' This appeal arises out of the order, dated 11-10-1997, passed by the Second Sindh Labour Court in Application No,215 of 1992 under section 25-A of the Industrial Relations Ordinance, 1969 read with Standing Order 15(3) of Standing Orders Ordinance, 1968.
2. The appellant filed a grievance petition against the respondent on the ground that he is office bearer of Mazdoor Union/C.B.A. And in order to victimise him a bogus charge-sheet was issued on 17-3-1992..A reply was submitted by him to the said charge-sheet on 19-3-1992. Not feeling satisfied with the said reply, the respondent appointed Mr. Tanvir Hassan as Enquiry Officer to hold and conduct the domestic enquiry against the appellant. The Enquiry Officer, after holding the enquiry found the appellant guilty of misconduct and submitted to the management, his report dated 7-4- 1992. The management, thereupon, issued an order of dismissal of the appellant from service. The appellant, being aggrieved with the said order of dismissal, filed an application in Labour Court No,2 under section 25-A of the I.R.O, 1969 read with Standing Order 15(3) of Standing Orders Ordinance, 1968 for reinstatement with back benefits. The learned Presiding Officer of the said Court, after recording evidence, produced in the case, dismissed the said application by his order dated 11-10-1997, as aforesaid.
3. I have heard Mr. Salim Raza, representative of the appellant and Mr. Mahboob Rizvi, Advocate for the respondent.
4. Mr. Salim Raza submitted firstly that the Enquiry Officer was neither impartial nor independent. I read with him the enquiry proceedings in its entirety. My impression, on going through the entire enquiry proceedings, is that the Enquiry Officer conducted the enquiry as to the charge, independently and impartially. This is the impression I gathered after going through the proceedings in its entirety, as such. The submission is unfounded.
5. Mr Salim Raza next submitted that the reply statement, signed by its Factory Manager Taj Hussain and also his affidavit-in-evidence. Cannot be treated as evidence in the eye of law, as said Taj Hussain did not appear as witness for the respondent for cross-examination. Agreeing partly with the submission of Mr. Salim Raza, the affidavit-in-evidence, filed by Taj Hussain, cannot be taken into consideration as evidence of the respondent. However, I inquired Mr. Mehboob Rizvi, as to why the respondent did not produce its Factory Manager Taj Hussain for cross-examination.
His reply was that he had already left the job of the respondent and his whereabouts were not known to the respondent. He, however, invited my attention to the affidavit-in-evidence, filed by one Abdul Rasheed the Factory Manager, who succeeded Taj Hussain. On perusal of the evidence of appellant and the respondent Abdul Rasheed, it seems that Abdul Rasheed was well-aware of the facts of the case being in his personal knowledge, as he then was Production Manager, at the time of charge-sheet. He, thus, stated on Oath that, "Whatever has been stated in the reply statement on behalf of the management alongwith all the Annexures are true and correct". In effect, he seems to have adopted the statement, made in the reply statement alongwith Annexures. As such, no exception can be taken to his evidence.
6. The third submission, as made by Mr. Salim Raza, is that the charge is not covered by Standing Order 15(3) of the Standing Orders Ordinance1968, as it constitutes non-misconduct. The relevant portion of the said Standing Order is re-produced below:-- "15(3). The following acts and omissions shall be treated as misconduct:-- (a). ............
(b) ................
(c) Wilful damage to or loss of employer's goods or property."
' The submission is, therefore, misconceived. He further submits that there was no proof as to the intentionally causing damage or loss of property to the respondent.
7. Taking a new plea in this appeal, Mr. Salim Raza submitted that, the Enquiry Officer took proceedings ex parte against the appellant Abid Hussain. I again read the relevant proceedings with Mr. Salim Raza concerning the appellant. It is significant to note that during the enquiry proceedings, this appellant staged a walk out alongwith his representative Arif Khan saying that. {{URDU TEXT}} ' The only only material point involved in such enquiry proceedings, conducted by Enquiry Officer Tanvir Hassan is, whether the appellant was given the due opportunity to appear and participate in the enquiry proceedings or not? There is a notice issued to the appellant by the Enquiry Officer to appear before him on the date fixed before him. It was stated in the notice that if he wishes he should bring his witnesses/representative alongwith him, which he wanted to produce in defence.
In fact, he appeared before the Enquiry Officer alongwith his representative, and participated in the enquiry. The statement of Amir Ali was recorded in his presence, but he staged a walkout during the proceedings, against him. In these circumstances, the Enquiry Officer had no option, but to complete the enquiry in the absence of this appellant. In this respect, I find no fault with the Enquiry Officer.
8. Mr. Salim Raza submitted lastly that the learned Labour Court did not look into the fact that the loss was caused by one Abdul Qayyum as coworker. The learned Labour Court was justified in not adverting to this aspect as said Abdul Qayum was neither produced by the appellant nor by the respondent.
9. In result, .The appeal has no force, which is dismissed accordingly.