DECISION This is an appeal filed by Messrs Welcome Pakistan Ltd., Karachi, against an impugned order, dated 30-9-1985, passed by the Sind Labour Court No. II, Karachi, who had allowed the grievance petition of the respondent, Abdul Rashid, filed by him under section 25-A, I.R.O. 2969 and directed his re-instatement in service with full back benefits.
2. The brief facts of the case are that the respondent was a permanent workman in the appellant establishment since 24-3-1976, and according to him he had unblemished service record. On 17-5- 1984, he received a charge-sheet, dated 15-5-1984, alleging therein that on 13-5-1984 at 3-15 p.m.; when he was working in the stores, he approached to Mr. Gagan Hameed, Manager, non-Sterile Production and asked him to sign the gatepass for short leave and when Mr. Gagan advised him to get the same signed from his immediate superior, he insisted upon immediate signature and used abusive language and thereafter, he left the stores premises and came back after five minutes and then threw the gatepass on Mr. Gagan Hameed and again abused him. Thereupon, Mr. Gagan Hameed advised him to behave properly but he lost temper and threw the Stappling machine on him which hurt his hand and damaged his watch and thereafter, he tried to attack him physically when he was stopped by others, thus, he committed misconduct within the meaning of Standing Order 15(3) (h) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. That, the respondent, Abdul Rashid had replied to this charge-sheet satisfactorily submitting therein that on 13-5-1984, during duty hours, he received an urgent information that his grandmother was seriously ill, so, he went to Mr. Gagan Hameed, Manager non-Sterile Production to obtain short leave on gatepass, but, Mr. Gagan Hameed, instead of sympathetically considering the request, adopted an angry and revengeful attitude and directed him to come via his Departmental Head and that on his insistent request, Mr. Gagan threw away the Gate Pass Book and that, in the meantime on 16-5-1984, the respondent's grandmother had expired and when he came back to join his duty on 17-5-1984, he was served a charge-sheet, dated 15-5-1984, and all the allegations of misconduct were denied by him. As, this reply to the charge-sheet was found unsatisfactory, therefore, the appellants establishment had ordered for holding of a domestic enquiry and inconsequence of this domestic enquiry, the Enquiry Officer had found the respondent guilty of the alleged misconduct of riotous and disorderly behaviour during working hours and consequently, the respondent was dismissed from service vide order, dated 3-9-1984. Then, the respondent submitted a grievance notice, dated 27-9-1984, which was rejected by the appellants establishment on 11-10-1984, hence, his grievance petition, before the learned Labour Court, under section 25-A, I.R.O. 1969.
3. The respondent filed his affidavit-in-evidence and he was cross-examined by the appellants establishment. The appellants establishment filed the affidavit-in-evidence of Enquiry Officer, S.M.
Hasnain and also examined Major Mansoor Bajwa, Manager Stores and both were duly cross- examined by the respondent. Thereafter, the learned Labour Court had allowed the grievance petition of the respondent directing his re-instatement in service with full back benefits, hence, this appeal.
4. I have heard Mr. Mahmood A. Ghani, the learned Representative for the appellants establishment and Mr. Ali Amjad, the learned counsel, on behalf of the respondent, and have also carefully perused the record and proceedings of the case. It was contended by Mr. Mahmood A. Ghani, the learned Representative for the appellant establishment that the learned Labour Court has erred in coming to the conclusion that the charge-sheet issued to the respondent was false and baseless merely on the ground that the original copy of the complaint made by Mr. Gagan Hameed was not produced by the management, either during the course of the domestic enquiry, or, alongwith the reply statement before the learned Labour Court, and that the law provides that no order of dismissal shall be made unless a workman concerned is informed in writing of the alleged misconduct, that the respondent should have requested the management for supply of copy of the complaint or otherwise had requested the management to clarify the charge before submitting his reply to the charge-sheet, that there is no provisions of the Evidence Act do not strictly apply to the domestic enquiry, that it was not necessary that endorsement should be made on the text of the complaint by the authority to whom it was addressed, that nowhere the provisions of the Standing Orders provide that the copy of the complaint should be supplied to the worker before issuance of show-cause notice or that all the show-cause notices should necessarily be based -on written complaints. It was further pleaded by Mr. Mahmood A. Ghani that evidentiary value of the witnesses cannot be set aside on the ground that the complainant did not specifically mention their names and that the technicalities of the Criminal and or Civil Procedure Code cannot be imported in the domestic enquiry. On the other hand, Mr. Ali Amjad, the learned Advocate on behalf of the respondent had argued that the entire proceedings against the respondent became suspicious and doubtful and that a false and baseless charge-sheet was issued to the respondent as the original complaint of Mr. Gagan Hameed was not produced by the appellant establishment, at any stage and that the photostat copy of it does not bear any endorsement of the authority to whom it was addressed and this fact lands support to the possibility that as a matter of fact no complaint ever existed and a concocted and false photostat copy of the same had been produced by the appellant establishment alongwith its reply statement so as to justify their action of issuing a baseless charge-sheet. It is an admitted position that the charge-sheet was issued against the respondent on the basis of a written complaint made by Mr. Gagan Hameed. It ought to have been brought on the record during the domestic enquiry. There is nothing on recorG to show as to where the original report was and why it was not brought on record in the enquiry proceedings. Mere production of a photostat copy, particularly at the stage of filing the Reply Statement before the learned Labour Court, even without a certificate that it is a compared true copy of the original and without production of its origin: for inspection and perusal of the learned Labour Court, will not be sufficient to hold that this particular document ever existed or it has A been lawfully brought on record, I, therefore, hold that the learned Labour Court has rightly held that the appellant establishment have failed to establish the existence of a valid and proper complaint against the respondent which was the basis of the issuance of the charge-sheet, dated 15-5-184, and thus, on the basis of such a doubtful and suspicious charge- sheet, an enquiry, cannot be a valid and proper enquiry and thereby the consequential dismissal of the respondent from his service cannot be sustained. The Authorities relied upon by Mr. Mahmood Ghani, reported in 1979 PLC 5; 1980 PLC 777; 1980 PLC 369; 1983 PLC 143; 1960 PLC 530 and 1980 PLC 178 are not applicable to the facts and circumstances of the present case.
