' This is an appeal under section 37 of the Industrial Relations Ordinance, 1969, against the order, dated 10-9-1998, dismissing the Grievance Application No,115 of 1997 (Old No,183 of 1997) under section 25-A of the I.R.O., 1969, passed by the learned Presiding Officer, Sindh Labour Court No,2 at Karachi.
2. It seems convenient to reproduce the points, as determined by the learned Presiding Officer, asunder:--
(1) Whether the application under section 25-A is not maintainable?
(2) Whether the provisions of Standing Orders Ordinance do not apply to the respondent's establishment, due to employment of less than fifty workers?
(3) Whether the enquiry was not fairly and properly conducted?
(4) Whether the impugned order of dismissal from service required to be set aside and the applicant reinstated into service with back benefits?
3. Mr. Lodhi, Representative of the appellant submits that the appellant was working in the Stores of respondent for several years. He was delivered a charge-sheet on 16-10-1996. As a result of enquiry into the said charge sheet, the appellant was dismissed by the respondent on 5-11-1996. The pleas, in support of the appeal, raised by Mr. Lodhi, are three fold; (i) The learned Presiding Officer fell in gross error in giving finding that the establishment had less than 50 (fifty) workers at the relevant time, as such, the provisions of Standing Order-12(3) are not applicable; (ii) learned Presiding Officer also committed an error in holding that the application under section 25-A is not maintainable and (iii) the enquiry held under the charge-sheet against the appellant, was conducted improperly and the order of dismissal was wrong in law.
4. It support of the first two pleas, he prepared a chart for the months of October and November, 1996, as per Annexures 'A', 'C' and 'D' and submitted the same before me in order to clarify the position on the number of workers. A copy of the same was supplied, on my direction by him, to Mr. Shahani, learned counsel for the respondent. In the light of the said chart Mr. Lodhi submitted that during the month of October, 1996 total number of workmen (only) as employed by the respondent, was 63 (sixty-three) and in November, 1996, it consisted of 59 (fifty-nine). The learned counsel for the respondent did not dispute this position. He, in fact, candidly conceded to the first plea that the learned Presiding Officer fell into an error in holding that the number of workmen in the respondent-establishment, at the relevant time, was less tan fifty (50). Resultantly, the application is held to be maintainable and the provisions of Standing Order-15(3) of Standing Orders Ordinance, 1968 too, are applicable to the case. The findings of the learned Presiding Officer, on Issues Nos,1 and 2 stand, therefore, reversed.
5. Now dealing with the third point, Mr. Lodhi submitted that the appellant had, in fact, boycotted the enquiry proceedings, when he was stopped from taking notes of the statement of witnesses and not supplied copies of the statement of the prosecution witnesses. The allegations of Mr. Lodhi, as alleged, have been explained by the enquiry officer in his deposition before the learned Labour Court.
6. Mr. Lodhi, Representative of the appellant has failed to point out a single defect in the domestic enquiry, which may be termed as perverse and contrary to the principles of natural justice. It appears that the appellant deliberately avoided to participate in the enquiry proceedings. He even did not care to file any reply to the charge-sheet.
7. Mr. Lodhi lastly submitted that a copy of the audit report (the complaint on the basis of which charge-sheet was framed and issued to the appellant) was not supplied to him. Mr. Shahanit, in reply to the said submission, placed his reliance on the case reported as Shamsher Ali Khan v.
Sindh Labour Appellate Tribunal and 2 others (1987 PLC 23), a judgment of the Sindh High Court wherein it was held, that, "coming to the next ground taken by the petitioner that copy of the complaint forming the basis of charge-sheet was not supplied to him, although has not been disputed by the respondent No,2, but the contention appears to be misconceived as the charge- sheet contained sufficient details in respect of the allegations made against the petitioner Therefore, in our opinion, no prejudice had been caused to the petitioner. We. Therefore, reject this contention as well". In the instant case, the allegations have been detailed in the charge-sheet of which the appellant was fully aware.
8. To conclude, Mr. Lodhi failed to point out that the enquiry proceedings against the appellant or the dismissal was unfair. The role of the Labour Courts in judicial review of administrative action taken in or under the enquiry, resulting in termination of service of an employee is to see that the procedure, adopted by the enquiry officer/employer is fair, in consonance With the principles of natural justice and that the enquiry officer or the employer has not caused any prejudice to the worker. It is noticeable that the enquiry officer examined each and every person, connected with the audit report/charge sheet, which formed basis of the charge-sheet.
