Mr. Haider Zaman who claims to be an office-bearer of Muhammad Farooq Textile Mills Azad Labour Union, has come again to the Labour Court after the Labour Court had issued directions of fresh enquiry to the extent of observations in the decision announced on 4th Feb. 1986.
2. The Labour Court after examining the contentions of the parties on the basis of earlier evidence, framed certain points for determination, to facilitate the Enquiry officer to examine the points in issue, on the basis of evidence with the directions that applicant will also be given chance to produce the defence, record his statement and give the opportunity to the worker to nominate the worker of his choice. Thereafter, on the decision arrived at by the Enquiry Officer, and to place the matter before the employer for any action he deems fit. There was also specific direction that the Court has to again examine the decision of the Enquiry officer.
3. In para 17 of the Court's decision the Court had also taken the view that if application is moved by the applicant in the enquiry proceedings, separate order be passed in the diary of the enquiry file to appreciate, who is responsible for the delay or denial of the opportunity. These observations were significant.
4. Mr. Haider Zaman has again come with the grievance that after 4-2-1986, applicant reported for duty on 4-2-1986, 5-2-1986 and 6-2-1986 but he was not taken on duty. It was the first time, on 6- 2-1986 he received enquiry letter, to appear before Enquiry Officer on 9-2-1986 in the mill premises.
He went with his witnesses, but his entry in the mill was not allowed. On 9-2-1986 he sent the letter informing the management for the nomination of the co-worker to defend him. He also received the letter from the management that he reached the gate late and therefore the enquiry was postponed on 10-2-1986. He received another letter that enquiry is fixed at 2.30 p.m. On 16th of Feb.
1986. On 16-2-1986 when applicant came for enquiry at the gate he was not allowed to enter. He sent the message to the Enquiry Officer. No enquiry was held on that date. Labour Officer of the respondent met him at the gate and told him to resign. He was offerred the wages but he refused without offering him the duty. He was offered substantial amount to leave trade union activities, he refused. On 16-2-1986 he sent the registered letter that he was not allowed for facing the enquiry.
After the receipt of this letter, respondent fixed the new date for enquiry, and proceeded ex parte.
On 24-2-1986, he received the dismissal, order dated 22-2-1986. He did not receive the copy of the report, intimation of the personal hearing.
5. Applicant has shown the victimization, firstly that he is the office-bearer. Secondly he sent the letter to the Registrar of Trade Union that CBA certificate should not be issued and referendum should not held till decision of no-confidence notion against the President and the General Secretary of Azad Labour Union. Thirdly he sent telegram to Registrar that the referendum be stayed on 14-11-1984 to avoid the success of the pocket union. It was due to this annoyance, he was charge-sheeted of the misconduct.
6. Respondent has filed the written reply that Mr. Haider Zaman was the Finance Secretary of Farooq Textile Mills Azad Labour Union, which is not the CBA. The respondent has shown no concern with the dispute of the President and General Secretary. They have explained that referendum was being held on 14-11-1984 of the bona fide application. It was not the secret referendum. They have denied that the management forced the workers to cast vote on 14-11-1984. They have denied any victimization but explained that full opportunity was given before the ex parte proceedings. They have admitted that second show-cause notice was issued and copy of the enquiry report was furnished. They have also contended that the directions of the Court did not mention about these statements. They have also shown, when the applicant appeared at the gate he refused the delivery of the letter dated 4-2-1986 to appear and participate in the enquiry on 6-2-1986. Another registered letter was addressed for his appearance, further notifying through publication in newspaper Amman. Applicant did appear on 9-2-1986 and asked permission to bring the co- worker he did not turn up. Enquiry Officer waited till 12-30 p.m. And adjourned the enquiry. The fact was notified through telegram with the notice published in Daily Amman. On 10-2-1986 letter was received from the applicant that he was not allowed inside the gate on 9-2-1986. This letter was relied dated 10-2-1986. Applicant failed to participate he was directed to appear on 16-2-1986. This letter was received. The notice was also published in the Daily Amman. They have denied that applicant reported for enquiry on 16-2-1986 or they asked him to resign.
