DECISION This appeal calls in question the order of the Labour Court whereby the petitioner was reinstated in service with back benefits. It arises in the following circumstances:-- The petitioner was employed in April, 1979 as an Accounts Assistant, and on 20th of March, 1991 was working with the designation of Swimming Pool Incharge when he,was served with a charge-sheet.
It reads as under:-- "It has been reported that on 20th March, 1991 at 12-30 hours you misbehaved with your Head of Department and that you are in habit of leaving your place of duty and violating instructions given by him.
The above acts constitute misconduct. You are called upon to show cause why disciplinary action should not be initiated against you. Your reply is to reach the undersigned by 12-00 hours on 24th March, 1991 failing which it shall be deemed that you have nothing to say in your defence and the matter will be decided ex parte. Meanwhile you are suspended for four days from the date hereof."
2. He had replied but as the same was not found to be satisfactory a domestic enquiry was ordered. Imbisat Ahmed, the Enquiry Officer had examined G. M. Bari, Front Office Manager, Miss Shaheen Haroon, the Receptionist/Secretary, Shahzor Baig. Muhammad Salehoon and also the petitioner. He had reported that the charge of misconduct had been substantiated against the petitioner. And as a result thereof his services were terminated on the 29th of July, 1991.
3. The petitioner had sent the grievance notice on the 22nd of August, 1991 and not finding redressal of his grievance, had filed the petition before the Labour Court.
4. The petition was resisted inter alia on the grounds that it was not maintainable as the petitioner was not a workman.
5. The petitioner was his own witness, while G.M. Bari, Front Office Manager. Imbisat, the Enquiry Office and Muhammad Nawaz, the Personnel Manager appeared on behalf of the respondents.
6. The Labour Court found the petitioner to be a workman and the dismissal to be mala fide and therefore allowed the petition with back benefits resulting in this anneal.
7. It is true that the respondent enjoined the designation of Incharge of the Swimming Pool but G.M.
Bari under whom he was working had stated that he was not aware of any increase in the pay.
Muhammad Nawaz states categorically that there was no increase at all. There is also no job description forthcoming. G.M. Bari conceded that he was under his subordination and had to report everything to him. He also could not charge-sheet or trade any disciplinary action against even the 5 persons attending to the Pool as cleaner, waiters and guard. What is more. Muhammad Nawaz has unequivocally stated that the respondent had remained a member of union, and his subscription for membership was being deducted through check off system. With this admission the burden certainly had shifted on the appellant to establish that he was holding an office with supervisory status. Nothing is discernible that way. The mere fact that he had made a casual suggestion regarding "different problems at the Swimming Pool or recommended same increment to the five workers attached to the pool is not enough. I do not see the exercise of any supervisory power by him. The designation conferred was only to make him vulnerable: He had been dismissed earlier and had been reinstated by the Labour Court which order was affirmed by this Tribunal. The matter had also been taken to the High Court but all in vain. I agree with the learned Presiding Officer that he was a workman.
8. The show-cause notice mentions that he had misbehaved with the Head of the Department and that will be G.M. Bari. I have perused his statement at the inquiry. It appears that the respondent was standing near about the office of G.M. Bari when the latter states to have heard him arguing with Miss Shaheen. When asked as to what was the occasion for it, and why he was not at his place, the respondent had replied rudely and walked away banging the door behind him. However, Miss Shaheen Haroon is totally raticent about any argument between him and the respondent which had attracted the attention of G.M. Bari Shahzor gives a total go-by. He states not to be aware of the happenings because it all took place behind closed doors. The statement of G.M. Bari on the other hand shows that he had expressed his resentment in loud tone to the respondent as Incharge.
9. Even the enquiry cannot be said to be fair or proper, because the Enquiry Officer had not only taken upon himself the function of a prosecutor by resorting to long-drawn cross-examination of the respondent but had also introduced witnesses on his own accord, and recalled G.M. Bari to enquire from him whether he had any evidence to support the charge that the respondent used to remain absent from his duty place. It was as a result of this anxious enquiry that the names of Sher Muhammad and Salehoon had surfaced, and their statements were recorded. He also admitted that he did not call Arjumand Azhar for evidence about whom there was a request also from the respondent. Demonstrably he betrays his anxiety to run down the respondent.
10. The charge was propped up on too slender a basis; the respondent had been axed, as the appellants were nursing grudge against him.
11. In the result I will uphold the impugned order and dismiss the appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.