1. The applicant was employed as Damage Checker and being a permanent worker was covered by the provisions of Standing Orders, Ordinance of 1968. According to him, in October 1984 one union by name of Modern Textile Mills Employees Union was formed and on its rejection this new union applied for referendum. The respondent was not happy with this new union and so in order to crush it, it started victimizing the office-bearers and other active members of this union. With the same view in end, the respondent charge-sheeted the applicant on 29-11-1984 containing false and fabricated allegations and then ordered an enquiry to be conducted by one Labour Officer. No confidence was shown against this Officer in view of his hostile attitude against the union but with no result. Finally, the applicant was dismissed from service by letter dated 24-1-1985. Grievance notice was then sent by the applicant on 20-4-1985 and it having been rejected by letter' dated 25-4-1985 the present petition was instituted for reinstatement with consequential benefits.
2. The respondent, in its reply statement, questioned the maintainability of this petition as, according to it, no cause of action had accrued to the applicant. On merits, while denying the allegations of the applicant against the management, it pleaded that the applicant had committed a serious misconduct and so he was legally proceeded against and was rightly dismissed from service.
3. The applicant examined himself alone in support of his case, while on behalf of the respondent, its present General Manager, Sarwaruzzaman, Ex-Manager Kazi Rameezuddin, and Ex-General Manager, Major (Rt.) Sagheer Ahmed, as also Mr. Zahoor Ahmed, Enquiry Officer, were tendered in evidence.
4. I have heard Mr. Muhammad Bashir Awan, Advocate for the applicant, and Mr. Masood Ahmed Shaikh, learned Representative for he respondent. I have also minutely scrutinized the material on record.
5. It has been contended by Mr. Bashir that the impugned action was passed with a mala fide intentions and with a view to crush the union activities in the respondent establishment. To substantiate his plea he has taken me through the evidence on record and has also explained the conduct of the management demonstrated by it during last 3/4 years. He proceeded to argue that the two General Managers M/s Sarwaruzzaman and Sagheer Ahmed have showed their ignorance about the factual position as pleaded by the respondent in its reply statement and so their evidence has to be excluded as also the written statement is to be ruled out of consideration. Mr. Bashir submits that if the written statement is excluded from evidence, there would be nothing on record to prove the plea of the respondent or to rebut the allegations of the applicant. He also submitted that the impugned order is void ab initio at least on three grounds viz. (1) that Mr. Rameez was incompetent to order charge-sheet or to remove the applicant; (2) that while missing the impugned order he was seriously prejudiced as he considered the past record of the applicant to hold him guilty of the present charge though such past record was never notified to the applicant and thus he was also condemned un-heard and (3) that the applicant was kept under suspension for more than 28 days and as such he was suspended from 29-11-1984 till his dismissal dated 24-1-1985. According to him, this long suspension also proved the mala fide of the respondent. As to the merits, learned counsel submits that the charge, on the face of it, was not only vague but was also not proved. No independent person was examined by the respondent to prove the charge and only interested officers were tendered in evidence. The independent workers have however proved that no incident as alleged took place and that the charge was a fabricated one.
6. Mr. Masood, on the other hand, submitted that the union of the applicant was not a C. B. A. At the time of charge-sheet and so it cannot be urged that the applicant was proceeded against because of his union activities. He submits that the past record of the applicant as R/29 to R/33 proves that he was not having a good conduct and performance and so he was rightly charge- sheeted and removed. According to him, Mr. Rameez was competent to appoint and remove the workers, while the Director Administration used to appoint and remove only employees other than the workers and so the impugned order was passed by a competent person. As to the suspension, Mr. Masood submits that the applicant was served with two charge-sheets and so his suspension was in connection with these charge-sheets for 4 days at a time and so it cannot be pleaded as illegal. No worker could be examined in enquiry by the respondent because none was prepared to come forward and so only the Officers were tendered in evidence and thus respondent committed no illegality. Moreover, according to him, complainant did not cite any witness in support of his allegations. The defence witnesses are unreliable particularly D.W. Khalid as he was admittedly on leave on the day of incident and he could know nothing about the incident.
7. Mr. Zahoor, Labour Officer and who also conducted the enquiry in this case, has stated in his examination-in-chief that the personal record of the workers used to be maintained by him. In his cross---examination, he stated that Director Administration was only person competent to remove the employees of the respondent. This assertion of this important witness of the respondent has nowhere been denied by the respondent nor this witness was declared hostile. A person maintaining the record as an important Officer, would to conversant with the authority of the Officers and if such officer states that a particular Officer is competent to appoint or remove, the same would be deemed to be true. Of course Mr. Rameez has stated that he was competent to appoint and remove all classes of employees but this assertion was specifically disputed in his cross-examination on behalf of the applicant. He however did not produce any proof about his authority particularly when the important witnesses referred to above has admitted that the competent person in this behalf was only the Director Administration. The submission of Mr. Masood is thus of no legal importance because even Mr. Rameez has no where stated that he was competent to appoint the workers. In fact, according to him, he was competent to appoint all classes of employees whereas Zahoor says that the employees would be removed only by the Director Administration. Since the authority of the Manager was specifically challenged, it was for the respondent to have led positive evidence and since it failed, the impugned order cannot be considered to have been passed by a competent person and so it has to be set aside on, this ground alone.
8. Mr. Rameez admitted that he had considered the past record of the applicant while ordering his removal though such record was never referred to in the charge-sheet. The applicant was thus condemned unheard particularly on a charge which was never notified to the applicant.
9. The intention of the respondent is also significant. He was kept under suspension from 29-11-1984 till his removal. The contention that his suspension was in respect of two charge-sheets is not tenable for the simple reason that firstly the proceedings as to the first charge-sheet have not been brought on record, and, secondly, that the suspension cannot be ordered on two charge-sheets by one letter. No document has been produced to show that the applicant was suspended at any time on charge-sheet dated 21-11-1985 alone. Moreover, it is on record, and which is also undisputed that previously the respondent had removed active members of the union in one way or the other and as soon as the present union was formed and it applied for referendum he was twice charge-sheeted within a span of eight days. The assertion of the applicant in regard to the action of the management against union activities even prior to the present union has also not been disputed in the cross-examination of the applicant. On going through the statements of the witnesses of the respondent recorded by the Enquiry Officer also, it is clear that the applicant was victimized due to his union activities. On 3-10-1984 the applicant and the other office-bearer Muhammad Akram, applied for leave for one day and though it was recommended by their Supervisor, but the same was refused by the complainant and the other witnesses against the applicant on the ground that management had advised them not to permit the office-bearers of the union to avail any leave. The matter did not end at that but the Weaving Master and Assistant Weaving Master did not permit the attendance of the applicant etc. On 4-10-1984 though they had actually worked on that date. They were also not paid their wages till their dismissal. These are the few examples of the harassm ent of the office-bearers of the newly formed union.
10. Reverting to the merits, the allegation is that the applicant and his colleages had way laid the Weaving Master abused him and attempted to assault him. The other two witnesses of the same Khata then saved him from the clutches of the applicant and his colleagues.
11. Admittedly lot of workers remained present at the place of incident gut none was examined to prove this incident. The applicant, on the other hand, has examined three workers and all have denied the allegations against the applicant. The assertions of the two defence witnesses has not been disputed though they were cross-examined on behalf of the complainant in detail and so whatever they had stated before the Enquiry officer, the same stood proved. The findings of the Enquiry officer against them is thus perverse and appear to be under the influence of management. In nut shell, if the entire material ,s taken into consideration, no misconduct to warrant removal would appear to have been established and so the impugned order cannot be maintained.
12. A.E./956/Lb.S revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.