Mr. Muhammad Zaman was employed with the respondent as a permanent workman, in the position as Time Punch Operator.
2. On 29-10-1984, he applied for leave on the ground of sickness. When he recovered from sickness, he was not allowed by his employer to resume the duty. On 20-11-1984, when he finally attended, he was not allowed to enter into the Mills premises and informed by Jamadar Azeez Ahmed that Labour Officer have issued the directions to refuse entry of the applicant in the Mills. He was gate stopped which amount to dismissal. Applicant protested against the dismissal. No action was taken. He went before the Labour Court . He was re-instated but with the directions to conduct enquiry against the applicant. Applicant reported for duty on 12-2-1986. He was not taken on duty and was given the suspension letter for four days and extended his suspension period. Applicant requested the respondent on 22-2-1986, to fix the enquiry before the Director of Labour or in the Labour Court . Hg- was not provided the copy of the proceedings and also the enquiry proceeded in perverse manner.
3. He was also given the short time for personal hearing. He told the security staff to allow him to come in the Mills for personal hearing before the Deputy Mills Manager. He was not allowed. On 8th of March, 19&6, he was dismissed from service.
4. He has shown the grievance, that at the relevant time, the registration of Union was pending and he was the President.
5. Respondent has filed the written statement and contended that applicant actively participated in the enquiry. He was given the assistance of the co-worker Mr. Rahim Khan. Respondent had supplied the enquiry, report and provided the personal hearing which applicant declined.
Respondent was not aware of the registration of the Union for want of intimation.
6. Following are the points for determination:-
(i) Did Mr. Haider Zaman participate in the enquiry, in pursuance of the Court's directions?
(ii) Was he sick on 29-10-1984 and unable to attend duty?
(i.e) Did the employer cause obstruction to the applicant in the-enquiry proceedings?
(iv) Whether Mr. Haider Zaman, cause obstruction in the proceedings of enquiry, by failing to respond to the Court directions?
(v) Was he dismissed due to victimization, because he was the President of the newly formed Union What is the effect of section 8(A) of the I.R.O.?
REASONS
7. Court had given limited directions to the management, to direct enquiry, in view of certain procedural departure, from the normal rules of enquiry, as to give full confidence to the employee that justice is done to him. It was ex parte enquiry of which these were the fresh directions. But what the Court has noticed that spirit in which the fresh enquiry was directed, both parties to the dispute, in issue, instead of conciliatory attitude, of examining the case on judicial merits, in the domestic forum, has entered into confrontation and confusion, for the management not only exceeded the jurisdiction, to suspend him for which there was no direction; granted to them after the judicial cause, was in the Court. Similarly, the insubordinate attitude of employee to ask the employer that the enquiry should be conducted by the employer in the Court or in `the labour department, was neither contemplated by law, nor there was any jurisdiction, unless the Court otherwise directed. In other words there was making allegations and counter allegation, instead of directing enquiry, to a particular end, to close the litigation.
8. With this background, the Court has to see what are the merits of the issue in dispute. Whether the Enquiry Officer rightly appreciated the misconduct, that on 29-11-1984 Mr. Muhammad Zaman was suffering from illness and obtained leave supported by medical certificate. Mr. Muhammad Zaman has the grievance that Mr. Haider Zaman was not examined as a co-worker, which was nominated of his choice. Likewise the intimation was given of illness, but he was not allowed to enter in the Mills and informed' by Jamadar Azeez Khan that Labour Officer had stopped the entry.
9. However, this position is not disputed that on 26-2-1986, he did attend the enquiry, actively participated, examined the defence witness Mr. Muhammad Siddique and also he defended through Mr. Abdul Raheem co-worker. Now, what is the effect of the evidence?
10. The dates are relevant to show, when he fell ill. When he made recovery?. When he made application, for leave supported by medical certificate?.
11. On 29-10-1984 to 15-11-1984, he was under sickness. On 19-11-1984, he submitted leave application with medical certificate. It is on this date, Security Officer, Mr. Azeez Ahmed refused to receive application. On 20-11-1984 he was informed by Azeez Ahmed, that Labour Officer had given him instructions that he should not be allowed entry. On 20-11-1984 he wrote letter to the Labour Officer (Annexure A).
