DECISION ' This is an appeal against the order dated 13-4-1980 passed by the learned Presiding Officer, Sindh Labour Court No, I at Karachi, whereby grievance petition of the respondent was allowed and he was ordered to be reinstated with back benefits.
2. This appeal was first decided by this Tribunal on 17-8-1980, whereby the appeal of the appellant was allowed and the order of the learned Labour Court was set aside on the ground that the respondent being a `Chowkidar' was not a workman. The respondent filed Constitution Petition D- 1437 of -1980 which was decided by the learned Division Bench of Sindh High Court at Karachi by order, dated 28-1-1982, whereby order of this Tribunal was set aside and the case was remanded back to this Tribunal for fresh decision after' allowing the parties to produce evidence to prove nature of the duties of the respondent. After remand this Tribunal again by order, dated 29-8-1982, held the respondent not to be a workman and allowed the appeal of the appellants. Against this order the respondent filed Constitution Petition D-909 of 1982 which was decided by the learned Division Bench of Sindh High Court at Karachi vide order, dated 17-1-1985, whereby the respondent was held to be a `workman' and the order of this Tribunal, dated 17-8-1980, was set aside and the appeal was remanded back to this Tribunal for deciding it on merit. The appellants filed Civil Appeal No, 335-K of 1988 in hon'ble Supreme Court of Pakistan. During the pendency of appeal in the hon'ble Supreme Court the proceedings before the Tribunal were stayed. The appeal was decided by the Hon'hle Supreme Court vide order, dated 3-7-1991, whereby the appeal of the appellant was dismissed and order of the learned Division Bench of High Court holding the respondent to be a 'workman' was upheld.
3. I have heard Mr. Muhammad Humayun, learned Advocate for the appellants and Mr. M.L.
Shahani, learned counsel for the respondent and have also gone through the record and proceedings of the case.
4. The brief facts of the case appear to be that the respondent was admittedly a `Chowkidar workman' working in the appellant factory at the relevant time. On 16-6-1977 the respondent was charge-sheeted with the following charges:-- "(1) On June 15th, 1977, at about 15-05 hours, you left your work place unauthorisedly and joined the workers who were raising indecent slogans, shouting, and using abusive language.
(2) You were in the forefront leading the workers to the General Office w'nere the Production Manager was present in a riotous and disorderly manner."
' After domestic enquiry in which he was allegedly found guilty the services of the respondent were terminated vide order, dated 3-10-1977 Exh. 3-K. After senrving grievance notice upon the appellants the respondent filed grievance petit ion before the learned Labour Court.
5. It appears from the record that certain incidents allegedly took place in tl ae factory premises of the appellants on 15th and 17th of June, 1977 over the transfer of Mr. Aleem, an employee of the company from Karachi to its fact ory at Jam Shoro. With regard to above incident the present respondent as welll as two other workmen namely Saeed Butt and Bashir Ahmed were charge- sheeted separately. Separate enquiries were held against the three accused persons and all the three were dismissed from service. All the three filed grievance petitions before the learned Labour Court which were disposed of by single order, dated 13-4-1980, which is impugned in this appeal.
Only grievance petition of the present respondent was allowed by the learned Labour Court while grievance petitions of other two workers were dismissed. Against this decision three appeals were filed before this Tribunal which were also disposed of by single order, dated 18-8-1980 whereby appeal against the respondent was allowed on the ground mentioned above, while the appeals of two other work men Saeed Butt and Bashir Ahmed were also allowed by this Tribunal holding, that the Enquiry Officer was neither fair nor impartial and it was not possible to rely on the enquiry proceedings and enquiry officer's report on the basis of which dismissal orders were issued. There is no evidence to show that this decision of Tribunal with regard to two other workmen was challenged before the High Court. From order of this Tribunal, dated 17-8-1980, it appears that during the enquiry against two other workmen police was present in the factory when enquiry was being conducted. This Tribunal observed: 'The presence of the police in the factory, called at the instance of the management, was bound to have an inhibitory effect on the witnesses in giving evidence considered favourable to the appellants.' Consequently this Tribunal held that enquiry against two workmen was not fair and impartial.
5. In enquiry against Bakht Rawan, the present respondent, Mr. Muhammad Abdul Rasheed, Enquiry Officer had denied suggestion in the cross-examination, that there was police present outside the enquiry room. However, one Faiz Ahmed, who was examined by the respondent as witness before learned Labour Court, stated that he was working as Storekeeper with the appellants and that at the time enquiry was conducted the police was sitting outside the enquiry room. It may be pointed out that his statement that the police was present outside the enquiry room has not been specifically challenged in the cross-examination. The Enquiry Officer has further admitted that Dr. Shah who had filed complaint against the respondent did not produce the copy of the complaint during his evidence before him. Mr. A.G. Shaikh, Personnel Manager of the appellant factory had admitted in the cross-examination that he had no personal knowledge as to what had happened on 15-6-1977, but he received two complaints from Mr. Dr. Shah, one on 15-61977 and the other on 16-6-1977. However, he could not produce the complaint.
6. The learned Labour Court while commenting on the enquiry proceedings has observed:-- "The findings of the Enquiry Officer are that the charge against the applicant Bakhtrawan has been proved but there are two things which must be taken into consideration in this regard. Firstly he is not associated with the happenings of earlier part of the day on 15-6-1977 in which the other two applicants are involved. He comes in the picture only in the afternoon incident which is said to have occurred at 15-05 hours. Secondly, the attendance card confirmed that he had reported for duty at 14-49 hours and it is difficult to conclude that he at once joined the other workers and took part in the incident at 15-05 hours as alleged. The abovenoted two factors lead me to the conclusion that appreciation of the evidence by the Enquiry Officer does not appear to be correct."
7. On careful consideration of the evidence on record I am inclined to believe witness Faiz Ahmed with regard to his statement that police was present outside enquiry room when enquiry was being conducted against the respondent. I have already pointed out the observations of this Tribunal with regard to the presence of police at the instance of the management while enquiry was being conducted against two other workmen. I do not think that management would have made exception by not calling the police when the enquiry was held against the respondent. The enquiry conducted under such circumstances cannot be considered as fair and impartial.
8. I also agree with the view of the learned Labour Court that it was difficult to conclude that when respondent arrived at his duty at 14-49 hours he at once joined the other workers and took part in the incident at 15-05 hours as alleged.
9. For the aforesaid reasons I find no merits in this appeal which is dismissed. The order of learned Labour Court reinstating the respondent with back benefits is maintained. The order to be implemented within one month, if not already implemented.