DECISION ' This is an appeal against order of learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, dated 12-4-1987, whereby grievance petition of the respondent No, 1 was allowed and he was ordered to be reinstated in service with full back benefits.
2. I have gone through the 'written arguments' filed by Mehmood Abdul Ghani, learned Representative for the appellants and Mr. M. Bashir Awan, learned Advocate for the respondent and have gone through the record and proceedings of the case.
3. The brief facts of the case appear to be, that on 13-6-1985 the respondent was charge-sheeted with certain acts of misconduct allegedly committed by him on 11-6-1985 at about 3-00 p.m.
Domestic enquiry was held, in which the respondent was found guilty and therefore was dismissed from service vide order dated 18-7-1985. Aggrieved by this dismissal order, the respondent served 'grievance notice', dated 20-8-1985 upon the appellants, failing to get redress he filed his grievance petition.
4. The main contention of the respondent was, that the appellants had removed about 400 workers from the establishment, including the respondent, but they were all reinstated on the intervention of the Labour Department. It is alleged, that because of the aforesaid reason, the appellants had victimised the respondent by issue of false charge against him. He also attacked the partiality and fairness of the Enquiry Officer as well as enquiry proceedings. The respondent claimed to be 'president' of the `CBA Union' and contends that because he served 'Charter of Demands' that was also why he has been victimised. On going through record of enquiry proceedings produced before the Labour Court, it appears, that proceedings were held ex parte as the respondcnt is said to have remained intentionally absent. All the witnesses of the management in the enquiry appear to have been examined on 14-7-1985 and 'enquiry report' was issued on 15-7-1985 by Mr. Abdul Rasheed, Enquiry. Officer. Mr. Abdul Rasheed has been examined by the appellants. The respondent is alleged to have been informed about the date of hearing, vide letter, dated 10-7-1985 Exh. R/6 which was sent by 'Registered Post Acknowledgment Due'. The Postal Receipt has been filed as Exh.
R/7 and Acknowledgment Receipt as Exh. R/8. The respondent was confronted with this A/D Receipt but he denied his signature upon the A/D Receipt. The respondent produced two documents Exhs.
A/4 and A/5 which also require consideration. In Exh. R/4 which is addressed to Enquiry Officer the respondent requested for copies of statements of witnesses so that he may cross-examine them.
The Enquiry Officer, in cross-examination, denied to have received this application. In Exh. A/5 it is alleged that Enquiry Officer did receive Exh. A/4 and it also expressed doubts about impartiality of the Enquiry Officer. This letter is acknowledged by the appellants in their letter, dated 16-7-1985, which is produced as Exh. R/9. It shows that the letter, dated 11-7-1985 sent by registered post was received by them on 15-7-1985 but respondent's objection was rejected.
5. In the face of denial by the respondent of his signature on `Acknowledgment Receipt' Exh. R/8 it was incumbent upon the appellants to prove his signature either by examining the 'Postman' who served the letter Exh. R/6 upon the respondent or by getting his signature compared with the disputed signature by some handwriting expert or at least producing witnesses in whose presence the respondent had signcd Exh. R/8 or who were conversant with his signature and could identify signature of the respondent. No such proof has been adduced by the appellants.
6. Mr. Mehmood Abdul Ghani, learned Representative for the appellants, in his 'written arguments' has relied upon certain admission of the respondent in his cross-examination that he had given application on 144-1985 for extension of time but its copy might be mixed up with any other record.
This application has not been produced. In the same passage, relied upon by Mr. Mehmood Abdul Ghani, of the cross-examination of the respondent, the respondent categorically stated that he did not appear before the Enquiry Officer on 14-7-1985 and Exh. R/8 did not bear his signature. It is not clear whether the application referred to in the cross-examination of the respondent was given by the applicant personally or had been sent through someone else. No such clarification has been obtained from the respondent especially in view of the fact that he had denied knowledge of fact of enquiry or service of letter, Exh. R/6. He has categorically stated that he did not appear before the Enquiry Officer. The mere fact that he moved some application on 14-7-1985 would not raise any presumption that he had knowledge of any date of hearing. It may be pointed out that application A/4 is dated 10-7-1985. The fact that as the complaint of the respondent Exh. A/5 sent by registered post on 11-4-1985 was summarily rejected by the appellants and no opportunity was afforded to the respondent to cross-examine the witnesses of the management would also throw serious doubt about the fairness of the enquiry and Enquiry Officer. The order of dismissal was admittedly passed on 18-7-1985 viz. After the receipt of the letter Exh. A/5 and therefore the management could have re-opened the case and allowed the respondent to cross-examine the witnesses.
7. The 'order of dismissal' based on such enquiry or such enquiry report is not tenable and the order has rightly been set aside by the learned Labour Court.
8. Mr. Mehmood Abdul Ghani, in this context, has relied upon the case of Islamabad Club v. Punjab Labour Court No, 2 and others PLD 1980 SC 307. In that case also the order of dismissal was set aside on the ground that no reasonable opportunity was given to the employee in the domestic enquiry. However, their lordships observed:-- "The authorities of the Islamabad Club are still anxious to pursue the matter, it would clearly be open to them to rescure the proceedings by furnishing a copy of the inquiry report to the respondent and giving him a reasonable opportunity to show cause against the proposed order of dismissal on the grounds fround against the respondent by the Inquiry Officer."
' Reliance is also placed on the case of Steel Corporation of Pakistan Ltd. v. Sherzamin and others 1968 SCM R 355, wherein their Lordships have observed:- "In these cases, the holding of the domestic enquiry ex parte was apparently unjustified, and in refusing permission to dismiss, the Industrial Court should have directed that the enquiry be held afresh after due opportunity to appear and defend had been given to the respondents. These petitions are dismissed with that observation."
' In the case of Muhammad Arshad Khan v. J & P Coats Pakistan Ltd., Karachi and 2 others PLD 1977 Karachi 83, a learned Single Judge of the High Court at Karachi had held "the Labour Court was competent under section 23-A to give direction for holding fresh inquiry".
9. The respondent is charge-sheeted with serious charges. The order of learned Labour Court setting aside order of dismissal of respondent is upheld on the ground that the domestic enquiry did not appear to be fair. Under the circumstances it will be open to the management to hold fresh enquiry on the same charge-sheet though some independent Enquiry Officer in accordance with the principle of natural justice and the provision of Standing Orders Ordinances. Mr. Mehmood Abdul Ghani has also submitted that if the fresh enquiry is ordered the payment of back benefits be made dependent upon the result of such enquiry. He relied upon the case of Mehmood Shah v. Dawood Cotton Mills Ltd. And another 1982 PLC 365, wherein a Division Bench of Sindh High Court at Karachi had upheld the decision of this Tribunal making question of back benefits dependent upon the result of fresh enquiry.
10. In view of the above discussion the appeal is dismissed. The management could, however, if they so desire, hold fresh enquiry on the same charges as observed above but should complete it within four months. The question of back benefits would be dependent upon the result of such enquiry. If no enquiry is held or not completed within the period specified above, the back benefits be released to the workman after due verification, unless the appellants obtained further extension of time for completion of the enquiry if not completed within the specified period due to result of any act of omission or commission on the part of the respondent.