DECISION ' This is an appeal against the order,dated 5-4-1990, passed by the learned Presiding Officer, Sindh Labour Court No,IV at Karachi, whereby the grievance petition of the appellant was dismissed.
2. I have heard Mr. Khalilur Rehman, the learned Representative for the appellant and Mr. Shakeel Lari, the learned Advocate for the respondents and have also gone through the record and proceedings of the case.
' The brief facts of the case are that the appellant was working with the Respondents as Crew Assistant. He was also Joint Secretary of the Respondents' Staff Union which was C.BA. On 17-4- 1989, he was charge-sheeted that in the intervening night of 17th March, 1989, in connivance and collusion with members of other Airlines Staff and other persons, he brought inside the restricted area of the Karachi Airport through the Freight Gate four suit-cases containing charas and subsequently loaded the said suitcases on PR Flight PU 723 for Sydney and that he was arrested by the Customs Authorities for offence under section 2(s) of the Customs Act and later bailed out and that his conduct was to be constituted as subversive of discipline and dishonesty towards the Airline/Company. In his reply to the charge-sheet, the appellant had denied the allegations but had admitted his arrest by the Customs Authorities. His explanation was not found satisfactory, therefore, Mr. Tahir Rizvi, Assistant Station Manager was appointed as Enquiry Officer. Mr. Tahir Rizvi found the appellant guilty of the charges and consequently he was dismissed from service by order, dated 29-5-1989. Aggrieved by this dismissal order the appellant served grievance notice upon the respondents and then filed the grievance petition.
4. Admittedly, no witness was examined by the management to prove the charge against the appellant. Mr. Tahir Rizvi gave his findings of his guilt on the ground that the charges stood proved from the F.I.R. And because the appellant failed to appear before the Enquiry Officer to participate in the enquiry, therefore, presumption would arise that he had nothing to say against the charges, therefore, the charges would be held to have been proved.
5. It appears, that the Enquiry Officer has shifted the burden of proof upon appellant. It is contended by Mr. Shakeel Lari, the learned Advocate for the respondent that the F.I.R. And the statement of the appellant before the Customs Authorities which was confessional proved his guilt, therefore, it was not necessary for the management to produce any further evidence. In support of the contention, Mr. Lari was not able to produce any law or any authority. Mr. Khalilur Rehman, the learned Representative for the appellant on the other hand contends that the procedure adopted by the Enquiry Officer was not only against the principles of natural justice, but, also against the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, which lays down the procedure for the removal of the workman on the ground of misconduct. In support of his contention he has relied upon certain authorities which will presently discuss.
6. In the case of Vice-Chancellor, University of Punjab and 2 others v. Muhammad Zahur Nasir, reported in 1985 SCMR 802, a candidate who was disqualified for cheating in examination by making deliberate previous arrangements; had made positive request that he should be confronted with the concerned officials who were responsible for tabulation of result but, request was rejected. Therefore, it was held by their Lordships that he was not given an opportunity of hearing and, therefore, the order of disqualification passed by the Disciplinary Committee was set aside holding it against the principles of natural justice. In the case of Messrs Dawood Cotton Mills v. Guftar Shah, reported in PLD 1981 SC 225, their Lordships of the Supreme Court had observed that the requirement of Standing Order 15(4) was to give intimation of alleged misconduct and an opportunity, to explain circumstances alleged against the workman and to defend himself by cross-examining witnesses and examining himself or any other witnesses in defence. In the case of the Punjab Provincial Cooperative Bank Ltd. v. Ataur Rehman, reported in 1988 PLC 525; learned Labour Appellate Tribunal, Punjab, has held that confessional statement cannot be used against employee unless proved to have been executed by him voluntarily. In the case of Amin Jan v.
Messrs N.V. De. Meyor Zelzate, reported in 1980 PLC 294; this Tribunal has held that the domestic enquiry must be held in such manner as to afford accused fair and reasonable opportunity of defence and the onus was upon the prosecution to establish misconduct before accused to establish his innocence. In the case of Usman v. Sindh Labour Appellate Tribunal Karachi and Karachi Port Trust, reported in 1984 CLC 2782; learned Division Bench of Sindh High Court at Karachi has held that the conduct of domestic enquiry against workman/employee was governed by rules of natural justice expound by superior Courts and the employer would have the burden to prove truth of allegations in case these allegations are denied by the employee.
7. It would be seen that the burden of proof is upon the employer as held in the abovementioned citations. However, in the instant case, as pointed above, no witness has been examined by the prosecution to prove the guilt of the appellant. Even the F.I.R. Or the alleged confessional statement of the appellant before the Customs Authorities has not been proved through the person who recorded them. The statement of the accused before the Customs Officer would not be admissible in evidence. There is no evidence to show that the accused had given the statement without fear or any inducement. The FIR, per se is no proof of guilt. The procedure adopted by the Enquiry Officer was not warranted by law or under the principles of natural justice. The dismissal order based on such an enquiry was not tenable. I, therefore, allow the appeal and set aside the impugned order of the learned Labour Court and also the order of dismissal passed against the appellant and order the reinstatement of the appellant. As the order of dismissal is being set aside on technical ground, I allow him 50% (fifty per cent) of the back benefits. However, the respondents would be at liberty to hold fresh enquiry in accordance with the rules against the appellant on the same charges. If they so desire, and complete it within 3 months. In case the respondents decide to hold fresh enquiry, the payment of back benefits would be dependent on the result of the enquiry, but, would be payable to the appellant in case the fresh enquiry is not completed within 3 months, unless time is extended by this Tribunal on account of any act of omission or commission which caused delay in the completion of the enquiry. The order of the Tribunal is to be complied with within one month.