1. Facts giving rise to this petition in nut-shell are that the applicant was employed as Fitter in the capacity of a permanent workman and so was regulated by the provisions of Standing Orders Ordinance of 1968. He alongwith the others workers formed a trade union under the name "Modern Textile Mills Employees Union" and he was elected as its President. In its registration, referendum took place and thus newly formed union emerged as CBA. The management did not appear to be happy with this union and so it started harassing the workers in one way or the other and, finally, lot of workers were terminated on false grounds. The said termination was considered by the workers as dismissal and so they agitated. On 2-6-1985 the Weaving Department which was earlier closed for the termination of the workers was re-opened and the terminated workers were to be appointed. However, the management considered the appointment as fresh employment and so the applicant sent grievance notice on 2-6-1985 and then filed a petition No. 76/85 .In this Court.
2. It appears that soon after the re-start of the Weaving Khata, the management served charge- sheet dated 13-6-1985 on 19-6-1985 on the applicant with serious allegations. It was duly replied and then the management directed enquiry which was initially fixed on 7-7-1985. This date was postponed and then it was fixed on 10-7-1985. According to the applicant, the Enquiry Officer refused to redress the grievance of the applicant and also to receive his protest in writing. An application to this effect was offered to the General Manager and on his refusal as well, it was sent by registered post A / D on 11-7-1985. No enquiry was then conducted and finally he was dismissed from service by letter dated 18-7-1985 and so grievance notice was sent on 20-8-1985. This petition has now been filed considering the dismissal as illegal and un-warranted, for his re-instatement with back benefits.
3. The respondent in its detailed reply statement made various assertions in regard to the past conduct of the applicant and the members of his union and tried to justify its impugned action.
4. According to it, the Weaving Khata was closed because of the accumulation of cloth and so the- workers of Weaving Khata were terminated. An agreement dated 28-4-1985 was then executed and so in persuance thereof the retrenched workers were re-employed with effect from 2-6-1985.
5. However, the applicant continued his illegal activities and on the basis of complaints against him he was charge-sheeted. Enquiry was then ordered but he refused to participate therein and so ex parte proceedings were made against him. Finding the charge as established against him, he was dismissed from service in accordance with law.
6. It has been contended by Mr. Bashir that the impugned dismissal order was in fact passed under a settled policy of the management to crush the union activities and to get rid of such workers who were responsible for such union activities. In the first place it closed the Weaving Department and terminated the applicant and others on a false and fictitious ground and with a mala fide intention and then resorted to the present action. According to Mr. Bashir, the management was coupelled to re-start the Weaving Khata and take back all the workers and so it had to re-open the department on 2-6-1985. However, since it was against its wishes and intentions, it cooked up false case against the present applicant. As to the impugned order, Mr. Bashir submits that the enquiry was fixed on 7-7-1985 knowing it fully well that on this date conciliation proceedings in regard to the charter of demand of the CBA, was fixed before Labour Directorate. The applicant accordingly sought adjournment and then it was fixed on 10-7-1985. No evidence was being recorded by the Enquiry Officer and he insisted only for the statement of the applicant. Since the applicant requested to first record the statement of complainant and his witnesses, the Enquiry Officer refused to acceed to this legal request and sent out the applicant. No further date was fixed nor any enquiry was ever conducted and so the impugned order is wholly without jurisdiction. Learned counsel submits that the applicant complained to this effect in person and then sent letter dated 11-7-1985 which was duly received by the management on 15-7-1985 but with no result. Mr. Bashir, submits that the management is also in league with the Postal Authorities and so it avoided to receive letter dated 11-7-1985 till 15-7-1985 whereas the management's letter dated 10-7-1985 and another letter dated 16-7-1985 were said to have been delivered 'to the applicant on the next day.
