DECISION This is an appeal against the order of the Labour Court ordering re-instatement of the respondent with full back benefits on an application made under section 25-A, I. R. O.
2. The respondent was in permanent employment of the appellant. It was the case of the respondent that he bad consulted the doctor of the company with regard to the illness of his wife in January, 1974 as will as in March, 1974, and on both occasions the respondent was advised to get his wife clinically tested. So the necessary tests were carried out in Karachi Laboratory which was a private concern. It is also the case of the respondent that the tests were carried out on the basis of the slips issued by the doctor of the appellant. The first test was held on 25January, 1974 and the second test was held or, 7March, 1974. Karachi Laboratory sent two bills for Rs. 36 each to the appellant for payment in terms of the arrangement between the appellant and the Laboratory.
Both the bills were honoured. Subsequently, an amount of Rs. 36 in respect of first bill was deducted from the pay bill of the appellant for the month of April 1974. The respondent approached the General Manager, who having been satisfied with the genuineness of the bill ordered the refund of the amount which bad been deducted. This order was passed on 6 May, 1974.
3. It is the case of the respondent that on 17 May, 1974 the General Secretary of the Union filed a criminal case (complaint) against the General Manager of the appellant and he was cited as a witness. This infuriated the General Manager and, therefore, a charge-sheet dated 28 May, 1974 was served upon the respondent on the allegation that one bill of Rs. 36 for the month of January, 1974 was recovered by tire respondent on false representation on the basis of a duplicate slip obtained from the doctor of the appellant on 6th March, 1974 and later the date was tampered withth th th th th and altered to 25 January, 1974. The respondent submitted an explanation to the charge-sheet denying the allegations.
4. Mr. Farid Ahmad was appointed as Inquiry Officer. Evidence was tendered on behalf of the appellant but the respondent did not lead any defence. On the conclusion of the inquiry tie respondent was found guilty and, therefore, his services were terminated by a latter dated 19September, 1974. The respondent after serving the grievance notice approached the Labour Court.
5. The application was resisted and it was pleaded that the respondent misconducted himself by falsely charging the amount for the month of January on the basis of a certificate issued by a private practitioner, and subsequently by false representation he obtained a duplicate copy of the letter dated 6March, 1974 from the doctor of the appellant and altered the date to 25January, 1974 to justify the claim; and on the basis of that false certificate the amount was claimed.
6. The respondent gave evidence for himself while on the other hand Mr. Farid Ahmed who conducted the inquiry was examined. On the assess--ment of the evidence the learned Presiding Officer ordered re-instatement. Aggrieved by this, the present appeal had been filed.
7. Now I would like to examine the various grounds which found favour with the learned Presiding Officer. The first ground that was taken by him was that the Labour Court was competent to see whether the Inquiry Officer had adopted the legal procedure when specifically the allegation of bias had been made. There can be no dispute with this view.
8. The next ground that was taken by the learned Presiding Officer was that Mr. Farid Abroad who was appointed Inquiry Officer was at one time happened to be the subordinate of the respondent and subsequently he became a superior officer and. therefore, a reasonable presumption would arise that the Inquiry Officer was suffering from complex and in order to maintain his position, he became a tool in the hands of the management. I am unable to support the observations made by the learned Presiding Officer. It may be that the Inquiry Officer had gone to the residence of the respondent to deliver a letter for adjournment but that can hardly be a ground to indicate his bias.
An allegation was also made by the respondent that the Inquiry; Officer used to consult Mr. Yazdani with regard to the statements of witnesses but it was an allegation unsupported by any evidence.
9. It was pointed out by the learned Presiding Officer that the respon--dent was first examined and this was a novel procedure which was adopted by the Inquiry Officer. In my view the observation was unwarranted in view of the fact that when the charge-sheet was read over to the respondent, he himself voluntarily made a lengthy statement in reply to the charge-sheet Consequently, no fault could be found with the Inquiry Officer.
10. It was next pointed out by the learned Presiding Officer that Inquiry Officer frankly conceded in the cross-examination that he did not summon the respresentative of the Karachi Laboratory, though a request to that effect was made by the respondent. Similarly, the Inquiry Officer refused to summon Messrs Yazdani and Yousufi. It is rather strange that the learned Presiding Officer adversely commented upon the action of the Inquiry Officer without any justification. The respondent had made no request to summon them as his witnesses but he wanted them for the purpose of cross-examination. Their affidavits were never filed by the appellant and so the question of cross-examination of those three persons did not arise: In case the respondent wanted, he could summon them as his own witnesses in defence. Such a request was never made by him.
Consequently. The Inquiry Officer was fully justified to accept the request.
