Instant appeal arises in the background of facts that Shad Muhammad respondent a workman was charged for theft of some two valves weighing about two K.Gs. And 420 grams respectively and brass ring and pieces of brass weighing 370 grams allegedly having been earlier thrown away from over the boundary wall of the Factory which the respondent had allegedly picked up pretending to sit at the places to make ease and that later on he had thrown away the packets when called upon by the watchman who had since been keeping watch on him under the directions of the management, which had the information of throwing away of articles from over the boundary wall by someone with bad motive and had deputed the watchman to apprehend the culprit who was to pick up those packets. In a domestic inquiry, the two watchmen Miraj Gul and Ghafar-ul-Haq were examined besides one Iqbal Badshah A.S.O., and Ajab Khan, Gate Supervisor, all without oath or solemn affirmation. Shad Muhammad respondent was examined who denied the charge and attributed bad motive to Miraj Gul watchman, whose annoyance he had earlier incurred over a dispute of a turn of receiving lunch from canteen followed by altercation and also threatening him with dire consequences. The respondent was not cross-examined and his statement of denial remained unquestioned. The respondent was a Helper, Maintenance. There was not led evidence if the said things were ever issued to him. There was also not led evidence about the shortage of the said things in the store. There was led the only evidence that the said things were the Factory products. Falak Niaz and Ikramullah were produced by the respondent who gave evidence of the earlier incident of the quarrel between the respondent and Miraj Gul watchman over the turn of lunch in the canteen followed by altercation. They were also not cross- examined. Ibrahim Gul from whom the respondent had allegedly borrowed his "CHADAR" to sit for ease at the places to facilitate the picking up of the articles was also not examined during the domestic inquiry. The inquiry report was, however, still to find the respondent guilty of the charge of theft and inflicted upon him the punishment of dismissal from service where against he filed grievance petition in the Labour Court
2. In the Labour Court he examined himself on oath in denial of the charges and also produced his two witnesses Falak Niaz and Ikramullah the employees of the establishment abut the earlier incident of quarrel between him and Miraj Gul watchman. The management produced Muhammad Rafique one of the Inquiry Officers to exhibit the proceedings of the domestic inquiry. The learned Labour Court accepted the grievance petition after finding that Miraj Gul, The watchman nursed grudge against him due to earlier quarrel and altercation and that he had slapped the respondent on the day of his alleged apprehension without any cause. He had consequently ordered his re-instatement in service within one month and also allowed him full back benefits and wages. The management has filed the instant appeal against the aforesaid orders of the Labour Court
3. After due scrutiny of the record and hearing of the learned counsel for the parties, there were noticed some material irregularities in the conduct of domestic inquiry as that the prosecution witnesses were not examined on oath and the respondent and his witnesses were not cross- examined, whose evidence as such remained unquestioned. A domestic inquiry is conducted by the employer under subsections (4) and (5) of section 15 of the West Pakistan (Standing Orders)
Ordinance 1968 when a workman is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him followed by holding of independent inquiries against him. Under section 5 of the Oaths Act 1873 all witnesses i.e. All persons who may lawfully be examined or be required to give evidence by or before any Court or person having by law or consent of parties authority to examine such person or to receive evidence shall give evidence on oath or affirmation. In fact a Court or a person with authority under the law to examine a person as a witness has no option but to examine a witness on oath or solemn affirmation and it is only where the witness is a child and the Court is of opinion that he does not understand the nature of the oath or affirmation that he may record his evidence without oath or affirmation.
Section 13 of the Oaths Act, no doubt, cures the act of irregularity in the conduct of proceedings in case of omission to administer oath or affirmation to the deponent but, nonetheless, the evidence recorded without oath cannot balance in weight with the evidence on oath. Somewhat alike view was forwarded in an authority of the Punjabi Labour Appellate Tribunal published in NLR 1978 Labour 292 when statements of the witnesses not given on oath in a domestic inquiry were held inadmissible and the verdict of the inquiry officer based on such evidence was declared invalid.
4. It was contended by the learned counsel for the appellant that the Labour Court was only concerned with the question whether action taken against the employee was in accordance with law and that the question of fact whether the employee did or did not commit the offence charged with can only be inquired into by the inquiry officer and not the Labour Court in a grievance petition. The above view was enunciated by the Supreme Court in its judgment published in 1975 SCMR 46, judgment written by His Lordship Mr. Justice Wahid-ud-Din Khan. However, the said view was later on changed in a judgment published in PLD 1978 SC 207 to which Mr. Justice Wahid-ud- Din Khan was also a party and with reference to subsection(5) of section 25-A of the I.R.O. 1969 it was held that another forum in the Labour Court was purposely created by the statute to determine afresh after considering the facts on which any impugned dismissal is based and for that it is to enter into question of fact to arrive at his own conclusion regardless of there being no illegality of procedure in the domestic inquiry. It was laid down that in fact the legislature intended to provide a double check one in the form of domestic inquiry to be held by the employer and the other in the form of judicial proceedings to be held by the Court where-before the parties are required to lead evidence in support of their causes as that the employer has to lead evidence to prove justification of the order passed by him on merits and that the employee has to lead evidence in support of his cause. Here the employer has failed to lead any evidence in justification of the orders of dismissal passed by it and has only exhibited the proceedings of the domestic inquiry in the statement of the inquiry officer and as such it can be safely inferred that the employer has failed to lead evidence in justification of the orders of dismissal. In the context reference is made back to the fact of the recording of the prosecution evidence in the domestic inquiry without oath and also that the statement of the respondent in denial of the charges and the statements of his witnesses about the earlier incident of quarrel between the respondent and Miraj Gul, watchman stood unquestioned for having not been cross-examined. On the other hand in the Labour Court, the respondent and his witnesses were examined on oath followed by cross- examination which could be fairly read to exonerate him of the charges and simultaneously to impute mala fide to the management through the ill-motive nursed by Miraj Gul, watchman.
Besides on otherwise factual plane, charges, criminal in nature, were not being found proved beyond reasonable doubt since there was not led evidence as to who had seen any person throwing away the articles from over the boundary wall and when and how the said happening had occurred and that who had informed the management about the incident which had onward prompted it to depute the watchman to apprehend the possible culprit. The articles were allegedly recovered from 40 paces to 200 yards distance from the boundary wall and the articles of the weight could not possibly be thrown away from over the boundary wall to such a dis--tance. One Ibrahim allegedly present at the scene of occurrence and likely not to be favourably disposed towards the prosecution was not examined by the management in the domestic inquiry as well in the Labour Court
5. In view of what has been stated above, there has not been found any merit in this appeal and accordingly this Court would order its dismissal with costs. Pleader's fee is fixed at Rs. 500/---(five hundred only).
M.Y.H./56-L/Lb.N