1. The applicant was employed as Jobber and was covered by the provisions of Standing Orders, Ordinance of 1968. The workers formed a trade union in October 1984 under the name of Modern Textile Mills Employees Union. After its registration, it applied for referendum and finally it emerged as CBA but this was never approved by the management. It accordingly adopted ante labour tactics and started harassing the active members of the union in different ways. Finally, it terminated about 400 workers in March 1985 on the false and ficticious ground. Due to the protest of the workers and the intervention of the Authorities the management had to re-start the Weaving Department on 2-6-1985 but it did not restore the status of permanent workman to the terminated employees and forced them to accept re-employment in the first instance and thereafter they should work under the contractor and on their refusal to do so they were falsely implicated in false cases. With this end in view, the management charge sheeted the applicant on 16-6-1985 containing false and ficticious allegations. It was duly replied on 27-6-1985. Thereafter, most unfair enquiry was conducted without affording opportunity of defence to the applicant. The written complaints made by the applicant to this effect were also ignored and finally the applicant was dismissed from service by order dated 18-7-1985. A grievance notice was then sent on 18-8-1985 and it having been rejected on 31-8-1985, he filed the present petition for his re-instatement with back benefits.
2. The respondent filed its detailed reply statement denying all the allegations against it. It pleaded that the office-bearers and members of the new union started coersive activities and also disallowed the contractors labour working in various departments. Due to this act of the workers, un-mended products accumulated and so the respondent had no option but to close the Khata and to terminate the workers. However, under an agreement dated 28-4-1985 the Khata was re- started from 2-6-1985 and the terminated workers including the applicant were re-employed and which re-employment was duly accepted. Due to his misconduct, he was charge-sheeted and a fair and impartial enquiry was conducted. His misconduct having been proved, he was rightly removed from service. It denied that the applicant was not permitted to lead defence.
3. The applicant examined himself alone in support of his case, while the respondent examined its present General Manager, Sarwaruzaman, Enquiry Officer, Abdul Rasheed Awan and Ex-General Manager, Mr. Sagheer Ahmed. After evidence I have heard Mr. Muhammad Bashir Awan, Advocate for the Applicant and Mr. Masood Ahmed Shaikh, Representative for the Respondents I have also examined the material on record.
4. Mr. Awan has taken me through the various assertions made in the pleadings in regard to conduct of respondent prior to the impugned charge-sheet and urged that the respondent has victimized the applicant because of his union activities. Without going into the details of such allegations I would confine to refer my detailed order passed in Application No.76/85 wherein I have considered all these Allegations and have held that the entire action of the management was illegal and mala fide. These assertions etc. Are therefore not to be re-examined here.
5. The two witnesses M/s Sarwaruzzaman and Sagheer Ahmed, examined by the respondent to prove the contents of reply statement, have shown their complete ignorance about the correctness or otherwise of the contents of this reply statement. Mr. Sarwaruzzaman was not even in employment during the days when the applicant was proceeded against and so his evidence is only hearsay.
6. He also did not sign and verify the reply statement and so his evidence is of no legal value. Mr. Sagheer, though is said to have signed the written statement but he could not verify its contents on the plea that he always signed prepared documents under the directions of the management. He has not been declared hostile and so his version has to be accepted. The written statement is therefore to be excluded from consideration. This being the position, the documents available with the reply statement, and are disputed by the applicant, have also to be excluded from consideration.
7. No doubt the applicant has signed the statements of witnesses but such signature were said to have been obtained on prepared documents and by force. The applicant is said to have made complaints against this conduct of the Enquiry Officer and this specific assertion of the applicant in his cross-examination as well, has no where been disputed on behalf of the respondent. This assertion of the applicant also appears to be convincing when I find that the proceedings and the report were not recorded by the Enquiry Officer in his own hand. The second grievance of the applicant is that he was not permitted to adduce defence. According to him, the proceedings were fixed on 15-7-1985 for defence but when the applicant took his witnesses, he was not permitted to examine them. He accordingly sent this application to the management on the same date by registered post A/D. This application was received by the management on 16-7-1985 though copy of this very application was served on the Directorate of Labour on the following day i.e. 14-7-1985.