12. Prior to participation in the second enquiry, he said to have come at the gate on 12-2-1986. He was informed to attend enquiry on 13-2-1986. On 13-2-1986 he came at the gate. He requested the Enquiry Officer to allow him time. The enquiry was adjourned to 17-2-1986, of which he was informed through letter, he did not attend. On 20-2-1986, enquiry was adjourned to 23-2-1986. He did not appear. He was given the notice and finally attended on 26-2-1986, which is admitted by him also. This background is given referring to the enquiry report.
13. There is another controversy, also that on 28-10-1984, transfer advice was issued to Muhammad Zaman. He received on the same date. Mr. Muhammad Zaman's contention is that, that it was first time received on 1-11-1984.
14. On his own averments in the pleadings of the applicant, examined in affidavit and in his own petition, two points have been conspicuously, noted. There is no mention of transfer advice by Mr. Muhammad Zaman. The point in dispute regarding transfer advice, if has given mention, in the enquiry finding, applicant has not challenged it or produced any satisfactory evidence to convince the Court that first time he received advice on 1-11-1984. If the date of sickness is 29-10-1984, as the starting point and to show that he was unable to perform duty, it is in conceivable that he did attend on 1-11 1984 The obvious conclusion will be that on 28-10-1984, he came there. Although the Enquiry Officer has stated that there was no duty Applicant has shown in cross-examination, that to prove his entry in the Mill on 28-10-1984, there .Is no evidence of gate pass. The fact that gate pass was not produced' before the Enquiry Officer to confirm the accuracy of his presence to receive the transfer advice, there i5 no evidence also from the company side that transfer advice was received at the gate. Mr. Mushtaq Ahmad, witness of the management has stated on oath that transfer advice was received by Muhammad Zaman. If this point remains uncertain, how he came inside the Mill, the second point, which is in issue, when he applied for leave of medical nature. This is crucial point. Applicant has mainly relied on letter of 20-11-1984. The contents of which, revealed the following facts:-- "According to him he had sent information to the company that he was on medical leave from 29- 10-1984 and when he went to give medical certificate, he was informed by Azeez Jamadar that Labour Officer has told him not to allow him entry. Thereafter, he sent this letter by registered post."
15. Medical certificate attached also shows that he was suffering from fever and advised rest from 29-10-1984 to 15-11-1984. If upto 15-11-1984, he was taking the rest in the local hospital. First time in Para No.4 of his affidavit, he has shown that on 19-11-1984 he came and submitted leave application and medical certificate and he was not allowed the entry. This aspect Court has examined closely, to find-out the accuracy and truth of Muhammad Zaman's version. At the same time also examined Mr. Azeez Jamadar's version recorded before Enquiry Officer. This is important aspect that Mr. Azeez Security Jamadar is also an employee and belongs to the labour class, Mr. Azeez Jamadar has stated more confidently that he did not see Mr. Muhammad Zaman on 17th, 19th, at the Mills gate. His letter of 20-11-1984, does not disclose his presence on 17th and 19th. His state of mind is to be seen from that letter, why there is no description of the date he remained present at the gate. The version, therefore, of management is correct.
16. Regarding absence from duty for more than 10 days, this is confirmed beyond doubt that there is no application on the record, nor any copy produced by applicant Muhammad Zaman to show that he did obtain permission from the employer. It is not for the employer to send him to the Social Security hospital, as the question is asked in the cross examination before this Court. Muhammad Zaman has to establish by the evidence of the high order that the disability was such that he had to remain on medical leave duly sanctioned. He has not made any attempt, to examine the Doctor, to test the accuracy of the medical opinion for the advice of the rest which was not more than simple fever. Muhammad Zaman if admitted in the hospital was not indoor patient and could reach the employer and apply through proper industrial procedure of the employment. The leave with pay or without pay was to precede, the sanction. The evidence of Mr. Rizwan Hashmi and Mr. Mushtaq Ahmad, operator, examined by the Enquiry Officer is more reliable and confident. The evidence of Mr. Siddique that on 19th, he attended the gate is neither supported from his letter of 20th nor the evidence of Muhammad Siddique. Weaver is supported by Azeez Security Jamadar of the Mills. Both belong to labour class. Regarding Haider Zaman's participation as the co-worker, if Mr. Haider Zaman has stated before this Court that he was not the employee in the Mill on 26-2- 1986, which Mr. Muhammad Siddique has supported. Merely the pendency of the case, in the Labour Court , challenging dismissal could not be legal requirements when the labour law has placed emphasis that the employee shall only be the person competent to assist, in the domestic forum of enquiry.
