DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, IV at Karachi dated 9-1-1991 whereby the grievance petition of the appellant was dismissed.
2. The brief facts of the case are that the appellant was admittedly a workman working with the respondent's establishment. On 5-1-1989 he is alleged to have misbehaved with Jobber Munsif Shah and used abusive language against him. He was charge-sheeted for said misconduct on 7- 1-1989. On 25-1-1989 he was also charge-sheeted for misconduct of remaining absent without leave for more than 10 days from 11-1-1989. The appellant replied to both the charge-sheets, but the replies were not found satisfactory and therefore by letter dated 16-1-1989 Mr. Wajid Khan Labour Officer of the respondent's establishment was appointed as an Enquiry Officer with regard to first charge-sheet. In the charge-sheet dated 25-1-1989 also Mr. Wajid was appointed as an Enquiry Officer vide letter dated 5-2-1989 to enquire into the charges. He held separate enquiries. By his reports dated 18-2-1989 which are Annex-tires R/1 and R/3 to the statement of Wajid Khan, he found the charges proved against the appellant, and consequently the appellant was dismissed from service vide order dated 19-2-1989. After serving grievance notice upon the respondent, the appellant filed grievance petition before the learned Labour Court.
3. I have heard Mr. Farid Gul Khan learned counsel for the appellant and Mr. A. Hafiz learned counsel for the respondent and I have also gone. Through the record and proceedings of the case.
4. The services of the charge-sheets and notices of enquiries are admitted by the appellant. It is also admitted by him that he did not attend the enquiry proceedings and therefore did not cross- examine the prosecution witnesses before the Enquiry Officer. The contention of the appellant is that he was not allowed to enter the factory premises in order to attend the enquiry and examine himself or to produce his defence witnesses. There is word of the appellant supported by word of his witness Allauddin, that the appellant was not allowed to enter the premises of the respondent since 4-1-1989 as against the word of Mr. Wajid Khan, who states, that the appellant had stated in the reply to the charge-sheet dated 7-1-1989 that he was not being allowed entry in the mill and therefore he had made enquiry in respect of that plea from gate chowkidar which is on the record of the enquiry proceedings. The enquiry papers show that the Enquiry Officer had examined the Chowkidar on 24-1-1989, who stated that the appellant had not come on duty up to 11-00 a.m. The enquiry was therefore adjourned. Chowkidar Muhammad Aslam was also examined on 4th February, 1989 and he also stated that the appellant had not come upto 11-00 a.m. The enquiry was again adjourned to 14th February, 1989. On 14th February, 1989 also Chowkidar Abdul Bari was examined who stated, that the appellant had not come to the gate. Similarly Chowkidar Amir Hussain was examined on 16-2-1989. He stated that the appellant did not come at the gate upto time his evidence was recorded. The record shows that the statement was recorded at 11-00 a.m.
The enquiry was adjourned to 12-30 p.m Again the enquiry was made from gate-keeper Amir Hussain, who stated that the appellant had still not come to the gate.
5. Mr. Farid Gul Khan has contended that the person who signed the Written Statement was not examined in the Labour Court and therefore the contents of Written Statement cannot be taken as evidence against the appellant and consequently his word that he was not allowed to enter the premises has to be believed. He has relied upon the case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 where their Lordships have held that "Written statements cannot be the exhibits in a case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case. Written Statement cannot be an exhibit if defendant dies without being examined". This view has been followed by this Tribunal in number of cases. Reference may be made to the cases reported in 1990 PLC 460, 1990 PLC 63, and 1990 PLC 429. In all these cases no other evidence was found to rebut the case of the workman, except the Written Statement which was not considered as evidence. In case of M/s. Kapadia Transport Company Limited, Karachi v. Labour Union 1975 PLC 839 it was observed that the "signatory of Written Statement need not necessarily appear in witness box, if some other witness appears to support written statement." In case of S. Pervez Akhtar v. M/s. General Tyre and Rubber Co. Of Pakistan Ltd. Being Appeal No, KAR161/1989, decided on 26-9-1989, this Tribunal had upheld the order of the learned Labour Court dismissing the petition of the workman even when the signatory of Written Statement was not examined but Enquiry Officer was examined to prove the case of the respondent and also to give opportunity to the appellant to prove his allegations. In the instant case the Enquiry Officer has been examined. He was cross-examined and he stated that he had examined gate-keeper. I have already discussed the evidence of gate-keepers of respondent examined before the Enquiry Officer. Their evidence shows that the appellant had not appeared at the gate on dates of enquiry proceedings. Therefore it cannot be said that apart from the Written Statement, there is no evidence on the record to rebut the evidence of the appellant and to enable the Labour Court and this Tribunal to come to a finding as to whether the appellant was not allowed to enter the factory premises.
