This appeal emanates from the decision, dated the 12th of November, 1980 passed by the learned Presiding Officer, Labour Court No, 6, Rawalpindi whereby the grievance petition of the appellant for his re-. Instatement in service was dismissed.
2. The facts are that the appellant who was an Assistant and General Secretary of the union was on leave on 31st of March, 1976 but had come to the Bank at about 9-15 p.m. On the pretext of collecting some information in relation to the services of some employees. An employee contacted him and told him that he wanted to go home but had been asked to give overtime against his consent. He enquired from the appellant whether he could go home. Certain other employees are alleged to have told the appellant that over time was being taken from them against their wishes, The appellant went to the Office of Mr. M. A. Javaid, Assistant Manager of the Bank and placing his bag on his table with a bang said that it was a cruelty (Zulam). He is alleged to have asked the workers to stop the work and not to give overtime. Mr. M. A. Javaid, Assistant Manager prevented the appellant from instigating the workers from indulging in strike but he did not desist from it. The workers came at the table of Mr. M. A. Javaid, Assistant Manager and gharaoed him. The appellant and the workers thereafter left the Bank with the result that the members of the management worked till late at night as it was 31st of March. The case of the appellant on the contrary is that no break from 3-00 p. m. To 3-30 p. m. Was allowed but in the over time chits the break was mentioned and that previously overtime was taken from the workers but in the overtime chits lesser period was mentioned, therefore, he asked the workers to get the overtime and the break mentioned in the overtime slips. The witnesses produced by the appellant said that the appellant left , the Bank but the workers continued giving overtime and left the Bank after completing their work.
3. Even if the version given by the appellant is accepted and it is held that the prosecution case is false and that whatever prosecution witnesses deposed during the inquiry is not correct, the act of the appellant was objectionable and amounted to misconduct. Overtime can be taken by the employer against the wishes of the workers if taking overtime is necessary, therefore, the appellant was not justified in asking the workers to stop the work. He even was not justified to interfere in the work. Instead of contacting the workers who were giving over time he should have asked the Assistant Manager to give the correct period of overtime and to enter the break period in the overtime chits. Interference with the work amounted to misconduct. No doubt the witnesses examined by the appellant did not say that he had placed his bag on the table of the Assistant Manager with bang and shouted that it was cruelty but there is no reason why the prosecution witnesses should have stated falsely. The office holders of the union generally are under the impression that they being office holders have to check the supervision of the management over the workers. But this is wrong. The appellant under the said impression went in the bank and interfered the work of the Bank. Whatever, he did amount to misconduct.
4. However, the inquiry was not properly made inasmuch as the Inquiry Officer acted as a prosecutor and thus the appellant has been prejudiced. The defence witnesses were not cross- examined by the Inquiry Officer. He allowed the complainant to cross-exam ine them but he did not allow Mr. Akram Javaid to cross-examine the appellant and himself crone examined him. While disallowing Mr. Akram Javaid to cross-examine the complainant, he remarked that it was against the rule. But he has not cited any rule to the effect that the workers under inquiry should be cross- examined by the Inquiry Officer and not by the representative of the Management. As a matter of fact, no representative was appointed by the Management to conduct the case before the Inquiry Officer. Mr. Akram Javaid was one of the prosecution witnesses, therefore, he could not act as a prosecutor or a representative. He, therefore, even could not cross-examine the defence witnesses.
The Inquiry Officer played the part of the prosecutor or the representative of the Management which is highly objectionable. The learned counsel for the respondent has not cited any rule of the Grindlays Bank Limited to the effect that so far as the worker under inquiry are concerned, they are to be cross-examined by the Inquiry Officer. Even if there is any such rule it is being against Public Policy and rule of Natural Justice is illegal. The status of the Inquiry Officer is above the representative of any of the parties, therefore, he cannot cross-examine any witness or the accused. He may put some questions to the witnesses of the parties and even to the accused but he cannot play the role of the prosecutor or the defence representative. He subjected the appellant to very lengthy cross-examination which he made intermittently by making many adjournments which shows that when he felt that the cross-questions were out of stock, he adjourned the inquiry and further prepared the case for cross-examination. This is noteworthy that the appellant raised objection that Inquiry Officer could not cross-examine him. It is thus clear that he actually felt prejudiced.
5. So far as the strike is concerned, it does not stand established. No doubt according to the prosecution evidence, the appellant asked the workers to stop the work and the workers gathered around the table of the Assistant Manager, but the Assistant Manager refused to get work from them, after the appellant had interefered. The prosecution witnesses stated that the appellant told Mr. Akram Javaid that he would give him concession by allowing the workers to continue to give overtime but Mr. Akram Javaid said that he would not take overtime from the workers and thereupon the appellant and the workers left the Bank. Even if the evidence of the prosecution is believed, since Mr. Akram Javaid was not willing to get overtime any more after the appellant had caused interference in the work of the Bank it cannot be said that workers had on the asking of the appellant actually observed strike and refused to do work.
6. Since the Inquiry Officer acted as a representative of the prosecu-ction in the inquiry the whole superstructure raised upon such on inquiry fell to the ground and no punishment could be awarded on the basis of such an inquiry.
7. As upshot of the observations made above ? I accept the appeal and setting aside the order of dismissal and the impugned order of the learned lower Court, direct the re-instatement of the appellant in service. However, as the appellant has succeeded on technical ground he is not entitled to back benefits.