R E A S O N S:
1. My first attention was drawn to Annexure A-2 which is the letter of management addressed to worker Mr. Haider Zaman, where the management has interpreted the Court's order, showing that if the ex parte order was set aside, it did not contemplate the reinstatement. Unfortunately, the management has gone by the technicalities of the wordings rather than to see the substance of the order. The order, if directed enquiry, obviously presupposed that reinstatement will be subject to the enquiry and the effect thereon regarding back benefits. Secondly if the impugned order was set aside, it was the lack of the opportunity to defend. Therefore, if technicalities of the wording is to be referred to, there will be no end of human reasoning. It is the substance of the order which is very clear that ex parte order is set aside fresh enquiry be conducted in the matter.
2. The second contention is, of the merits, whether Mr. Haider Zaman co-operated with the management in completing the enquiry proceedings, or again the Court is to face another difficulty whether it was Mr. Haider Zaman who was at fault in co-operating with the management or the management did not allow Haider Zaman, entry in the mill gate. The question therefore poses whether the parties genuinely desired to serve the requirement of justice or again to create further problem, leading to litigation, with no end.
3. The Court also refers first the previous background, where also the management has raised the similar question that when the charge-sheet was offered, Mr. Haider Zaman refused to accept and thereafter the attempt was made to call for his appearance through publication in the local paper which was unusual in the labour cases. This situation again has been raised that telegram and publications were made calling upon Mr.Haider Zaman to face the enquiry and finally on 16of Feb.
When the respondents proceedings were conducted but it is the same contention raised that Mr. Haider Zaman did not appear. First letter was directed A/2 to bring the witnesses, second letter shows the modification of the date as 9th, third letter of 10explains the entry of the conduct of Mr.Haider Zaman A/3 that despite the fact to bring the nominated worker, he did not comply with the order with further warning that if he failed to appear, the enquiry will proceed ex parte and further gave him chance to appear on 12th when on 12th he did not appear the management proceeded ex parte on 16th of February.
4. With this background, the only grievance of the worker is that he was not allowed at the gate to enter for the purpose of enquiry of which he had no hesitation to avoid. This background reflects that the victimization was due to this annoyance that he is office-bearer and did not desire referendum to take place, which was ultimately postponed by the Registrar of Trade Union because he had the apprehension that pocket union will be successful.
5. The Court again refers the charge-sheet which was given to Mr. Haider Zaman that on 14-11-1984 he was armed with the iron bar went to the Weaving Department, to incite the workers to stop work.
They stopped the work under the fear of injury. There were slogans of objectionable language as a protest that the Labour Directorate to stop the referendum. They also continued strike.
6. What is the evidence led in the Labour Court to justify the ex parte order of dismissal when Mr. Haider Zaman did not appear second time under the Court's directions to complete the enquiry. At this stage the Court takes this impression that if parties would have come in the Labour Court on the merits of fulfledged enquiry with the defence put forward by Mr. Haider Zaman they would have facilitated the task of a Judge, in the administration of justice. Unfortunately this is the second time the ex parte matter is being placed before the Court and the Court has to decide, that, whether, repeated demands would serve the requirement of justice or the parties be informed that who was causing obstruction in the administration of justice, and there should be end of it from further litigation, and unnecessary problems.
7. The evidence in the Labour Court is as under: "Mr. Haider Zaman has admitted in the evidence that he received the letter by post from 6th to 16th from the management but he has the only grievance that he was not allowed inside the gate. He is not in a position to disclose the names of the persons in whose presence he was obstructed. But finally when the evidence was being closed finally in cross-examination he has given the names of Mr. Rahim and Mr. Sakhawat, in whose presence he was not allowed to enter.
8. What Mr. Rahim Khan states. He states that he was working in the Weaving Section, Mr. Haider Zaman came on 9th at the gate. Police was standing at the gate of the mill. The gate was locked.
Haider Zaman was not allowed to enter. C BA President was also present (Mr. Muhammad Ishaque).
9. What Mr. Sakhawat Hussain states. He states that he was working in the mill on night duty from 12 mid-night to 8 in the morning. Security Officer Mr. Gulistan Khan was present on 9th and on every gate police was present. He is also the treasurer of the union which union is not CBA.