5. Lastly, it was contended by Mr. Mahmood A. Ghani, the learned Representative for the appellant establishment that the learned Labour Court has also erred in attaching importance of the object that was thrown by the respondent at the person of Mr. Gagan Hameed as the evidence was led and came on record that the respondent had thrown some articles at Mr. Gagan Hameed with a view to injure him in the presence of the witnesses, whose names he did mention in his cross--- examination and that the evidence of the prosecution witnesses were not reliable or creditable merely on the ground that the witnesses do not belong to Stores Department as the reliability and creditability of evidence is not to be determined on mere surmises, conjectures and speculative considerations, but their reliability is to be tested on the basis of cross-examination which admittedly was done in the present case and their statements could not be disturbed; and that there was no provocation on the part of the management/ Manager Production, who was well within his right to ask the respondent to obtain the signature of his immediate superior, Muhammad Ashraf, before applying for short leave and even otherwise, refusal of Mr. Gagan Hameed to sign the signature was not of such grave nature which warranted the respondent to take the law in his hand by resorting disorderly behaviour and use of highly foul and abusive language. On the other hand, Mr. Ali Amjad, the learned Advocate on behalf of the respondent had argued that the appellant establishment have failed to adduce any reliable and creditable evidence to establish the charge of misconduct levelled against him. Mr. Ali Amjad has referred the statement of Mr. Gagan Hameed before the Enquiry Officer and submitted that he has not mentioned the name of any person to have witnessed the alleged riotous and disorderly behaviour of the respondent nor he had stated that at the time of the incident any other person or persons were present, therefore, in these circumstances, the other witnesses examined by the establishment would be false witnesses and their evidence has no value and credit ability. He further submitted that even if it be presumed that Muhammad Karim, witness No.2 was present at the time of incident, then, his evidence is at variance and that from perusal of the entire examination-in-chief of Muhammad Karim, no man of reasonable prudence and understanding would come to the conclusion that the respondent had committed riotous and disorderly behaviour or that he used abusive language against Mr. Gagan Hameed and that there is disorderly and contradiction in the statements of the witnesses as Mr. Gagan Hameed has stated that stappling machine was thrown upon him, whereas Muhammad Krim has stated that first he threw the Gate Pass Book and thereafter he hit him with the Table Calender. Mr. Ali Amjad further submitted that the complainant, Mr. Gagan Hameed in his cross---examination made a statement that Muhammad Karim was sitting alongwith him and when the respondent came subsequently after five minutes, then, Mujeeb and Hameed were also present. Admittedly, Mr. Gagan Hameed did not mention the name of any witness in his examination-in-chief and it was in his cross-examination that he had mentioned the names of certain witnesses, which evidence, cannot be used to the disadvantage of the respondent. The appellant establishment have failed to establish the presence of the witnesses at the time of alleged incident and also the reliability and creditability of their evidence. There is an admission by Muhammad Karim, the prosecution witness before the Enquiry Officer that it was Mr. Gagan Hameed who had not only refused to sign the gate pass when the respondent wanted a short leave to visit his ailing maternal grandmother, but, he had also thrown the same down and that prior to this, the respondent had not been assigned to have acted in any manner which could be said to be riotous and disorderly behaviour and that if any act subversive of discipline had been committed by the respondent, then, the same could not be said to be voluntary, intentional and deliberate, but, would be on account of provocation and shock given to the respondent by the action of Mr. Gagan Hameed in throwing down the Gate Pass Book. I, therefore, hold that the learned Labour Court has rightly held that the appellant establishment had failed to adduce reliable, creditable and satisfactory evidence to connect the respondent with the misconduct alleged in the above type of charge sheet, dated 15-5-1984 and the findings of the Enquiry Officer holding him guilty of such false and connected misconduct.
Thereafter, the consequential dismissal from service of the respondent is perfectly liable to be set aside.
6. For the reasons stated by me above, I see no reasons to interfere with the impugned order. I would maintain it and dismiss this appeal. The respondent is directed to be reinstated in service forthwith with) full back benefits. The amount of back benefits, deposited by the appellants establishment in this Tribunal, be paid to the respondent, Abdul Rashid.