The assistance of Mr. Abdul Raheem fully satisfied the legal requirements of the case.
17. Then the point urged As that employer had the information of the pending application of Union for registration. Section 8(A) I.R.O., has placed certain safeguards that no dismissal is to have effect without the permission of Registrar unless the Union has notified the names of the officers to the employer in writing. If the cause of action for the purpose of charge-sheet arose on 12-11-1984 and the misconduct accrued from 29-10-1984. On 20-11-1984, he visited the gate and refused the entry which amounts to dismissal or removal because the grievance notice followed thereafter. The intimation given to the employer on 12-12-1984 much after the misconduct has accrued. Section 8(A) I.R.O., cannot be invoked. Whether the registration of Union was to defeat the enquiry is a secondary question. Further, if the Union was in the process of formation, there was no intimation to the employer at the time of first enquiry. The application, therefore, of section 8(A) is~ not legally conceived.
18. Finally there are two important aspects which Court has also taken view. Whether the employer followed the strict rules of enquiry?. If in the affirmative, whether the major punishment be awarded in the, situation of which circumstances are peculiar and with co-incidence of the formation of Union. Dismissal is no doubt, an extraordinary step, where person loses the job and the earned benefits. Firstly the employer, if has remained under this concept that the copy of the enquiry proceedings, is not the right of the person charged with misconduct. Following the latest judicial authority of the honourable Supreme Court PLD 1981 SC 225, Dawood Cotton Mills v. Guftar Shah, the second show-cause notice and the enquiry report has been, held, as not the mandatory requirement. But the enquiry proceedings is different from the enquiry report. The decision quoted has made reference to the notice of second show cause and the enquiry report.
19. The copy of proceedings, therefore, if desired by the employee, it is the right of the person to claim if in his judgment, finds that Enquiry Officer whether has correctly recorded the proceedings and there has been no manipulation. Omission to provide copies of the--proceedings in the Court's view is the departure from the fundamental aspect of the enquiry. But that do not vitiate the enquiry for two reasons, if it is not shown that there was manipulation or it was false record.
Secondly the person having based his case on the same proceedings and cross-examined on those proceedings before the Labour Court , no more felt the prejudice. The Court will also emphasise that the copy of the proceedings must be provided as a right if he so asks, for, it assures of confidence, and is fine sense of justice under no circumstances the person may feel that" no justice was given to him" or it was a melo drama.
The enquiry approach, must be objective real, and of the highest, moral sense, involving element of justice: The domestic enquiry in the industry has no different concept of justice".
The competency of the approval of the employer regarding dismissal, is first time, brought in the arguments. No evidence is led on this point.
20. Regarding punishment, the Court has referred section15 subsections (2) and (3) of the Standing Orders Ordinance. Subsection (2) speaks of the liability of the punishment, in respect of the misconducts and subsection (3) speaks of the acts and omissions as to misconduct.
21. The Court is of the view, that in the peculiar circumstances of the case, the Court directs that the increment of the applicant shall be withheld, for period of one year and shall be entered in his service to book to improve.
22. The Court is also of the view, that punishment is to be given according to the seriousness of the charge and its gravity. Subsection 8: (3) speaks of absence without leave for more than 10 days.
The absence, can also be unintentional and beyond the control of the human-being by unforeseen, factors. Therefore, every classification of misconduct is to be examined by the Court, whether he place the circumstances appealing to human reason but failed to establish by rational evidence---Here number of circumstances have been shown, the co-incidence of the formation of the Union. Intimation claimed to have been sent but not proved, therefore, the seriousness of the charge is the main question for major penalty, such as theft, fraud or dishonesty or rioting. In this case, the increment withheld for one year will meet the ends of justice as the first punishment for the improvement. Reference is made to 1980 PLC 1226, 1976 PLC 396, 1984 PLC 576.
23. Application is allowed to the extent that the impugned order of a the major penalty of dismissal is modified to the extent of lesser punishment of the applicant. He shall be re-instated but he will not be entitled to increment of one year for year due. He will not be entitled to the back benefits.
Intimation of re-instatement be sent to the Court within seven days.
M.Y.H. /913/Lb.