1. Admitted facts giving rise to this petition under section 25-A of I.R.O. 1969 are that the applicant was employed as Helper. He was charge sheeted, on 7-2-1985 which was duly replied by him, on 9- 2-1985. Enquiry was then conducted and a show-cause notice, dated 3-3-1985 was then issued to the applicant and which was also replied by him, on 6-3-1985. However, on the same date, the applicant was dismissed from service vide dismissal letter Annexure A/C. Grievance notice, dated 13-3-1985 was then served by the applicant, and, finally, the present petition has been instituted for his reinstatement with back benefits. The grievance of the applicant is that in fact he was manhandled by the complainant and which fact has duly been established by the independent witnesses as also the Enquiry Officer himself. The plea as advanced by the respondent is that the applicant took law in his own hand and attacked the complainant and so he was guilty of serious misconduct.
2. After evidence, I have heard Mr. M. Bashir Awan, for the applicant, and Mr. R.M. Mushtaq, counsel for the respondent. I have minutely scrutinized the evidence on record.
3. What I have to see in this case is whether the evidence brought on record proved any charge against the applicant and whether he can be considered guilty of a serious misconduct which may lead to his dismissal. Mr. Bashir submitted that according to the material on record it is evident that it was the complainant Majeed who had assaulted the applicant and if at all the applicant reacted, it was all in his self-defence. His submission is that the applicant was given two cakes of soap, one for himself and one for the colleague and the same were on his cycle during working hours.
4. However, as per the evidence before the Enquiry Officer as also in this Court, this complainant Majeed lifted the same from the cycle of the applicant and when on coming to know about it he demanded the same from Majeed, he not only refused to return but also abused as also attempted to inflict knife injuries to the applicant. Naturally, if at all the applicant is believed to have lifted an iron rod, this would certainly be an act in his self-defence. Mr. Bashir has drawn my attention to the findings of the Enquiry Officer whereby he had concluded that this Majeed had also attacked on the applicant and his conduct was not at all fair. However, no action whatsoever was taken against Majeed and only applicant was made escape goat. He also submitted that the conduct of the Enquiry Officer was also objectionable in that he did not permit the applicant to examine his defence witnesses though he had specifically named such witnesses. Moreover, this Enquiry Officer himself cross-examined the witnesses and the applicant was never allowed any opportunity to cross-examine any of the witnesses.
5. Mr. Mushtaq, on the other hand, submits that as deposed to by the Enquiry Officer he did not cross- examine the witnesses but it was one Mushtaq, legal assistant of the applicant, who had cross- examined the witnesses on behalf of the applicant. No defence witness except Aurang Sher was produced by the applicant and so it does not lie in the mouth of the applicant to allege that he was neither permitted to cross-examine the witnesses nor how precluded from producing any defence.
6. On merits, Mr. Mushtaq submits that not only the applicant had picked up quarrel with Majeed but also inflicted injuries on him and which fact has been fully established. The defence witnesses examined by the applicant in this Court are, according to Mr. Mushtaq, not believable and reliable in that they do not corroborate the version of the applicant as also the incident itself.
7. The charge against the applicant as per A/1(B) shows that there was a dispute in regard to some soap. According, to the complaint, dated 6-2-1985, both complainant and applicant were claiming the soap. The allegation of the complainant is that the applicant first used harsh words and then attacked him with an iron rod. One Akhtar Hussain then reported this matter to Incharge Muhammad Hussain in his room and who then arrived at the spot and then saved the complainant. Akhtar Hussain has been examined in this Court while Muhammad Hussain was tendered as prosecution witness before the Enquiry Officer. I would accordingly, first refer to the evidence of this Muhammad Hussain. This Muhammad Hussain confirms that he was informed of this incident by Akhtar Hussain and in this way he has admitted the presence of not only Akhtar Hussain but also the presence of Kishwar, Umer, Aurang Sher, Manzoor and Irshad. These persons being present at the seen of occurrence must have witnessed the incident themselves. This Muhammad Hussain stated that when he went to the place of incident, he saw Majeed and Akram abusing each other. Though he had seen iron rod in the hand of Akram but none of the two had sustained any injury. The matter was then settled and the dispute was over. He could not, therefore, say who was aggressor and what was the cause of fight. Since it was matter of petty nature, he did not prefer to make any report but only entered in the relevant register that the dispute between the two had been settled. Subsequently Majeed made a report bye-passing his Incharge Muhammad Hussain and on coming to know this report, this Muhammad Hussain also submitted his report.
8. From his statement it is clear that Majeed did not sustain any injury and he was also unable to say who was the aggressor. His evidence is thus of no help to resolve this dispute.
9. The persons named by Muhammad Hussain, though were eye-witnesses, were not examined on behalf of the prosecution to establish the guilt of the applicant. However, these persons were notified as defence witnesses but the Enquiry Officer examined only Aurang Sher and who has fully supported the version of the complainant. Akhtar and Kishwar have also been examined in this Court and they fully corroborated the plea and version of the applicant. I do not agree with Mr. Mushtaq, that the presence of these witnesses was doubtful and that they are un-reliable. I would repeat here that the presence of these witnesses has been established by Incharge Muhammad Hussain himself and in fact these were the only persons who had witnessed the occurrence. The complainant did not examine any person in support of his allegation and so his uncorroborated testimony would be of no legal consequence particularly when it has been falsified by at least three independent witnesses of the occurrence. The conduct of this complainant Majeed has also been proved before the Enquiry Officer that he was in the habit of picking up quarrels with every one. The Enquiry Officer has also held him guilty of creating trouble. The findings of the Enquiry Officer are as under: - ---From the above statement .The Enquiry Officer has arrived on conclusion that in the night between 6th and 7th February, 1985; instead of handing over 8 soaps for the 8 workers of the packing shift, the Shift Incharge handed over only 7 soaps. The accused took 2 soaps, one for himself and the other for his A mate Mr. Sarfaraz Khan who was on the weekly rest. Mr. Abdull Majeed Azhar took one of the two soaps on which the accused objected and tried to take the soap back by force. Mr. Abdul Majeed Azhar abused the accused and tried to slap him. The accused also abused him and took an iron rod and hit Mr Abdul Majeed Azhar.--- The proceedings before the Enquiry Officer clearly prove that the applicant was never afforded any opportunity to cross-examine any witness or to lead any defence. The plea of Enquiry Officer that the witnesses were cross-examined by Mr. Mushtaq on behalf of applicant is also not supported by the document inasmuch as it has no where been mentioned by the Enquiry Officer that Mushtaq cross-examined the witnesses on behalf of the applicant. Moreover, under the law the co-workers are only to watch the proceedings and could assist the worker and not to play the role of an Advocate.