10. At this stage, with the consent of the parties it was the desire that police officer also be examined as the witness of the Court, to throw light on this aspect whether the management had called police to harass the workers. The Court on their request examined the A.S. Incharge of Landhi Police who by reference to the Station Diary have also confirmed that there is no substance in the assertion of the witnesses that police was posted in the Textile Mill on the relevant dates.th th
11. Mr. Ishaque is the Vice-President of CBA as stated by him. He states that he had no knowledge of the incident of charge-sheet or he found police at the gate. The witness was not cross-examined as the applicant and his counsel remained absent, having been fully aware of the date of hearing.
No attempt was made to seek the Court's indulgence for cross-examining the witness or showing sufficient cause of their non-appearance. This is also the circumstance. Court has taken note of for the assistance in the appreciation of the evidence that why they remained absent.
12. Then there is evidence of the Enquiry Officer Mr. Hifzul Yameen. He has referred to the diary of the fresh enquiry proceedings A-1 to A-3 and further disclosed in the cross-examination as follows: "Haider was absent in the enquiry proceedings. I see statement of Abdul Aziz witness. Abdul Aziz has not said anything about the charge-sheet against Haider Zaman. The statement was recorded on 16th in respect of the charge-sheet of the incident dated 14-11-1984. I see the evidence of witness Sarwat Saeed, he has said that Haider Zaman obstructed them to stop the work. It is incorrect to suggest that Sarwat Saeed and Hakeem did not give the evidence that the workers had stopped the work due to instigation of Haider Zaman. All the witnesses had said that the work was stopped for 5 hours, and therefore, I had drawn the inference of the loss of production. The record was not produced because the mill was closed. It is correct that no witness produced the record. On 13-11- 1984 there was weekly holiday on 14th. He forcibly entered in the mill. I see question put by the Enquiry Officer to the witness Syed Yousuf Aziz. It was Haider Zaman who told the workers not to vote in the referendum..It is incorrect to suggest that the management of the respondent managed to get the election held on 14-11-1984 and therefore, on the same date the majority of the workers opposed the referendum and did not participate.
13. The Enquiry Officer again at the second place has replied to the question in this manner: "It is incorrect that applicant did not raise the slogan because he was not present in the mill."
14. Then there is evidence of Mr. Gulistan who is the Security Officer. He has stated more clearly in his evidence that it was not the management who had obstructed Mr. Haider Zaman to enter in the mill. There is also question by the counsel whether he stated also before the Enquiry Officer that the management of the mill had given him instructions that he should allow the applicant to enter in the mill and the suggestion was that he had not stated so. The witness stated that he had stated before the Enquiry Officer that management had given the instructions to allow Haider Zaman to enter in the mill so that he should participate in the enquiry proceedings. He has also denied the suggestion that enquiry was proposed to be held in the office of the Enquiry Officer and not in his office. He has also stated in the evidence that Enquiry Officer had also come in his office and gave him the instructions that he will conduct the enquiry in his office.
REASONS:
1. Regarding the evaluation of the evidence, its effect firstly the dates of attending the enquiry and coming at the mill gate in pursuance of the letter of the management, are admitted by Haider Zaman himself. This shows that he was fully aware of the communication of letters. Secondly if Mr. Haider Zaman found the obstruction that the lower officials of the management had a partison attitude with the management, how for there is accuracy in the version. This aspect Court has examined in the very difficult situation where both parties have contended that Haider Zaman did not co-operate and Haider Zaman contended that he did attend the enquiry but was not allowed.
Haider Zaman has examined Rahim and Sakhawat Khan his own labour on the point of entry in the gate whereas the Security Officer Gulistan has been examined by the management who also belonged to the working class and did not support Haider Zaman that he was obstructed at the mill gate or there was police harassment. The evidence of the Security Officer is rather very significant in this respect. One can not take this view that because Security Officer is the paid employee of the management, his evidence therefore be rejected, for otherwise there will be no end to the controversy. Security Officer is the member of working class. His evidence has remained un-impeached on very point of credibility. The Vice President of CBA also did not support the police at the gate and at the same time shown ignorance about the incident of the charge-sheet, of course draws this inference, from his silence about the ignorance of the incident, that he has given more guarded statement if taken in that factual perspective. To be precise therefore, the Court has further proceeded to examine other circumstances, as well, besides the evidence of Gulistan about the accuracy of the version, for example if the Court comes to this conclusion that Haider Zaman would have the freedom to enter in the mill, why he should come in the Court and file the grievance. Similarly the Court also finds if the management have no desire to call Haider Zaman for the enquiry, what was the need by the management, to publish his service of appearance in the paper, involving the expenses, and usually in the labour matters. This demonstrated the sincerity by the action of conduct, by the management and weakens the case of Haider Zaman that he had no freedom to enter when Sakhawat and Rahim Khan also were not present at the gate at the relevant time to show that he was obstructed or had no freedom to enter. The evidence of Gulistan therefore forms the very basis where the Court has to judge the quality of his evidence either to reject or accept. The counsel has also stretched to further impeach his credibility in the question and answer suggested in this Labour Court that he had not said so that he had received the management's instructions to call the Enquiry Officer when Haider Zaman comes at the gate.
