DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, dated 3-8-1987, whereby he ordered the reinstatement of the respondent with consequential back benefits.
2. The brief facts of the case are, that the respondent was admittedly a permanent employee of the appellants. On 26-11-1985, he is alleged to have attacked one Gul Khan, a Chowkidar of the appellants and inflicted injuries upon him and his son Amanat Khan. He was charge-sheeted for misconduct on 1-12-1985, to which he submitted a reply. Again, on 5-3-1986, he was charge- sheeted for remaining habitually absent on the ground that he remained absent for 39 days during the last 5 months. The respondent in his replies had denied both the charges. Two separate domestic enquiries were held against him and he was found guilty in both the enquiries and consequently his services were terminated, vide letter, dated 22-4-1986. After serving grievance notice upon the appellants, the respondent filed grievance petition before the learned Labour Court.
3. I have heard Mr. Raes M. Mushtaq, the learned Advocate for the appellants and Mr. S. Fasahat Hussain Rizvi, the learned counsel on behalf of the respondent and have also gone through the record and proceedings of the case.
4. The learned Labour Court has held the charges of causing injuries upon Chowkidar, Gul Khan not proved on the grounds that there was admittedly enmity between Gul Khan and the respondent and further that the only other two alleged eye-witnesses were chance witnesses, who were not employees of the Mills and thirdly, that the respondent was honourably acquitted in a criminal case filed against him.
5. During the course of the arguments, the learned counsel for the respondent has produced certified copy of the order of F.C.M. Tando Muhammad Khan in the criminal case against the respondent and 2 others which is dated 9-2-1987. This order shows that the parties had patched up and that the complainant Gul Khan had deposed that he did not identify the culprits who attacked him. He denied the contents of the F.I.R. The respondent was, therefore, acquitted under section 249-A, Cr.P.C. It is not an uncommon feature in our country that the parties compromise outside the Court even in the criminal cases and go back on their evidence in order to save the culprits in the terms of the compromise. Both the parties are tribals belonging to Northern parts of Pakistan and the disputes in that area are generally settled in Jirga by their elders, which decision is binding on the parties. Therefore, the evidence of Gul Khan in the Court after the patch up would have little value in comparison with his evidence before the enquiry officer which was recorded soon after the incident viz., on 26-11-1985. In the statement before the enquiry officer, both injured witnesses Gul Khan and his son Amanat Khan have fully implicated the present respondent alongwith few others also. Sultan Khan, the only other eye-witness, who was examined on 17-12- 1985 has also fully implicated the respondent. In his statement, the respondent has admitted the presence of both Amanat Khan and Sultan Khan in the Mill area in the canteen. Their presence, thus, at the time of incident near about the scene of offence is admitted by the respondent.
Therefore, their evidence cannot be discarded merely on the ground that they were not working in the mills. Apart from their evidence, there is evidence of Imam Din, Head constable, Sub. Major (Rtd.) Abdul Ghani, Security Incharge and Jehan Khan, Joint Secretary of C.BA. Who came to know about the incident and went to the scene of offence where they found Gul Khan and Amanat Khan lying injured. Iman Din had stated that Sultan Khan had, told him that Sher Zaman and 2 others had beaten him. Sub-Major (Rtd.) Abdul Ghani had stated in the enquiry that Gul Khan had told him that Sher Zaman and others had beaten him and that Sultan Khan, who was also present there had told him that Sher Zaman and 2 others had beaten them. Jehan Khan, however, has given a conflicting statement. He had stated that he was informed about `Jhagra' by Imam Din and when he went he found no sign of Jhagra. In cross-examination by one of the accused persons, he had stated that Amanat Khan and Gul Khan were lying injured at the bridge. The report of the enquiry officer also shows that Gul Khan and his son Amanat Khan had sustained serious injuries and were admitted in Taluka Hospital for treatment as medico-legal cases and their injuries were so serious that they were referred to L.M.C.H. Hyderabad. It may also be pointed that the respondent had only examined himself, but, examined no witness in his defence. All this evidence clearly shows that in the Mill area Chowkidar Gul Khan and his son Amanat Khan were attacked by the respondent and some other persons who caused injuries upon them. The evidence also shows that this incident took place because of the dispute between the parties from their village and that they were inter- related.
6. While considering the question as to whether the charge is proved or not in the domestic enquiry, the evidence recorded in the domestic enquiry will have to be looked into and considered.
Mr. Raes M. Mushtaq, the learned Advocate for the appellants has relied upon the case of Muhammad Shamim versus Messrs Pakistan Tobacco Co. Ltd. Karachi and another, reported in 1975 SCMR 46, wherein their Lordships have held "that the Labour Court is only concerned with the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner committed the theft was a question of fact and could only be enquired into by the enquiry officer."
7. Mr. S. Fasahat Hussain Rizvi, the learned Advocate for the respondent, however, has argued that under section 25-A(5), I.R.O. The 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. In the case of Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqoob, reported in PLD 1978 SC 207; their Lordships have, however held "the Labour Court can go behind a dismissal order to see itself whether on facts, and in circumstances of the case, dismissal order was or was not justified both on merits as well as law." It was further observed "the intention of the 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 Labour Court." The learned Labour Court was, therefore, justified in going behind the order of dismissal to find if the respondent was guilty of the charge as alleged.
