DECISION ' This is an appeal against the order of learned Presiding Officer, Second Sind Labour Court at Karachi, dated 2-4-1985, whereby he dismissed the grievance application of the appellant.
2. The facts of the case leading to this appeal are that the appellant was admittedly employee of the respondents. He was elected as President of the C.B.A. Union. On the allegations, that on 15-7- 1980 the appellant entered the boiler room which was prohibited area and that he did not leave the boiler room when so asked by his Senior Executive Mr.Siraj and that he misbehaved with Mr.Siraj and also used abusive language, the appellant was charge-sheeted by the respondent and after domestic enquiry he was removed from service. Being aggrieved by this order the appellant after serving the grievance notice filed grievance petition against the respondents.
3. 1 have heard Mr.Mirza Muhammad Kazim, learned Advocate for the appellant and Mr.Masood Ahmed Khan, learned counsel for the respondents.
4. . It is not disputed that the appellant had gone to the boiler room, on the date in question but it was submitted by Mr.Mirza Muhammad Kazim that as President of the Union the appellant could go to the boiler room and further that it was the first of Ramazan, therefore, he had gone there to arrange for the prayers and to contact boiler attendant Shamsul Haq to lead the prayers. However when asked the learned counsel for the applicant conceded that there was no such rule under which the President of the Union could enter the boiler room or that he had to arrange for the prayer. He, however, submitted that it was the usual practice. On the point of alleged practice also, no evidence on record is pointed to show that there was any such practice.
5. There are two versions of the incident as to what happened in the boiler room. According to the appellant he was beaten by the said Siraj and the chowkidars and was thrown out of the factory with regard to which the union filed a complaint with the police which complaint was signed by number of workers. The appellant also sent such letter to the police on the next day. The version of the respondent is that the appellant did not leave the boiler room when so asked by the said Siraj but used abusive language and misbehaved with Mr.Siraj.
6. Admittedly the complaint filed by the union before the police was not supported even by the signatories of this complaint and, therefore, no action was taken by the police. Admittedly the appellant did not file any complaint in Court against said Siraj and others for their alleged act of beating the appellant. With regard to the case of management the appellant was charge-sheeted for entering the boiler room at about 4.15 p.m. On 15-7-1980 when he was supposed to be in the Weaving Department and when no worker was allowed to enter the boiler room. He was further charged that he disobeyed the orders of his Senior Executive Mr.Siraj to leave the boiler room but used indecent, highly insubordinate and abusive language. The third charge against him was that he had left the factory premises straightaway without waiting to receive the charge and had thereafter not reported at the factory.
7. Admittedly Mr.Muhammad Omer was appointed as Enquiry Officer. He has been examined by the respondent and has also proved and produced the record of enquiry proceeding Ex.4-AC/1 (19 pages) and Enquiry Report Ex.1-AC (8 pages). Admittedly he was not even employee of the respondent and admittedly he had no enmity or grudge against the appellant. The enquiry proceedings and report show that respondent examined five witnesses to prove the charges levelled against the appellant namely (1) complainant Siraj, (2) Jamadar Akbar Khan, (3)
Chowkidar Mirza Ali, (4) Chowkidar Hazrat Gul and (5) Boiler Attendant Sabir Ali Shah. The appellant had cross-examined all the witnesses except Jamadar Akhar Khan, whose evidence has gone unchallenged. On the basis of this evidence the Enquiry Officer held that the charges were proved against the appellant. The appellant alleges that the Enquiry Officer was not acting fairly. The Inquiry Officer has been examined before the learned Labour Court and I find that no suggestion in the cross-examination has been made to show specific instance of unfairness on the part of the Enquiry Officer. The fact that the appellant did cross-examine four witnesses proves that he did participate in the enquiry. His subsequent failure to participate further and lead evidence in defence would not in any way make the enquiry illegal. Reference may be made to the case of Misry Khan v. Hussain Industries Limited 1984 PLC 1463. In that case accused after cross-examining some of the prosecution witnesses deserted and did not participate while prosecution evidence was still in progress. It was held by this Tribunal that he cannot be allowed to take advantage of his own conduct subsequently on the plea that he was not given opportunity of cross-examination.
The order of his dismissal from service pursuant to such enquiry was held to be just and proper.
8. The next submission of the learned counsel of the appellant is that the appellant had requested for change of the Enquiry Officer which was not accepted. As pointed out by learned Labour Court in his grievance notice as well as in petition appellant has not taken this ground. Furthermore the appellant could not be allowed to choose Enquiry Officer of his own choice specially when Enquiry Officer was an independent person and not an employee of the respondents and with whom the respondents had admittedly no enmity.