7. Though the receipt of these letters have specifically been denied by the applicant but its attempt to serve that on the second day of the despatch and non-service of the letter of the applicant for five days clearly indicate that the management and the Postman were hand-in-gloves with each other. In any case, the management having failed to prove the services of these two letters by examining the Postman the same have no legal value. Mr. Bashir, further submits that even the letter dated 10-7-1985 R/6 if read in the light of the evidence of the Enquiry Officer in this Court, would make it vividly clear that his letter was fabricated and that no attempt was made to form the applicant about further date viz; 14-7-1985. According to him, it has also been established that the whole enquiry proceedings were prepared by some one else and the Enquiry officer simply signed the same and this is sufficient to hold the entire action of the management as mala fide in order to crush the union. Lastly, he submitted that the contents of the written statement have not been proved as both the General Managers have disowned the same or have showed their ignorance. The evidence of Mr. Rameez is of no legal value as it had nothing to do with the impugned order or the charges which formed the basis of the impugned order.
8. Mr. Masood, on the other hand, submits that the applicant alongwith his colleagues had been acting throughout in such a way that the management had suffered a lot. Due to their activities lot of cloth was accumulated and so the Weaving Department had to be closed. Even after the re- start of the mill the applicant incited the workers of causing damage to the property of the respondent. They also physically assaulted and abused the personnel of the management. They also gheraoed the mill and so the Police had to intervene in the affairs. According to him, the applicant himself refused to participate in the enquiry and so he was duly informed about the date of the enquiry as per the registered letter and since he did not appear, ex parte proceedings were legally made. The charge was proved against him and so his dismissal cannot be questioned in these proceedings. He submits that letters dated 10-7-1985 and 16-7-1985 were correctly addressed and if the same were delivered by the Postman, the management is absolved of its liability and if the applicant denies the receipt, it was for him to have examined the Postman or to have led any evidence in rebuttal. Since no evidence has been adduced by the applicant in rebuttal, these letters would be deemed to have been duly served. The complaint on which the charge-sheet was made was also not to be produced either before the Enquiry Officer or before this Court and since the applicant did not demand the copy thereof, the management was not obliged to suo motu issue the same. As to the record said to have been produced before the Enquiry Officer. Mr. Masood submits that it included charge-sheet etc. And which has already been produced alongwith the written statement and if it was not attached to the enquiry proceedings, it does not vitiate the proceedings or doubt the integrity of the Enquiry Officer.
9. I have minutely scrutinized the entire material on record. In regard to the assertions of the parties hereto as to the incident prior to 2-6-1985 I have already given my detailed findings in petition No.76 of 1985 and so I do not consider it expedient to examine these things here again. However, I would record here that if the workers were to be re-employed as per agreement dated 28-4-1985 and the applicant was also so re-employed on 2-6-1985 by his consent, there was no occasion for him to have issued grievance notice on the same date. According to the management, the appointment letter was said to have been issued to the applicant on 5-6-1985 i.e. After the service of the grievance notice on the management. Evidence on record also shows that one Mr. Jan Muhammad who is said to have represented the Civil Administration in regard to the complaints of the management relied upon in this case, has admittedly been employed by the respondent soon after his retirement and so applicant's assertion that the management had harassed and intimidated the workers through this Mr. Jan Muhammad and finally he was obliged by employing him in its establishment, would carry sufficient weight. In any case, I have already given my findings in petition No. 76 of 1985 that the entire action of the management was mala fide and was initiated in order to crush the union activities in its establishment.
10. I would now advert to the impugned dismissal order. The charge-sheet was said to have been issued for assaulting the person of the contractor and other officials of the respondent as also gheraoeing the mill. The complaint on which the proceedings were initiated was said to have been produced before the Enquiry but such complaint is not available on record. I do not agree with Mr. Masood that the production of such complaint in this Court was not necessary. If any proceedings were initiated on a particular document and the same was also tendered in evidence against the applicant before the Enquiry Officer, it became part of the enquiry proceedings and if it has not been produced in this Court, legal presumption would be that this document was never with the management and was never produced before the Enquiry Officer or it is against the management.
11. This being the position, further presumption which is to be raised would be that no complaint was ever made against the applicant.