Indeed the witness did not anticipate this question in cross-examination and therefore it can not be used as an adverse against him that he has not said so in affidavit and therefore his evidence be taken as rejected on this point. The Court is of the view that this was not a contradictory statement but omission to state the fact in the affidavit which further has been elicited through cross-examination where only the Security officer gave material facts in the affidavit and further disclosed in cross-examination what was truth. There is difference between the omission and contradiction. The witness could not anticipate this question in cross-examination and therefore his evidence could not be rejected or there is any doubt on its credibility of his presence at the particular time being a Security Officer knowing the full facts who was coming in the gate and who was not coming, in the gate. He was therefore, a proper man on the factual aspect of the presence of Haider Zaman. If for argument's sake the counsel contended, that the enquiry was to be held in the office of the Enquiry Officer and not in the office of Security Officer as stated by the Security Officer in cross-examination, the Court is also of the view, whether the management holds enquiry in the Security room near the gate or in the enquiry office of the Enquiry Officer. It is the privilege of the B employer to choose any place of enquiry as long as the enquiry is conducted in accordance with the judicial requirements. The worker can not dictate the choice and impose his will on the management. All that he has to succeed whether he has committed misconduct.
2. The Court however has examined the evidence recorded in ex parte. Number of witnesses were examined including Gulistan, Yakoob and Kala Khan. Kala Khan is a Shift Supervisor of Weaving Department. His evidence is also very significant. He has stated that when Siraj Fitter, Sher Muhammad were trying to close down the Department, no worker agreed to stop the machine. At about 10-45 a.m. Siraj, Sher Muhammad, Mumtaz, Haider Zaman and Kala Khan came with iron rods and assaulted the workers . . . . . He has also produced witnesses Akbar, Rafat, Hakeem, Sarwat Saeed, Gulistan Malik, Aziz and Jabbar. They corroborated the statement of Kala Khan.
3. The evidence of this witness in the ex parte proceedings consisted of the workers who were also labour class. Of course it has been shown in the Labour Court that record was not produced regarding production. But whether non-production of the record has any reaction on the case.
Non-production of the record of the factory that there was less production at the most will relate to the loss of production estimable financially. The point will be for the purpose of this decision on the points formulated whether applicant was guilty of misconduct of disorderly behaviour. The evidence in the ex parte proceedings if the Court holds that Haider Zaman had the atmosphere open to face the enquiry, which he did not avail, the evidence L therefore even in ex parte will stand un-rebutted, for he himself had taken the choice of not responding to the Court's order and his explanation in this Labour Court on the question of facts as the Court has examined has also no merit. The Enquiry Officer in this evidence has also said which Court will point out for the purpose of point for determination on the loss of production the Enquiry Officer has said in the Labour Court that he had drawn inference of the loss of production by the stoppage of work. The record was not produced because the mill was closed. He has further stated that no witnesses produced the record of production. On 13-11-1984 there was weekly holiday. On 14-11-1984 he forcibly entered in the mill. With this explanation therefore if record was not produced the loss of production estimated cannot be decided but the Court is of the E definite finding that in view of the evidence produced he is shown as guilty of misconduct, of disorderly and riotous behaviour.
4. The last question is very important which has engaged the attention of the Court regarding provision of the enquiry report to the man concerned and the second show cause notice, which is of personal hearing.
5. Surprising aspect in this matter is, that in para 10 of the written statement the management, has taken stand that the second show cause notice was provided, and the enquiry report was also supplied whereas the Enquiry Officer has stated that they did not provide the copy of proceedings or second show cause notice. At the same time he has come out with the clear explanation that they supply second show cause notice only to those who participate in the enquiry.