6. It is contended by Mr. Farid Gul, that evidence of appellant is supported by witness Allahuddin.
Allahuddin is unable to produce any evidence to show that he was working with the respondent during November or Decemebr 1988 and January 1989. On his own statement, he was removed from service on 4-1-1989. Whereas appellant was charge-sheeted on 7-1-1989 and 25-1-1989 and enquiries were held after these dates. He admits that appellant was neither his friend nor neighbour. Under these circumstances it does not appeal to reason as to why instead of looking after his livelihood he accompanied the appellant to the respondent mill from 4-1-1989 to 19-2- 1989. His evidence has rightly been disbelieved by the learned Labour Court.
7. It leaves with the evidence of the appellant that he was not allowed entry into the premises of the respondent mill. He has produced one application Annexure-D to his grievance petition which is dated 11-2-1989 in which he has alleged that he had gone to enquire about his salary but he was told that he was leader and could be removed from service. He further stated that on 4th January, 1989 in his absence the gear of machine was broken and when he came to the mill he found the broken pieces of the machine gear and that his gate pass was taken from him. He states that he did not go to the mill due to reason beyond his control for the first time and that second time the Jobbers and Managers asked him to settle his accounts, which he refused and then he was threatened that if he did not take his account he would be removed from duty. He has never alleged even in this application that he was gate stopped when he went to attend enquiry. He admits that he did not send copy of his application to the respondent. No application has been produced to show that he complained to the Management of respondent, that he was not being allowed to enter the gate. He has admitted in his cross-examination that there was no previous dispute or enmity of him with any one in the Management of the respondent mill and there is no union of the Labour in the said mill. Thus there appears to be no plausible reason as to why the appellant should have been victimised or should have been disallowed to defend himself in the enquiry proceedings. Neither in his application Annexure D nor in his affidavit in the Labour Court he has named the particular person who had gate stopped him. As already pointed the evidence of gate keepers shows, that he did not come to the mill on the dates when the enquiry was conducted. Therefore the learned Labour Court has rightly disbelieved him that he was gate stopped and that he was not allowed to participate in domestic enquiry.
8. Mr. Farid G ul has relied upon the letter of Assistant Director, Labour East Division dated 12-3-1989 in reference to his complaint against the respondent. This letter dated 12-3-1989 is after the appellant was dismissed from service on 19-2-1989. This letter was not produced before the Labour Court. This letter does not show as to what was the complaint of the appellant or the date of such complaint. This letter does not show, that its copy was sent to the respondent. The Assistant Director was not examined by the appellant before the Labour Court to produce the alleged reply% of the respondent or complaint made by appellant to the Labour Directorate. Therefore this letter does not help the appellant in any way.
9. It is contended by Mr. Farid Gul that appellant was not given copy of enquiry report and opportunity of defence to show cause against the order of dismissal. In his support he has relied upon 1973 SCM R 455 wherein it has been held that "workman should be furnished with copy of inquiry report against him and should also be given an opportunity to show cause against order of dismissal". However in the subsequent decision in the case of Dawood Cotton Mills v. Guftar Shah and another PLD 1981 SC 225 their Lordships have held that "from the provision of Standing Orders 15(4) as is worded, neither the requirement of the second show-cause notice nor of supplying a copy of the report can be spelled out". It was further held "that as the rules of natural justice are not embodied in the rules therefore compliance was only needed to the extent to which such rules are incorporated in the statute." The aforementioned case of Punjab Road Transport Corporation v.
Punjab Labour Appellate Tribunal, Lahore and others as reported in 1973 SCM R 455 was considered by their Lordships in the case of Guftar Shah. Their Lordships have held, "the observation must be understood in the context of the peculiar facts of that case and does not lay down the broad principle that they form part of the rules of natural justice or for that matter to be spelled out from the provision under consideration". In view of this legal position this argument of Mr. Farid Gul does not have much force.
10. Mr. Farid Gul has further contended that the respondent did not. Examine any of the witnesses in enquiry before the Labour Court. He has relied upon certain decision of this Tribunal reported in 1990 PLC 460 where the order of dismissal was set aside by this Tribunal because members of checking party were not examined before the Labour Court. In that case the workman was alleged to have recovered bus fare from certain persons without. Issuing tickets: These ticketless travellers were not also produced before the Enquiry Officer. Therefore under these circumstances of the case this Tribunal held that without examining the members of checking party mere production of enquiry report containing statements of witnesses without examining them before the Labour Court could not be sufficient proof of alleged charge otherwise denied by the accused.
11. It is also contended by Mr. Farid Gul that charge is vague as exact words of abusive language are not mentioned in the charge-sheet.
12. Mr. A. Haliz has relied upon decision of this Tribunal in the case of Muhammad Hussain v. M/s. Gul Ahmed Textile Mills Ltd. 1981 PLC 203 where this Tribunal held as under:-- "If a workman uses filthy and abusive language it would neither be necessary nor desirable that these abusive and filthy words should be repeated in the charge-sheet. The requirement of clause
(4) of Standing Order 15 is merely to bring to the notice of the offending workman the misconduct in respect of which it is decided to take disciplinary action against him."
13. I have perused the enquiry papers, the evidence before the Enquiry Officer which has proved the charges against the appellant.
14. Considering all the facts and law discussed above, in my opinion, there' is no merit in this appeal which is accordingly dismissed.