DECISION ' This appeal calls in question the order of the Labour Court No, II, Karachi whereby the petition with the prayer of reinstatement under section 25-A, IRO came to be dismissed. The circumstances forming the back ground of this case in brief are as follows:- ' The petitioner was employed with the respondents since August, 1972. He was the Joint Secretary of the Union. It is alleged that as the cause of the workers was being fervently espoused by their union which was the C.BA., they had incurred the wrath of the respondents. He was therefore maliciously served with a show-cause notice on the 10th of April, 1988 which reads as under:- "It has been reported by Mr. Amir Sultan, Security Sargeant that on 7th April, 1988 at 11-30 hours. Mr. Khushmir Khan, Badge No, 131-60 (Ex. Union Office-Bearer) came to him at Main Gate Security Office and told him that they decided that lunch would be taken at 12-00 hours, instead of 12-30 hours. Mr. Amir Sultan informed Mr. Khashmir Khan that he did not receive any order from Management about this change and he had already approached his superiors. In this connection, who have instructed him that there would be no change in lunch timings i.e, 12-30 hours.
' Mr. Amir Sultan then went to canteen gate and informed Mr. Mehboob Hussain, Security Guard, who was deputed there for duty that the lunch will open on its usual time and remained there for checking.
' At about 12-00 hours, you alongwith Mr. Shah Nawaz, Code No, 3807 came to the Factory Canteen Gate. The Managing Director and Mr. Shah Nawaz asked Managing Director to change the lunch timing but Managing Director refused to change the usual timing of 12-30 hours. Upon which, you and Mr. Shah Nawaz instigated the workers and forcibly opened the canteen gate at 12-00 hours and rushed inside the canteen alongwith the workers, shouting the slogan of "Mazdoor Group Zindabad". Thus you committed acts of wilful insubordination in combination with other workers, and an act subversive of discipline during working hours at the establishment.
' The above acts amount to misconduct within the meaning of sections 15(3)(a) and 15(3)(h) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
' You are hereby called upon to explain within 72 (seventy-two) hours of receipt of this show-cause notice as to why disciplinary action should not be taken against you for the misconduct committed as shown above.
' If no reply is received within the stipulated time it shall be presumed that you have nothing to say in your defence and the matter will be proceeded ex parte.
(Sd.)
MERAJ-UL-HAQ, MANAGER, INDUSTRIAL RELATIONS AND PERSONNEL
2. The petitioner had replied to the charge-sheet protesting his innocence in the matter, as on the day of the alleged incident he was hospitalised. The reply was found to be unsatisfactory and an enquiry was ordered wherein a number of witnesses from both the sides came to be examined. As according to the report, a case of misconduct had been made out against the petitioner, he came to be dismissed on the 10th of August, 1988. He had sent a grievance notice and later filed the petition before the Labour Court.
3. The petitioner apart from himself had examined Dr. Muhammad Tufail, head of the Hasan Medical Centre. On his application, Mauladad, a Handwriting Expert, was examined as a Court witness. Niaz Ahmed who was the Deputy Manager Personnel had filed his affidavit on behalf of the respondent but in the meantime he had left the job and an affidavit of one Sardar Ali was filed instead. The Labour Court rejected the application on the ground that it was not supported by any affidavit. Besides there was no allegation that Niaz Ahmed had left the country. The order went on to say"No cogent reasons have been shown for dropping the evidence of S. Niaz Ahmed, whose affidavit is available on record. Since Niaz Ahmed is in Pakistan and this fact has not been denied by the learned respondent's Advocate,therefore it will not be proper to drop his evidence. The learned Advocate of the applicant is directed to produce the address of S. Niaz Ahmed and summons may be issued" to him.
4. A fresh address of Niaz Ahmed was thereupon supplied by the appellant and he did appear before the Court but sought adjournment on the ground that his mother-in-law had expired. The case was adjourned, but he did not turn up thereafter, though the case was adjourned a number of times. Thereupon the Court passed the following: "The witness is avoiding to appear for cross-examination purposely to produce him. I therefore close his side." This order was passed on the 27th February, 1992 and there were innumberable dates thereafter and eventually the impugned order was passed on the 28th day of April, 1993.