6. This is, contradictory statement, between Enquiry officer and the author of the written statement who will be the management.
7. This is surprising, that, why there should not be consistency, in the statement. The Court has considered, this aspect taking the mala fide can be attributed to the management, and should the evidence of ex parte be rejected. The Court is of the view that the evidence has been appreciated in its own quality. By this mis-statement the evidence cannot be affected attributing the mala fide conduct of the enquiry as a whole. Labour class has appeared, supported the management and the Court has given its opinion. In this Court also the enquiry report if it was not provided to the applicant, it has been relied upon in the Labour Court for the purpose of cross---examination on the same material and therefore no prejudice is shown to the applicant for the omission to provide a copy, which was the judicial requirement. The Court has examined this aspect why it was not provided. It has considered the aspect looking to the circumstances that if applicant himself can be arrogant and not responding to the enquiry much can be said that he might have hesitated to receive their report also. However no prejudice is caused now. They have acted on this report in the Labour Court.
8. Regarding show cause appearance. In number of cases it has been held on the basis of judicial decision that personal hearing is mandatory requirement. But the attention of the Court is also pointed to the latest decision of the Hon'ble Supreme Court that show cause notice is not mandatory requirement.
9. In number of cases this Court has taken consistent view that second show cause notice is necessary. But after going through PLC 1986 on page 1018 reference has been made by the learned Labour -Court Judge to the latest authority of the Hon'ble Supreme Court of Pakistan published in PLD 1981 Supreme Court page 225: The observations are these: "Issuance of second show cause notice of personal hearing is not the mandatory requirement of law unless provided by some G statutory or departmental rules. The purpose of law is only to inform the accused worker regarding allegation against him and to provide him an opportunity of hearing. The evidence against him and to adduce any evidence found necessary for defence."
(quoted from the published decision).
Previously the Court has quoted in number of cases the case of Muhammad Younus v. Labour Appellate Tribunal, of 1984 PLC 378 at page 381 on the question of second show cause but in view of the present case law which the Court has referred, second show cause notice does not appear to be necessary.
10. However Mr. Masood Mirza has also referred to very important aspect. After the Court had directed fresh enquiry, telegram was also sent by Farooq Textile Mills that Haider Zaman was not co-operating with the management in responding to the Court's directions. Since the Court had given decision, this aspect was to be considered of both the sides in the future proceedings after the Enquiry Officer had given the decision. The contentions of both the sides were of different nature. Management had the grievance that Haider Zaman was not co-operating. Haider Zaman was complaining about the non-co-operation of the management. The Court has already discussed this aspect in the judgment fixing the responsibility on Haider Zaman and therefore this telegram is also taken judicial note of this factual aspect that Haider Zaman by his own conduct and the circumstance Showed the arrogance and took the directions of the Court very lightly. It is unfortunate that office-bearer of the union may have assumed that he is an office-bearer and the directions of the Court have no importance. The Court has discussed the reasons in the order, examined the circumstances and has come to the conclusion by fixing the responsibility on one party for obstruction and unreasonable attitude in order to end the controversy. Similarly the Court also regrets about the false statement made by the witness of the respondent regarding non- supply of the enquiry report. The Court has examined this aspect and also found that witness should have discharged the responsibility before the Court of law on oath. But at the same time this legal aspect of non-supply of enquiry report, Court has examined and referred the latest decision of the Hon'ble Supreme Court referred in PLC 1986 quoted by the Labour Court Judge (PLD 1981 page 225) whether notice of second show cause is necessary. Regarding enquiry report, that has been acted upon in the Court and the scope of prejudice is now washed away, when nothing has been shown that it was a false report except to contend that it is an ex parte report. The Court has read the evidence of the labour Union itself and found that it is Haider Zaman against whom allegations are established. He himself by his own conduct did not respond to the participation and therefore requirements of justice are fully satisfied. No further remand will be justice-able to keep the matter unnecessarily prolonged in order to see the end of the problem.
11. In the result, the application has no merit and is dismissed. Reference is made to 1976 PLC 392; 1981 PLC 825; 1982 PLC 437; 1984 PLC 576; 1984 PLC 1639 and 1985 PLC 280.