DECISION ' This is an appeal against the order, dated 13-4-1987, passed by learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated with all consequential benefits.
2. The brief facts of the case are that respondent was admittedly a workman employed by the appellant. On 29-11-1984 he was charge-sheeted with certain acts of misconduct and after enquiry he was dismissed from service vide order, dated 24-1-1985. After serving grievance notice upon the appellants the respondent filed grievance petition in the learned. Labour Court alleging therein that he has been victimised because of trade union activities, that the charges against him were false and further that the Enquiry Officer did not act impartially or fairly. The appellants resisted grievance petition on the ground, that the respondent was rightly dismissed after the charges were proved against him in a fair enquiry. They deny the allegation of victimisation.
3. I have gone through the written arguments filed by Mr. Mehmood Abdul Ghani, learned representative for the appellants and Mr. M. Bashir Awan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
4. The respondent was charge-sheeted on 29-11-1984 wherein it was alleged that on 27-11-1984 due to his negligence Quality No, 1133 Export Quality, which he had checked and had got packed for export, was re-checked and found to be fully damaged for which he and Head Damage Checker Muhammad Akram were asked to explain as earlier also they had committed such negligence for which they were charge-sheeted on 21-4-1984. It was further alleged therein that due to above reason the respondent alongwith the said Muhammad Akram stopped Weaving Master at the gate, misbehaved with him, used abusive language, threatened him and tried to assault him but he was rescued by Ejaz Rasool, Muhammad Amin and others, thus he committed misconduct as defined under Standing Order 15(3)(h) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the 'Ordinance'). The respondent denied the charges and Mr. Zahoor. Ahmed, Labour Officer, was appointed as 'Enquiry Officer'.
5. The Enquiry Officer examined witness Sabir Hussain Siddiqui, Weaving Master, who was assaulted and he has fully supported the charges against the respondent. The Enquiry Officer also examined Khalil Ahmad, Muhammad Amin and Ejaz Rasool who have also supported Sabir Hussain Siddiqui and stated that respondent was abusing Weaving Master Sabir Hussain Siddiqui. All these witnesses have been duly cross-examined by the respondent, who has also signed each and every page of their statement. The enquiry papers further show that the respondent examined himself denying the charges and in his defence examined Hashmat All and Muhammad Khalid. Both the witnesses state that the respondent was with them in the canteen from 12-30 upto 1-15 p.m. The Enquiry Officer Mr. Zahoor Ahmed has been examined before the learned Labour Court and nothing has come in his cross-examination to show that he acted unfairly or impartially. In fact on certain dates the enquiry was adjourned at the request of the respondent who was also supplied with copies of statements of witnesses.
6. In the cross-examination of prosecution witnesses before the Enquiry Officer the respondent has not been able to shake their evidence with respect to his alleged misbehaviour or use of abusive language towards Weaving Master. In his statement he denied the charges but admitted that he was charge-sheeted on 21-11-1984 for a similar charge and further alleged that he was refused leave on 3-10-1984 by the Weaving Master. He also alleged that he has been implicated because he was elected as `Naib-Saddar' (Vice-President) in the General Body Meeting held on 24-8-1984 and he moved application for registration of Union on 19-9-1984. He also pleaded that he was with Muhammad Akram and Khalid in the Canteen at the relevant time. The witnesses Hashmat Ali and Muhammad Khalid only supported him to the extent, that he was with them in the canteen. Both of them admit that since 1-1/2 years all four of them Akram, Hashmat Ali, Muhammad Khalid and respondent used to take lunch together at the Canteen. Muhammad Khalid, however, admitted that on that day he had not come on duty, but had come to obtain leave.
7. In the cross-examination the respondent admitted in Labour Court that he was 'Vice-President' of the 'Modern Textile Mills Employees Union' which was registered in October, 1984. He further admitted, that his 'Union' was elected as `C.B.A.' on 13-3-1985.
8. The learned Labour Court came to the conclusion that the charges were not proved against the respondent because no independent person was produced by the prosecution. It is not necessary for the management to examine all the witnesses. However, witness of appellant has stated that no worker was willing to give evidence, which does not appear unbelievable in view of the fact that the respondent was office-bearer of a Union. Even otherwise the standard of proof required in the domestic enquiry and its appreciation is not as strict as in the criminal cases where charge has to be proved beyond any reasonable doubt.