8. It has been the accusation of the applicant that the respondent always avoid to receive letters from workers by influencing the Postman and I have proved in the other case of Mubarak that the management has its full influence on the Illaqa Postman. This allegation also appears to be genuine in the instant case in view of the fact that the letter sent to the management is served after 3 days while the same letter is served on the Government Department on the following day. In any case, despite the receipt of these specific complaints of the applicant, the management did not afford him any opportunity of leading defence. This assertion that it intimated its reply by letter dated 16-7-1985 has not been established and the service of this letter would also appears to have been obtained under its influence on the Postman.
9. Mr. Masood has vehemently urged that the applicant had himself stated before the Enquiry Officer as per R/10 that he would not like to lead any defence and so the application dated 13-7-1985 is not to be considered being an afterthought. Even if I accept the contention of Mr. Masood, still natural justice required that the applicant should have been given an opportunity of leading defence.
10. However, after careful scrutiny of Exh.R/10 I am of the firm opinion that the words:- were subsequently added at the end of the statement of the applicant. The ink used and the manner in which this sentence has been recorded clearly indicate that it is a subsequently added sentence. Accordingly, I would have no hesitation to hold that the Enquiry Officer never acted honestly and fabricated the documents against the applicant under the dictates of the management. The applicant has thus been deprived of his lawful right of defence and so the entire proceedings are to be treated as void.
11. As stated above, the Enquiry Officer did not record the proceedings as also the report in his own hand. He is an educated person and so there was no justification for him to dictate these proceedings to some one else. The other documents on record if compared with the proceedings would show that all in one hand. It further show that in fact, the management had prepared the entire proceedings and the applicant was only directed to attest the same. The Enquiry Officer was also to sign the prepared documents and s~ such documents cannot be used against the applicant.
12. On merits, as well I cannot maintain the impugned order. The charge sheet was said to have been initiated on the report of Assistant Security Officer but such report was 'never produced either before the Enquiry Officer or before this Court. Witness Mr. Sarwaruzzaman in the beginning of his cross-examination stated after referring to the record that report of this incident was made by the Assistant Security Officer but at a later stage he deposed that no such report was available on record. He further stated that no written report is ever made in regard to any incident. The Enquiry Officer, however, admitted the production of such report before him and so belied Mr. Sarwaruzzaman. It means that either the report of the Assistant Security Officer was suppressed considering it against the management or the management took cognizance of the incident suo motu without any report from any side. In both the cases inference would have to be drawn against the management. Mr. Sarwaruzzaman could not say when letter dated 16-7-1985 (R/5) was served on the respondent. R/6 is the A/D slip of this letter and shows the service on the applicant. It appears to have the signatures of applicant though admittedly he is an illiterate person and only puts his thumb-impression and never signs. This being the admitted position, the A/D slip is a procured and forged document. Particularly in view of what has been discussed hereinabove.
13. The allegations against the applicant are of abusing the management, stopping the Mill Officers from entering into the mill and to take control of the mill on 11-6-1985, 12-6-1985 and 13-6-1985. In all these three dates only Bashir Ahmed, Riasat Ali and Wali Muhammad were said to be present to witness this incident. This further shows that in the entire mill only these three persons were posted round the clock and there was none else to witness this incident. This position is hardly believable. It is strange that a mill having more than 1600 employees cannot find even few persons as witnesses of such a serious incident. Not only this but I find that neither any such Officer who was assaulted or humiliated was brought in evidence nor even their names could be disclosed at any stage till date.
14. Accordingly, it does not appeal to senses that such a serious mishap, and which continued for 3 days, could not be witnessed by any one except by two chowkidars and one Assistant Security Officer. The whole story of the management is thus a cocked one in order to get rid of the active members of a lawful registered trade union. If the evidence of the so-called witnesses is also scrutinized, one would find the same as wholly false and unbelievable. Even the allegations levelled by the witnesses do not constitute any misconduct as mere abuses or raising slogans after the duty hours and outside the department would not be deemed to be misconduct under the provisions of Standing Orders, Ordinance 1968.
15. A.E./954/Lb.S