9. Mr.Masood Ahmed Khan, learned counsel for the respondents had relied upon case of Nazir Ahmed v. Government of West Pakistan 1972 PLC 539 wherein learned Single Judge of Lahore High Court has held 'it was within discretion of the authority concerned to transfer or not to transfer enquiry proceedings if they were not impressed by bona fides plea advanced by the petitioner in that behalf and orders cannot be said to be without lawful authority.' In the case of Guest Keen & Nottlefolds Pakistan Ltd. v. Arif Hussain 1982 PLC 241 this Tribunal has held 'where objection of workman to the appointment of Enquiry Officer was not shown to be well-founded and record did not indicate that the Enquiry Officer was in any way in any case prejudiced or biased against the workman, mere objection would carry no weight and had to be ignored.' In the case of Dr.Burjer Anklesaria Nursing Home v. Zafar Iqbal 1982 PLC 553 this Tribunal had held that 'boycott of inquiry proceedings does not vitiate inquiry report if there is sufficient material to establish misconduct on the part of a delinquent employee.' Under the circumstances this objection of the learned counsel for the appellant with regard to Enquiry Officer has no force.
10. The main contention of the learned counsel for the appellant is that the appellant had examined himself and one Maqbool Ahmed before Labour Court to show that the charges against him were incorrect whereas the respondent had not examined any witness to prove the alleged charges against him. They had examined only Enquiry Officer who had no personal knowledge of the incident but who simply produced enquiry papers and report. It was further submitted that there was no evidence before the Labour Court to base its finding that the charges against appellant stand proved and he was rightly removed from service. In support of his contention the learned counsel relied upon the case of Crescent Jute Products Ltd. v. Muhammad Yaqoob NLR 1978 Labour 586, wherein the learned Single Judge of the Lahore High. Court in the Writ Petition declined to interfere with the order of the Labour Court accepting the appeal of the workman. In that case the record of Junior Labour Court showed that no official whom the appellant had disobeyed had been produced but the Enquiry Officer had appeared as witness. Even the copies of the statements of witnesses had not been produced. It was observed by the learned Single Judge of the Lahore High Court "the petitioners have challenged the jurisdiction of the Labour Court to scrutinize domestic enquiry and contended that the domestic enquiry was immune from scrutiny of the Labour 'Court. The right of scrutiny cannot be denied to the Labour Court but in performance's their statutory functions the Labour Court must on the grievance petition oversee and examine proceedings in domestic enquiry. If the employer does not lay before the Labour Court proceedings of enquiry with a view to satisfy Labour Court that enquiry had been conducted in accordance with law or findings recorded are on material properly brought on record then in the case of adverse decision employer cannot make a grievance of it
11. The employer went before the Supreme Court against this decision of the Lahore High Court and in the decision reported in PLD 1978 $ C 207 their Lordships observed:- "In subsection (5) of section 25-A of the Industrial Relations Ordinance (XXIII of 1969), it is laid down that 'in adjudicating and determining a grievance under subsection (4), Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.' From the language of the statute hereinbefore reproduced it is clear that Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and circumstances of the concerned case it was justified or not, both on merits as well as on law.
The words 'shall go into all the facts of the case' are clear guide with regard to the wide scope of the enquiry which a Junior Labour Court undertakes under section 25-A.
' The words 'shall go into all the facts of the case' clearly signify that the Junior Labour Court has full and complete powers to enter even into questions of fact and to arrive at its own conclusions regardless of there being no illegality of procedure in the domestic proceedings. By use of these words the intention of legislature appears to provide a double check, one in the form of a domestic enquiry to be held by an employer and the other in the form of a judicial determination by the Junior Labour Court itself.
' In other words the intention of subsection (5) of section 25-A appears to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal is based."
' This decision of the Supreme Court was considered by this Tribunal in the case of Messrs Mercantile Industries Ltd. v. Amber Shah and another 1983 PLC 143 and the case of Crescent Jute was distinguished. It was observed by this Tribunal that words used in section 25-A, I.R.O. That 'Labour Court shall go into all the facts of the case' mean that the Labour Court should examine all material placed before it including enquiry proceedings if brought on record and can suo motu summon any witness if domestic enquiry is not clear and needs clarification but it was not requirement of law that all the witnesses examined in domestic enquiry should also be examined by the Labour Court." As material on record was found sufficient to establish charge against the accused, therefore, the decision of the Labour Court setting aside dismissal order on the ground that witness of domestics enquiry was not produced before it was held erroneous.
12. In the instant case I find that the learned Labour Court has taken into consideration the evidence of witnesses examined by the Enquiry Officer as enquiry papers have been brought on record and then came to the conclusion that the charges against the appellant stand proved. The view "taken by this Tribunal also finds support from the view taken by the Lahore High Court in the aforesaid case of Crescent Jute Mills Ltd. The Lahore High Court dismissed the petition of the employer mainly on the ground that not only they did not examine any witness but also did not produce enquiry paper before Labour Court to show as to what evidence had come before the Enquiry Officer against the employee. In the instant case as pointed out the enquiry papers containing the examination and cross-examination of witness have been produced and has been taken note of and considered by the learned Labour Court. Even the appellant has admitted that he had no enmity either with Siraj or aforesaid witnesses examined by the respondent before the Enquiry Officer. As pointed above the evidence of one of the witnesses has gone unchallenged as he was not cross-examined.