11. It was next pointed out by the Presiding Officer that Mr. Torara, Accounts Officer was examined on 12June, 1974 but his cross-examination was postponed and before he could be cross- examines Dr. S. A. Hamid who used to refer the workers to Karachi Laboratory was examined and the respondent was forced to cross-examine him without the cross-examination of Mr. Torara. I amth th th th th unable to understand how an illegality was committed by this procedure. Mr. Torara was ultimately cross-examined. No prejudice was alleged or established.
12. The learned Presiding Officer also pointed out that on 20June, 1974 one driver, Mohammad Sarwar was examined. This is rather a mss-statement of fact. The record does not show that any Moh--ammad Sarwar was examined.
13. The learned Presiding Officer took exception to the absence of signature of the respondent on page 22 and pointed out that the respondent was signing every document and how it was possible that he refused to sign that page. In this connection reference may be made to the receipt dated 26July, 1974, admittedly signed by the respondent; in which he stated that he had received copy of the inquiry proceedings and pages Nos. 21 and 22, both inclusive; with the note that page No. 22 was not signed by him. There is no allegation that page No. 22 was fabricated. It was for the respondent to have explained why he did not sign page No. 22 and there can be no justification for drawing any adverse inference against the appellant.
14. The learned Presiding Officer also took exception to the fact that Mr. Yousufi who had signed the written statement was not examined and observed that the plea of the appellant with regard to giving further opportunity to the respondent could not be said to have been proved. I am unable to understand the fallacy of this argument. It is not necessary that the person who may have signed the written statement should be examined if there is other sufficient evidence on record to establish the charge.
15. With regard to the bill for the month of January, 1974 it was observed by the learned Presiding Officer that without the certificate of the approved doctor of the appellant the laboratory would not have held the tests without payment and, therefore, the submission of the bill for test dated 25January. 1974 was a conclusive proof of the fact that the respondent himself had produced a recommendatory slip before the test. I must say that the learned Presiding officer travelled beyond the evidence on record and proceeded to draw an unwarranted presumption. It is an admitted fact that no attempt was made to produce the alleged recommendatory slip either in the domestic inquiry or before the learned Presiding Officer. On the contrary, it is an admitted position that the respondent had obtained two letters for 6th March, 1974 from Dr. Hamid who was the doctor of the appellant. Of course, one of the letters was genuine but fabrication was committed in the other. The respondent obtained second letter for 6th March, 1974 by making false representation to Dr. Hamid that the original letter dated 6th March 1974 issued by him was lost and, therefore he needed another letter in order to support the bill for the test held by the Karachi Laboratory. It is also admitted that after having secured the second letter the date was changed to 25th January, 1974 to support the first bill. The first test was admittedly held on the letter issued by Dr. Talat Siddiqui who was not tote authorized doctor of the company. Of course, the respondent stated that the date was altered in presence of the accountant of the appellant, but the evidence of the accountant shows that this was also done on the basis of misrepresentation. It was, therefore, fully established that the respondent was guilty of misconduct by fabricating and altering the date in order to support the bill for the month of January for the test held without the advice or reference by the authorized doctor of the appellant.
16. The learned Presiding Officer also proceeded to hold that the appellant was guilty of victimization on the basis of the complaint filed by the General Secretary on 17th May, 1974 in which the respondent was cited as a witness. In my view, this presumption is also not justified. Mere fact that the respondent was cited as a witness does not necessarily mean that he would have supported the General Secretary. It is not known what was the nature of the evidence which the respondent was required to give. He was not yet examined. In this connection it maybe noted that the respondent was not dismissed from service but his service was simply terminated and he wasth th th paid Rs. 50,000 in cash which covered all the benefits which are allowed on simple termination. This repels the allegation of victimization.
17. Lastly, the learned Presiding Officer proceeded to observe that the amount which was deducted was refunded and once the refund was ordered, presumption would be that it was made after due verification and the charge was made subsequently after 20 days. Indeed, the refund was ordered on 4th May, 1974 on the application dated 3rd May, 1974 made by the respondent to the General Manager that required document was submitted. The General Manager passed the following order :- "A.O., He has not submitted the right document, however has verbally explained the position. Please reimburse on original receipt."
18. Since the General Manager was not examined it is not known whether the duplicate copy of letter dated 6th March, 1974 issued by Dr. Hamid was brought to the notice of the General Manager and whether despite his knowledge that forgery bad been committed he ordered the refund of the amount. This needed clarification and, therefore, the evidence of the General Manager was important He ought to have been examined. In case he had ordered refund despite the knowledge of forgery and all other facts, it must be presumed that the misconduct of the respondent was cond--oned and the subsequent charge-sheet was not justified. Since this aspect of the case was not considered by the learned Presiding Officer or by the parties and there is nothing on record to guide me to come to a definite conclusion, I am unable to say anything and the proper course would be to remand the case for the evidence of the General Manager, who may be summoned as a court witness.
19. In result I allow the appeal and set aside the order passed by the Labour Court with the direction to examine the General Manager as indicated above and dispose of the case on the assessment of the evidence of the General Manager.