9. The appellant did not take the trouble of even replying to the charge-sheet, which was duly received by him. In the circumstance, the respondent had no option but to appoint an enquiry officer and accordingly, a letter dated 21-10-1996 for holding an enquiry, was issued to him (page.
37 of the R&P). As a result thereof, the enquiry was held on 28-10-1996, which was duly attended by the appellant with the co-worker namely Muhammad Shafi. The first P.W. Yaqoob Niazi was got examined on the day in presence of the appellant and his helper (co-worker). The cross- examination of P.W.1 was, however, adjourned to 30-10-1996 on the request of the appellant. On 30- 10-1996, the appellant chose to remain absent from the enquiry although he had come to the factory to join the duty, which shows that his remaining absent from the proceedings in the enquiry was deliberate and wilful. The enquiry officer, acting fairly, sent an officer of the company namely Mustafa, asking the appellant to come and attend the enquiry proceedings. In spite of that, the appellant did not care to attend the enquiry proceedings. The enquiry officer had, thus, no option but to examine P.Ws.2 and 3 namely Tariq Sultan and Miss Manawar Fatima on 30-10-1996. The enquiry officer again acting fairly also addressed a letter dated 30-10-1996 informing the appellant that the enquiry proceedings will then be taken up on 3-11-1996. On 3-11-1996, the appellant came and attended the enquiry proceedings. He, however, requested in writing for the supply of a copy of the proceedings of the enquiry. The enquiry officer kept the said letter of the applicant on record and informed him that there is no provision in law for supply of the copies of the enquiry proceedings. He also recorded the reasons for non-supply of the same (pages 35--37 of the R&P).
He offered the appellant that he would read out each and every page of the deposition of the witness, before his cross-examination. The enquiry officer also promised him that he will be afforded every opportunity to facilitate the cross-examination of the witnesses already examined by him on the previous dates. The appellant, however, left the enquiry room without cross- examining any of the three prosecution witnesses.
10. The enquiry officer, in the said circumstance, had no option but to close the enquiry proceedings and started writing his report, which was submitted by him to the management on the next day i,e, 4th of November, 1996. Consequent upon the enquiry findings, the respondent issued a dismissal order on 5-11-1996 (erroneously typed as 5-10-1996) as pointed out by Mr. Shahani.
11. The appellant then gave a grievance notice dated 6-11-1996 which was duly replied by the respondent by their letter dated 14-11-1996. Thereafter the appellant filed his grievance petition on 25-11-1996 claiming reinstatement with full back benefits.
12. Mr. Shahani, supporting the charge-sheet, the enquiry proceedings and finding of the enquiry officer and in consequence thereof the order of dismissal dated 5-11-1996, submitted that the allegations made in the charge-sheet are specific, to the point and when taken as a whole, constitute misconduct as provided under Standing Order 15(3)(b) and (c). He specifically referred to Exh. All dated 8-10-1996 and Exh. A/2/1 dated 10-10-1996, forming the part of enquiry report as also duly, exhibited in the learned Labour Court. These two documents, as submitted by Mr. Shahani, go to show that the finished goods stock was physically checked by the Accounts Officer in presence of the appellant, which bears his signature with date thereunder. To explain the abovesaid two documents, Mr. Shahani referred a portion from page 2 of the cross-examination of the appellant (page 169 of R&P), which is reproduced as under:-- "It is correct to say that in that audit report which found that entry of excess goods and less goods of stores I see Annex. All and A/2/1 they bear my signatures alongwith the audit officer. It is correct to say that both the Annexes: A/1 and A/2/1 do not bear the signatures of any one worker of the store department."
13. The said Audit Report is signed by the auditors as well as 2/3 other officers. Physical checking appears to have been made in presence of the appellant. Learned counsel for the respondent further submitted that an employer is required to establish the misconduct in the domestic enquiry. In the domestic enquiry, these documents were exhibited and were also in the Labour Court, which were put to the appellant during the course of enquiry. The findings on Issues Nos,3 and 4 are, therefore, maintained.
14. In result, the appeal is dismissed.
' Announced in open Court, this the 21st of September, 1999.