DECISION ' These 2 appeals are directed against the orders of learned Presiding Officer, Sindh Labour Court No,III at Karachi, dated 24-10-1989, whereby the grievance applications of both the respondents were allowed and they were ordered to be reinstated with full back benefits. I propose to dispose of both the appeals by this single decision as the facts and grounds in both the appeals are same and both the respondents were dismissed from service as a result of a joint domestic enquiry.
2. Admittedly both the respondents were workmen working with the appellants and were the office-bearers of the C.BA. Union. On 14-6-1983, both the respondents were charge-sheeted separately that on 12-6-1983 and 13-6-1983, they refused entry to Mr. M.A. Habib, Senior Manager (Personnel) by closing the main gate of the factory when he came for duty. After domestic enquiry, both the respondents were dismissed by orders, dated 12-1-1984. Both the respondents after serving grievance notices upon the appellants, filed separate grievance petitions which were resisted by the appellants on the grounds inter alia that the charges stood proved against them.
3. I have heard Mr. S.M. Yaqoob, the learned representative for the appellants and Mr. Riaz Hussain Baloch, learned Advocate for the respondents and have also gone through the record and proceedings of the cases.
4. The learned Labour Court has held the enquiry to be unfair on the grounds inter alia that the Enquiry Officer was prejudiced; that the respondents were not given chance to cross-examine the witnesses; that they were dismissed when fresh Charter of Demands made by the C.B.A. Union was pending for settlement before the management.
5. Mr. Nawab Din Sabri, who was the Enquiry Officer has been examined by the appellants. In his cross-examination, he had admitted that since 7-74983, the respondents did not participate in the enquiry. He also admitted that place of enquiry was changed on 11-7-1987, but, he issued a letter to the respondents for the change of place of enquiry on 19-7-1983. He had stated that the respondents were informed about the dates of hearing and change of place through Notice Board and through registered A/D; but, A/D slips admittedly have not been produced for any of the letters as they were not available in the enquiry papers. Mr. Sabri had, however, admitted that he used to take guidance from the Administration from time to time regarding enquiry procedure and the place of enquiry was changed as there was a telephone in the new room where the enquiry was held. The enquiry papers show that none of the witnesses of the prosecution was cross-examined by the respondents as they were not present.
6. The appellants have also examined one Mr. Syed Raza Hassan. It may be pointed that both the respondents had filed separate affidavits-in-evidence in support of their cases and were cross- examined separately, but, by consent of the parties, the evidence of the 2 witnesses of the appellants, namely, Raza Hassan and Nawab Din Sabri was recorded only in the case of Naimatullah Shah Bukhari and was treated as evidence in the case of Ajeeb Gul also.
7. It may also be pointed that as per charge-sheet, it was Mr. MA. Habib who was not allowed to enter the factory. Normally, he would be the complainant against the respondents. Mr. Syed Raza Hassan, has admitted that he had issued the charge-sheet against the respondents under oral instructions of the Managing Director. He further stated that Mr. Allah Dad K. Brohi was Manager Admin. And he had submitted the complaint to Managing Director and the copy whereof was sent to him. He further submitted that he had not produced copy of the complaint before the Enquiry Officer. However, Nawab Din Sabri stated that it was on the complaint of Mr. M.A. Habib on which respondents were charge-sheeted. He also admitted that no complaint was produced before him.
Thus, the establishment does not appear to be sure as to on whose complaint, the respondents were charge-sheeted.
8. Mr. Nawab Din Sabri has also admitted that in his capacity as Enquiry Officer, he did not issue any intimation to the respondents. Mr. Raza Hassan has admitted that he did not remember whether he issued any letter to the respondents after 18-7-1983 till their dismissal, regarding the enquiry.
9. Exbts. R-13 are letters addressed to the respondents, dated 11-7-1983. They appear to have been sent by registered post and postal receipts have been produced as R-14 alongwith written statement. However, in these letters, the respondents have been informed that the enquiry had been fixed on 18-7-1983, but, there is no indication about the change of the venue. The only other letters along which postal receipt is attached are R.18, dated 27-7-1983 in which the respondents were informed that the matter was fixed for 31-7-1983 and the last opportunity was given to them to cross-examine the witnesses. It may be pointed that the enquiry was finalized on 31-7-1983 and thereafter a report was submitted by the Enquiry Officer on 17-8-1983. It may further be pointed that the address shown in the letter, Annexure R-18 addressed to respondent Naimatullah Bukhari; is different from the one shown in the letter, Annexure R-13 and the letter, Annexure R-16. No A/D receipt has been produced nor any evidence was produced to show that this letter R-13 was received by the respondent, Naimatullah Bukhari. Similar is the position in the case of the respondent, Ajeeb Gul also. Letter R-18 was sent on a different address than shown in R-13 and there is no evidence that it was received by the respondent Ajeeb Gul.