13. The appellant has stated that he had gone to contact boiler attendant Shamsul 11aq in order to persuade him to lead prayer. He has not examined Shamsul Haq either before the Enquiry Officer or before the Labour Court to prove his version of incident. He has examined one Maqbool who claims to be employee of the respondent at the relevant time but he does not have documentary evidence to prove his employment. Admittedly his name was never mentioned in the grievance notice or grievance petition. Admittedly he is not signatory to the complaint made to the police.
Under the circumstances his evidence is not sufficient to hold that the charges against the appellant are not proved.
14. It is also alleged that the appellant was victimized because of union activities as President of the Union. When asked by this Tribunal learned counsel for the appellant, on enquiry from the appellant, stated that he had been elected as President of the Union about one year prior to the alleged incident. It is not understood as to why the respondent should victimize him after one year.
It may be pertinent to reproduce the observations of the learned Labour Court with regard to the allegation of victimization. It reads as under:- "The first ground which has been vehemently argued on behalf of the applicant is that his dismissal was solely on account of his trade union activities in espousing the cause of the workers which was not liked by the respondents and they get rid of him. In support of the above contention reliance has been placed by the applicant on the dismissal of Muhammad Salim, the General Secretary of the CBA Union and it has been contended that the respondents wanted to get rid of all the newly- elected office-bearers of the CBA Union as all of them were espousing the cause of the workers and would not been won over by the respondents. The allegation of victimization is very serious allegation and exposes the management of the respondents to a criminal proceedings which could result in imprisonment and, therefore, the person who levels allegation of victimization is required to adduce reliable, independent and trustworthy evidence in support of such an allegation. The applicant has failed to draw my attention to evidence on the record which could establish the factum of his victimization on account of his trade union activities. He has also not been able to establish that Muhammad Saleem, the General Secretary of the CBA Union was dismissed from service on account of his trade union activities or by way of victimization inasmuch as he admitted in evidence that the dismissal of Muhammad Saleem was upheld by a Labour Court. The applicant also admitted in his cross-examination that none of the nine members of Managing Committee of the CBA Union was dismissed from service by the respondents. In the circumstances, the applicant has to establish that his dismissal was by way of victimization on account of his trade union activities or on account of any hostility or enmity between him and the management inasmuch as he candidly admitted in his cross-examination that he had no hostility enmity or difference with any of the Seths or officers of the respondents. I, therefore, hold that this contention has no force."
15.Reliance was also placed on the case of Sawal Faqir and another v. Messrs Globe Textile Mills Ltd.
1981 PLC 643 wherein this Tribunal held:- "No presumption can be drawn without concrete evidence of victimization. The mere fact that the workman was office-bearer of the trade union was itself not sufficient to establish victimization.'
16. I am in full agreement with the above finding of the learned Labour Court. It is settled law that the burden of proof of victimization or mala fide action is always upon the party who makes such allegation. This burden:has not been discharged by the appellant.
17.The next question that requires consideration is whether the alleged act of the appellant is such which can be considered as misconduct which could call for such major punishment. Mr.Masood Ahmed Khan has relied upon the case of The INN, Airport, Karachi v. Mehmood Ali 1978 PLC 347. In that case a Vice-President of Union accompanied worker to the Personnel Officer of the Management in angry mood and when he was asked to leave, he refused to leave and he resorted to rude and insulting behavior in his capacity as Vice-President of the Union. This Tribunal held 'that the charge of misconduct, in circumstances, was rightly set up because such misbehavior amounted to willful insubordination constituting misconduct and dismissal on the basis of such charge in impartial inquiry was not exceptionable. 'In the instant case also the appellant insisted on the right to enter the premises which is admittedly prohibited area only on the ground that he was President and refused to leave when so asked by his superior officer and acted in rude and insolent manner.
18.The fact remains that five witnesses have deposed before the learned Enquiry Officer in proof of the charge against the appellant and have supported the version of the management which evidence has been held by the Enquiry Officer as well as by learned Labour Court to be sufficient to prove charges against the appellant. The counter-version of the appellant did not, admittedly, get any support in the complaint filed with the police and no direct complaint was filed with regard to the counter-version. No other witness was examined by the appellant before the Enquiry Officer. No such person was examined by the appellant before the learned Labour Court whose presence at the spot was either admitted or was apparent from the circumstances of the case. The only witness examined is Maqbool. He is very doubtful witness who was not able to prove to be the employee of the respondents and whose name admittedly does not transpire either in the complaint before the police or in the grievance notice or grievance application.
' For the aforesaid discussion and reasons I find no merit in this appeal which is dismissed.