5. The Labour Court for the reasons given by it dismissed the petition culminating in this appeal.
6. At the enquiry a number of witnesses had been examined in support of the prosecution namely Amir Sultan, Mehboob Hussain, Mutiur Rehman and Mir Latif all of Security Department and Ramz Ali Sangi, Manager, Administration. Amir Sultan the main witness had stated that one Khushmir an office-bearer of the union had made a request to him that the workers be allowed to have their lunch at 12-00 hours as against the usual 12-30 hours. He had thereupon gone to enquire about the change of time from Ramz Ali Sangi. The latter had shown his ignorance in the matter. Then he made enquiry from some Brigadier, who has remained unnamed who had shown his ignorance about any change in the time. To make it doubly sure, he went to the Managing Director and learnt from him that there was no change. Accompanied by Mir Latif and Mutiur Rehman, he had gone to the canteen where discussion had started. Then he mentioned that there was a scuffle and when their party had been over-powered, the workers had entered into the Canteen and had their lunch there. Mehboob Hussain further adds that a slogan of "Mazdoor Ittehad Zindabad" was also raised by the workers during this time. The version as furnished by Motiur Rehman and Mir Latif is in line with the narration as furnished by them.
7. However Ramz Ali Sangi who was the Manager Administration states that the appellant and one other person whom he had named, had met the Managing Director at the Canteen and requested him that the workers be allowed to have their lunch half an hour ahead of the scheduled time, but the Managing Director had declined. Upon this, some workers had started running to the Canteen gate. He stopped .Short by saying that the two office-bearers of the CBA did not stop them from entering inside. He goes on to say that the Managing Director had showed extreme indignation on the non-cooperative attitude adopted by the 2 office-bearers including the appellant and started walking away to his office. He had also directed us to leave the place as whatever had to happen had happened and his orders stood flouted.
8. Demonstrably the version of Ramz All Sangi is tangent to what has been spoken about by Amir Sultan, Mehboob Hussain, Mir Latif and Mutiur Rehman. There are no slogans and no parts assigned to the appellant.
9. However the case of the appellant is that on the day in question right from 10 a.m. He had been at the Hasan Medical Centre and drip was being administered to him. It is admitted on all hands that the appellant had been referred to Hasan Medical Centre who are on the panel of the company's doctors on the 27th of March, 1988. According to Dr. Muhammad Tufail who had been examined, he had prescribed and drip was administered to the appellant from 10-00 a.m. To 1 p.m.
On the 7th of April. It is true that on his own showing he was not personally present at that place but denied the suggestion that he was not at all in his hospital from 10-00 a.m. To 1-00 p.m. He has produced the letter received from the respondent referring the appellant on the 27th of March and also the two certificates, according to which the appellant was advised rest and treatment from 5- 4-1988 to 14-4-1988.
10. It is true that Amir Sultan had produced the attendance card of the appellant according to which he had reported for duty on the 7th of April and signed the same. However, the said card alongwith a number of documents had been referred to the Handwriting Expert. The same was examined by Mauladad Khan. He had appeared as a witness and according to him the attendance sheet bearing the questioned signature did not tally with the specimen and routine signatures of the appellant which he had compared with "the aid of comparator, comparison microscope, magnifiers, ultra violet and infra rays".
10-A. It was contended by Mr. Qamaruddin Hasan learned counsel for the appellant, that the comparison of the signatures, should have been done by Ghulam Abbas, the then Assistant Inspector-General himself is devoid of any substance. No one in special was named in the application or order and the letter despatched in that context was of a routine nature.
11. The oral evidence in regard to the role played by the appellant as furnished by Amir Sultan and others must therefore yield to the evidence from an altogether independent and unimpeachable quarter. Otherwise too it was not free from suspicion.
12. It is admitted by Mehboob Hussain, that on 7-2-1988, a demonstration had been held at the instance of the union, protesting against the retrenchments which had been made. It is also admitted by these witnesses that elections had been held on the 23rd of February, 1988 wherein the appellant's party had won with a thumping majority. It is also admitted that there was a challenge thrown and a referendum had followed. It is also accepted on all hands that the appellant was the Joint Secretary of the Union at the material time.
13. To cap it all the evidence of the appellant before the Labour Court remains unchallenged as Niaz Ahmed did not make himself available for cross-examination.
In the light of these observations the impugned order cannot be sustained. I will therefore set it aside and allow the appeal with full back benefit as the appellant has stated in clear terms that he was rendered jobless because of the wrongful dismissal. He will be reinstated in service, within a month of this decision.