12. According to the management, on 10-7-1985 the enquiry proceedings were adjourned to 14-7-1985 and the applicant was duly intimated at that moment. Since he refused to receive the notice for 14- 7-1985 the same was sent by registered post and was duly served on him on 11-7-1985. This letter dated 10-7-1985 has been produced as R/6. According to it was issued by the Manager. This means that it was prepared after the adjournment of the proceedings. However, there is nothing on record to show that the Enquiry Officer intimated anything about these proceedings to the General Manager on that date. The Enquiry Officer has admitted that he did not make any written report but orally intimated the General Manager. In any case, the proceedings on 10-7-1985 were said to have been taken up at 10 p. m. And soon thereafter the applicant left the enquiry place. This R/6 was not with the Enquiry Officer, at that moment and so there was no occasion for him to offer it to the applicant at that moment. As per the Enquiry Officer the management gave this letter to him at 11- 30 a.m. To intimate the same to the applicant and so he intimated the applicant accordingly but the applicant went away. The note appended to this letter R/6 however shows that the applicant was called on 10-7-1985 at 3 p.m. And when it was offered to him, he refused to receive the same. In view of this evidence, it does not lie in the mouth of the respondent to allege that the applicant was actually informed about the date of 12-7-1985 and he refused to receive any letter. The document itself belied the Enquiry Officer and the letter belied the management. As to the service of this letter by post, suffice it to say that it has not been proved. The applicant has denied his signatures on A/D slip R/8. I have also compared it with the admitted signatures of the applicant and I find that both are absolutely different with each other in particulars when the same is also compared with .The signatures on R/11. It is the plea of the applicant that the management has obtained false reports from the Illaqa Postman because of its influence. This allegation cannot be ruled out in view of the admitted fact that the letter sent by the applicant on 11-7-1985 from the same Post Office was delivered to the respondent on 15-7-1985 whereas the letters sent by the respondent on 10-7-1985 after 3 p.m. And 16-7-1985, were delivered to the applicant on the following day. The signatures as referred to above if examined in this background would further show that the management deliberately avoided to keep the applicant informed and succeeded in obtaining a false acknowledgement through the concerned Postman. In these circumstances it was obligatory on the part of the management to have examined the Postman and he should have been subjected to the cross-examination by the applicant. I accordingly, hold that letters dated 10-7-1985 and 16- 7-1985 were never served on the applicant.
13. Since the applicant was never intimated about 4-7-1985 and since no evidence was recorded by the Enquiry Officer in presence of the applicant, the whole proceedings against him are void ab initio and so they have no legal effect. I may also mention here that even if the management had sent any letter on 10-7-1985 for 14-7-1985; natural justice required to have given an opportunity to the applicant after the receipt of applicant's letter dated 11-7-1985, but since the applicant was not given any opportunity even on the basis of serious allegations against him on 11-7-1985 the mala fide of the management is established beyond doubt.
14. Reverting to the proceedings itself admittedly these proceedings were not recorded by the Enquiry Officer in his own hand. The enquiry report was also not written by the Enquiry Officer in his own hand. This Enquiry Officer is an educated person and can read and write Urdu very well. The proceedings and report are not typed one and so there was no justification whatsoever to dictate all these documents by the Enquiry Officer to a third person. Name of such person who acted on dictation has also not been divulged. The various letters placed on record also appear to be in the same hand as that of the enquiry proceedings and report. This being the factual position, there is sufficient substance in the allegation of the applicant that the proceedings and report were in fact prepared by the management and the Enquiry Officer only signed the same. This Enquiry Officer was also appointed on 26-6-1985 and perhaps his duty was only to oblige his Masters.
15. As earlier stated, the General Managers and the Manager examined on behalf of the respondent have not proved the assertions made by the respondent in these proceedings inasmuch as they showed their complete ignorance about the factual position in regard to the dismissal etc. Mr. Sagheer has even gone to the extent of saying that the impugned action was taken only to crush the union. The assertions made by all these three witnesses have nowhere been disputed nor these persons were declared hostile. Accordingly, even through the mouth of these witnesses it has been proved that the management had resorted to this illegal action only with a view to get rid of union activities in its establishment. Its action cannot therefore be maintained.
16. The dismissal order was not also passed by Mr. Sagheer who was only competent in this behalf and whose assertion has not been denied.
17. A.E./957/Lb.S