal is dismissed. 1981 PLC 694 PLD 1989 SC 207 PLD 1962 SC 60 1976 P I C 293 1966 PLC 9