10. It may be pointed that admittedly when the enquiry was first initiated on 23-6-1983, the respondents appeared before the Enquiry Officer with about 40 or 50 workers. It is contended by the respondents, that they had been directed to attend alongwith the defence witnesses, therefore, these workers were produced as defence witnesses. But, it is alleged by the appellants that these workers had created disturbances. Admittedly, Qari Muhammad Ishaq, Abdul Latif Bhashani and Muhammad llyas were charge-sheeted, for the alleged misconduct on the said date. It may also be pointed that 2 witnesses of the prosecution, namely, Syed Raza Hassan and Nawab Din Sabri were examined on 24-7-1983 and 4 witnesses were examined on 27-7-1983. There is no evidence to show that the respondents had been informed about these 2 dates of hearing. Mr.S.M. Yaqoob, the learned representative for the appellants has relied upon a decision of this Tribunal, reported in 1981 PLC 512. However, in that case due notice of enquiry was given to the employee, but, he refused to participate, therefore, it was held ex parte. Similarly, in the case, reported in 1975 PLC 221, the enquiry was adjourned at the request of the accused to 13-8-1970, but, it proceeded ex parte as the accused made unreasonable requests to the Enquiry Officer which were not possible of being complied with. This Tribunal, therefore, held that such an ex parte enquiry in circumstances did not render enquiry unfair and partial. In the instant case, it would be seen that most of the witnesses were examined in the absence of the respondents. The enquiries were being adjourned in the absence of the respondents and there is no evidence that new dates of enquiry were communicated to the respondents. Admittedly the venue of the enquiry was changed and there is no evidence on record to show that such change was communicated to the respondents. The respondents had no opportunity to cross-examine the witnesses of the management and did not have opportunity to produce any evidence in rebuttal. Such an enquiry has rightly been held by the learned Labour Court as unfair.
11. It may also be noted that Mr. S. Raza Hassan had admitted in his cross-examination that only Managing Director was competent to dismiss the respondents and that he was not competent to dismiss the respondents. The dismissal order, produced in the case of respondent Ajeeb Gul is signed by Mr.S.Raza Hassan, General Manager (A & P). The dismissal order in the case of respondent, Naimatullah Bukhari did not appear on record, but, a copy of it has been produced by Mr.S.M. Yaqoob, learned representative for the appellants under the instructions of this Tribunal and this order is also signed by Mr.S.Raza Hassan. Thus, the orders of dismissal are not signed by a competent authority. Admittedly, the appellant is an industry, taken over under the President's Order No,1 of 1972 (Economic Reforms Order 1972). Under proviso to sub-clause (4) of Article 4 of this order, "the Managing Director may require any Director or other officer in respect of whom an order is made under this clause to perform any function in relation to the establishment as the Managing Director may direct on such terms and conditions as may appear reasonable." No evidence has been produced to show that any such Delegation of Power was made by the Managing Director to Mr.S.Raza Hassan. The respondents had raised a plea in their grievance petitions, that the orders were not passed by the competent authority. As such, it was for the appellants to prove that Mr.G.Raza Hassan was acting under any such Delegation of Powers.
12. For the aforesaid reasons the orders of dismissal of the respondents passed by incompetent authority on the basis of unfair enquiry, were rightly set aside by the learned Labour Court.
13. It is submitted by Mr.S.M. Yaqoob, the learned representative for the appellants that the appellant factory is no more functioning as it has been sold out to HINO PAK., as such, the respondents could not be reinstated. He had placed his reliance on a case Nisar Ahmad Siddiqui v.
Hostelleries De France, Karachi, reported in 1987 PLC 178. In that case, as the establishment was closed by the management and the employees could not be reinstated into service, but, such employees were held entitled to wages and other dues. It was suggested to Mr.S.Raza Hassan that Messrs HINO PAK., was joint venture of Republic Motors and other companies to which he replied in negative but, in the same breath he admitted that he had no knowledge whether it was a joint venture or not. He had further stated that the property of the appellants was sold to HINO PAK. He has also admitted that there was a Golden-in-shake in the Republic Motors. He has also shown ignorance whether the, workers of the appellants were working in the HINO PAK. MOTORS. It appears from his statement that either the workers had resigned because they were given extra benefits by way of Golden-in-shake or they were transferred to Hino Pak. Motors. However, it is admitted that the factory of the appellants was sold but still the office was working. Respondent Naimatullah Bukhari admittedly was doing clerical job and respondent Ajeeb Gul was also doing clerical job as Typist. Thus, both the respondents were office workers and not factory workers.
14 . Mr. S.M. Yaqoob, the learned representative for the appellants .Has further submitted that the cases had been lingering on for nearly 6 years mainly due to delaying tactics of the respondents and as such they should not be allowed back benefits for such a long period. Admittedly, the respondents were removed from service on 124-1984; whereas they were ordered to be reinstated in service by the learned Labour Court by order, dated 24-10-1989. Thus, they have been awarded back benefits for nearly 6 years. Alongwith the affidavit-in-evidence of Naimatullah Bukhari, has been produced one application moved to the President of Pakistan seeking his intervention and another application moved to the Secretary, Labour Department has also been produced seeking his intervention with regard to illegal activities of the management. The Diary sheet also shows that various dates were taken by the parties to negotiate for a settlement. The respondents in their affidavit-in-evidence as well as in their applications have not categorically stated that they were sitting un-employed. In the grievance applications they had prayed for back benefits, but, in their affidavits-in-evidence, they had not specifically prayed for back benefits, but, they had only prayed for reinstatement. Of course in para 2 of affidavit-in-evidence they had stated that whatever had been stated in their main grievance applications may be treated as part of the affidavits. Keeping in view all the above circumstances and the fact that the factory of the appellants which was the main source of their income was no more functioning, I would reduce the payment of back benefits to the respondents to 50% (fifty per cent only). In this respect, Mr.S.M.
Yaqoob, the learned representative for the appellants has placed his reliance on a decision of this Tribunal, reported in 1974 PLC 287 wherein it is held that where the matter remained pending before Court for over one year, the employer, in circumstances, should not be penalized to pay full back wages. This Tribunal allowed compensation for six months' wages only.
15. With above modification, both the appeals are dismissed. However, the appellants are at liberty to initiate a fresh enquiry through another impartial and independent Enquiry Officer, if they so desire, on the charge-sheet, already communicated to the respondents within three months.