9. The respondent was not able to show any personal enmity of complainant Sabir Hussain Siddiqui with the respondent so that he might file false complaint against him. His allegation is that Sabir Hussain Siddiqui has implicated him at the instance of management who wanted to victimise him because of union activities. Nothing has come on record to show his activities due to which the management tried to victimise the respondent. It may also be pointed out that the respondent was dismissed from service vide order, dated 24-1-1985, whereas the trade union, of which he was elected as Vice-President, was elected as `CBA' after his dismissal viz. In March, 1985. The respondent also admitted in cross-examination that during this period there were no negotiations between their union and the appellants and therefore it cannot be said that there was any activity on the part of the respondent or the union, to motivate the management to take action against him. There is also nothing on record to show that the other office-bearers of this union were victimised. In fact the business of the union is mainly conducted by the President and the General Secretary. The 'Vice-President' generally is not so active in the conduct of the affairs of the union. If the appellants had desired to victimise office-bearers of the Union, their first target should have been General Secretary or the President and not the Vice-President. The period for which the respondent was suspended is, no doubt, more than the period allowed under the Standing Orders, but that would not vitiate the enquiry or the proceedings.
10. Mr. Muhammad Abdul Ghani has submitted that under subsection (5) of section 25-A of I.R.O., 1969, the Labour Court has, no doubt, powers to go into all the facts of the case and may pass any order as may be just and proper in the circumstances of the case but he submitted that scrutiny to be conducted by the Labour Court under this subsection is of restricted nature. The Labour Court has only to see if the principles of natural justice have been complied with in the enquiry, whether charge was brought to the notice of the workman within the period of limitation, whether he was given opportunity to defend himself and whether there was any evidence on record on which Enquiry Officer could reasonably have come to the conclusion that the respondent was guilty and further whether the respondent had been able to prove his innocence before the Enquiry Officer. In support of his contention he relied upon certain case-law which I will presently discuss.
11. In the case of Barza v. Star Textile Mills Ltd. 1984 PLC 576 this Tribunal had held 'the principles and standard of appreciation of evidence and quantum of proof required for domestic enquiry was not same as in criminal prosecution'.
12. In the case of Javed Akhtar v. Executive Vice-President, United Bank Limited and others 1978 SCM R 212, the petitioner workman participated in the enquiry by cross-examining employer's witnesses and by examining himself and signed statement indicating his desire to produce no evidence. It was held by their Lordships that 'no rule of natural justice was violated and that Enquiry Officer conducted enquiry in accordance with law relating to subject and held it in fair and reasonable manner, therefore no exception could be taken to the order of dismissal of service, based on such enquiry particularly when petitioner could not explain why he illegally kept monies belonging to respondent bank for over six months.'
13. In the case of Punjab Road Transport Board, Lahore v. Fazal Elahi and another 1977 PLC 148, the learned Single Judge of Lahore High Court held:- "The factual part of a domestic enquiry by the employer is open scrutiny by the Labour Courts only to the limited extent indicated and if they at all undertake such a reappraisal they should be well- advised to inform themselves of the rules, instructions and the working methods of the Establishment in order to understand the full implication and the background in which such findings of fact have been recorded. To apply the abstract principles of standards of criminal prosecution or of a civil litigation to such proceedings in the absence of such knowledge would be doing violence to the whole infrastructure of the labour laws."
14. In the case of Muhammad Baig v. Mirpurkhas Sugar Mills Ltd. 1980 PLC 178, this Tribunal held that 'Labour Court could go into all questions of fact and reappraise evidence but scope of scrutiny was limited. Principles or standard of criminal prosecution or civil litigation cannot be applied to the domestic enquiry. Appreciation of evidence and view taken by the Enquiry Officer cannot be wholly disregarded unless evidence produced was unreliable, insufficient or findings were result of bias.
When enquiry was found impartial and findings based on sufficient evidence interference in circumstances was rightly refused by Labour Court.