The order of acquittal by the Magistrate does not appear to have been produced by the respondent before the learned Labour Court, but only a statement was made that the respondent had been honourably acquitted. I have already pointed out that the circumstances of the acquittal which are apparent from the acquittal order, and which in no way nullify the findings of facts given by the enquiry officer. Even before the learned Labour Court, the respondent had examined Sub- Major (Rtd.) Muhammad Aslam, who has stated on oath that on 26-11-1985, the respondent had gheraowed Gul Khan Chowkidar of the appellants Mills who was on duty at that time and he and his son were injured by the respondent. The F.I.R. Lodged with the Police in respect of the incident was also produced before the learned Labour Court as R-1 which shows that it was lodged on the same day viz., on 26-11-1985 by the injured Gul Khan who had fully implicated the respondent. From this evidence which has been discussed above, it cannot be said that the charge against the respondent that he beat the chowkidar in the Mill area while he was on duty, was not proved.
8. On the second charge of remaining habitually absent, the learned Labour Court has held the charge not proved on the ground that under the charge-sheet, the respondent was not charged for remaining habitually absent and that the number of days for which he was charged for remaining absent was also not proved. The charge-sheet has been produced as Annexure `A-2' by the respondent himself alongwith the grievance petition which shows that from October, 1985 to February, 1986, he remained absent for 39 days and that he was in habit of remaining absent without intimation. He was charged with misconduct under Standing Order 15(3)(e)(g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Standing Order 15(3)(e) describes as misconduct habitual absence without leave or absence without leave for more than 10 days. However, the enquiry officer found the respondent to have remained absent for 34 days. In the reply to show cause notice Exbt.R-4, the respondent had not denied the factum of remaining absent without leave, but, instead he had stated that he was attacked in his village and was put in jail and was also hospitalized and when he returned to Karachi he was beaten by some supporters of the C.BA. Who got him suspended. Before the Enquiry Officer, Muhammad Usman, Time-keeper was examined. He has given the dates on which the respondent remained absent without leave. According to him he remained absent for 4 days in October, 1985; for 16 days in November, 1985. He has also stated that the respondent remained suspended for 28 days in December. He had further stated that the respondent had remained absent for 10 days in January 1986; 4 days in February 1986. He has further stated that he had applied for leave, after show-cause notice for 5 days which was granted to him and, therefore, though his absence in charge-sheet was shown as 39 days, but, in fact, he remained absent for 34 days. In the cross-examination to the respondent, he had stated that the respondent had remained absent and used to remain absent for 6 or 7 days every month which absence is marked in the record. In the statement before the Enquiry Officer, the respondent did not deny his absence for the days and on dates stated by Muhammad Osman, Time-keeper, but, had tried to justify his absence as pointed above. On a question by Enquiry Officer, he had stated that he remained in lockup for 5 days from 26-11-1985 to 30-11-1985 and that he had applied for leave for these 5 days which was rejected by the office.
However, the evidence of the time-keeper shows that his application for 5 days leave was allowed.
From this evidence, it cannot be said that the charge of C habitually remaining absent was not proved against the respondent. The evidence shows that he remained absent for 34 days in 5 months excluding the period of his suspension and also the period of leave granted to him.
9. The respondent has further alleged that he had been victimized by the appellants at the instance of the C.B.A. As he was an active member of the rival union. Mr. Raes M. Mushtaq has submitted that this was a vague allegation and no reason has been shown as to why the appellants should have victimized the respondent because he was a member of the union which was rival to the C.BA. Mr. Raes M. Mushtaq has relied upon the decision of the N.I.R.C. Reported in 1986 PLC 511. In that case, no specific instance of victimization was quoted in the petition excepting a reference to the letter of retirement issued by the establishment to such an employee. It was held that the order of retirement would not amount to victimization if the employee was due to retire in accordance with the rules of retirement. In the case of Syed Wazarat Hussain Zaidi v. Sindh Labour Appellate Tribunal and another, reported in 1987 PLC 17, a learned Division Bench of High Court of Sindh at Karachi had observed that "burden of proof is upon party urging mala fides. Mala fides is to be ebstablished through convincing evidence that impugned order was based upon extraneous circumstances and was not maintainable under law." In the instant case, there appears to be no such proof which could show mala fides on the part of the management.
10. Mr. S. Fasahat Hussain Rizvi, learned Advocate for the respondent has relied upon 1976 PLC 278, wherein learned Judge of Karachi High Court had observed that where complete record of domestic enquiry was not produced before the Labour Court, the Labour Court in the circumstances would be unable to adjudicate upon the matter regarding to section 25-A(5) of the I.R.O., 1969. In the instant case, (sic) and that all the enquiry papers have been produced before the Labour Court, It was not necessary for the appellants to produce charge-sheets against those co- workers who were also charged alongwith the respondent, though the enquiry report refers the evidence against those workers and the Enquiry Officer had also given opinion about the involvement of the co-workers.
11. Considering all the facts and law discussed above, in my opinion, the plea of mala fides raised by the respondent is vague and has not been proved by him through convincing evidence. Two Enquiry Officers, who have been examined before the learned Labour Court, have withstood the test of cross-examination by the respondent and even the learned Labour Court had not found any fault with the proceedings in the enquiries. The charges of misconduct stand proved against the respondent from the evidence before the enquiry officers. I, therefore, allow the appeal and set aside the impugned order passed by the learned Labour Court.