15. The other two grounds that weighed with the learned Labour Court were that Mr. Ramizuddin who passed order of dismissal was not competent to pass such order and further that he admittedly considered the past record of the respondent including various charge-sheets and warnings while passing the impugned dismissal order. Mr. Ramizuddin has stated on oath that he was competent to appoint, discharge and remove all classes of employees except those who used to sign muster roll. Standing Order 15(4) does not require the order of dismissal should be passed by the employer but only it says that the approval of employer shall be required in every case of dismissal. Neither it is alleged nor it has come in the cross-examination of any of the appellant's witnesses, that approval of the employer was not obtained nor it can be presumed that the approval of the employer was not obtained. Under Article 129 illustrations (f) of `Qanun-e- Shahadat, 1984' the Court may presume 'that the common course of business has been followed in particular cases'. The mere statement of Zahoor Ahmad, who is no more in service of the appellants, that his resignation was accepted by Director Administration and Director Administration was only person competent to remove the employee of the appellants would not prove that Ramizuddin had no power to remove the respondent. It may also be pointed out that at the time when Ramizuddin was examined, he was not the employee of the appellants. He had categorically stated that he was competent to appoint and remove all the employees except those who used to sign the muster roll. His evidence would show that at least two authorities were competent to remove the employees. One authority could remove those employees who signed the muster roll and that authority might be Director Administration and the other authority was Mr. Ramizuddin who could remove the employees, who did not sign muster roll. There is no evidence to show, that the respondent used to sign the muster roll. Under the circumstances I do not find substance in this objection that Ramizuddin was not competent to remove the respondent. It may also be pointed that in the grievance petition the respondent has not raised the plea that Mr. Ramizuddin was not competent to remove him.
16. It leaves us with the admission of Mr. Ramizuddin in the cross-examination that he did take into consideration the previous record and earlier charge-sheets and warnings of the respondent while passing order of dismissal. In the charge-sheet the factumd of previous charge dated 21-11-1984 is mentioned and therefore respondent was made aware of this charge-sheet. However, this admission alone would not vitiate the order, which in fact was passed, on the basis of report of Enquiry Officer.
17. I have already pointed out that all the principles of natural justice have been observed. The respondent was given due opportunity to cross-examine the witnesses of the prosecution and to examine himself and his defence witnesses. He has signed each and every page of these proceedings. Before the order of dismissal was passed he was given 'second show-cause notice'.
There is evidence of Weaving Master and three other witnesses which shows, that the respondent did commit the act of misconduct and used abusive language, which conduct was of highly subversive of discipline and amounted to riotous and disorderly behaviour. The respondent's witnesses only give him alibi. These witnesses are admittedly his friends. They have been taking lunch together for years. One of them in fact, had no reason to be present as he was on leave. The motive for commission of alleged misconduct is not disproved by these defence witnesses as they, are silent about it. It cannot be said that the Enquiry Officer came to the conclusion of the guilt of the respondent without any evidence. Under the circumstances the order of dismissal passed on such report cannot be set aside only because the Officer who passed the dismissal order had taken into consideration his previous record.
18. In the case of National Tobacco Co. Of India Ltd. And others v. Fourth Industrial Tribunal and others 1960 PLC 439 a learned Single Judge of Calcutta High Court held:- "Where conduct of the clerks was subversive of all discipline and where such conduct has been proved it can only be characterised as gross misconduct and the only possible punishment would be dismissal. The fact that the clerks concerned had a clean record would only make it all the more regrettable when there was no regret expressed on their behalf and attempts are made to justify their conduct. It is impossible to expect the employer to keep in his employment persons who are capable of taking law into their own hands, and are guilty of boisterous and violent acts of indiscipline which exceed the limits of decency and good conduct."
' The learned Single Judge of Calcutta High Court further observed:- ' Victimization means one of two things: The first is where the workman concerned is innocent and yet he is being punished because he has in some way displeased the employer. The second case is where the employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence simply because he has incurred the displeasure of the employer. But, where it is found that the workman is guilty of gross misconduct then there cannot be any question of victimisation because it merits dismissal by itself. The workman in this case having been found guilty of gross misconduct which by itself merits dismissal, there is no scope for applying the principles of victimisation."
19. In view of the aforesaid discussions I am of the opinion that the order of dismissal was passed by the management after a fair enquiry was held and was based on evidence on record. I, therefore, allow the appeal and set aside the impugned order of the learned Labour Court.