DECISION ' This is an appeal against the order of the Labour Court ordering the re-instatement of the respondent on an application made under section 25-A, I. R.
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2. The respondent was in the permanent employment In Hotel Intercontinental, Karachi. She was first appointed as Stewardness on 1st May, 1964 and subsequently was promoted as Junior Floor Supervisor. There arose some unpleasant incident between her and Mrs. Alam, Public' Relations Manager on 3rd May, 1975. Mr. Musharraf All Khan, Personnel Manager called her on the complaint made by Mrs. Alam and something unpleasant happened there too. According to the allegations made on behalf of the appellant, the respondent had misbehaved with Mrs. Alam as well as with Mr. Musharraf All Khan when she was called by him. On the other hand, the allegation of the respondent is that Mrs. Alam as well as Mr. Musharraf All Khan misbehaved with her and rebuked her. She made several complaints to the General Manager but nothing happened and no action was taken on the complaints made by her.
3. On 7th May, 1975 the respondent was charge-sheeted by Mr. Musharraf All Khan in respect of the incidents which took place on 3rd May, 1975 with bim as well as with Mrs. Alam. By this time she absented herself from duty and applied for earned leave which was due to her but it was refused.
Consequently, another charge-sheet dated 22nd May, 1975 for absence without leave for a period of over 10 days was issued to her. She did not submit any explanation to any of the charge-sheets, but merely made representations to the General Manager without any result.
4. Mr. Musharraf All Khan appointed Mr. Wasim A. Siddiqui, Chief Accountant as Inquiry Officer. The repondent was directed to appear before the Inquiry Officer on 30th June, 1975. She made a representation that she should be represented by her son or legal advisor to defend in the inquiry but this request was refused and the inquiry was fixed for 7th July, 1975. She, however, did not attend the inquiry which was then held ex parte. She was found guilty of the charges and a show- cause notice was given with direction to appear before the General Manager on 25th July, 1975.
She failed to appear and, therefore, she was dismissed from service on the basis of the report of the Inquiry Officer.
5. Aggrieved against the dismissal, she served a grievance notice and approached the Labour Court. The application was resisted and various pleas were taken. Evidence was tendered by both the parties On the assessm ent of the evidence the learned Presiding Officer set aside the order of dismissal and ordered re-instatement of the respondent with all back benefits. Aggrieved by this present appeal had been filed.
6. On perusal of the record and proceedings and hearing the arguments I see no reason to interfere with the order passed by the Labour Court. The first objection that was raised on behalf of the appellant is that grievance notice was not sent by the respondent, but only a telegram was purported to have been seat. To this it was added that the respondent produced only photo-stat copy of the telegram without producing the postal receipt. The learned Representative appearing on behalf of the respondent submitted that the postal receipt was produced in the Labour Court and was shown to the learned Presiding Officer but it was returned. The original postal receipt has been produced before me and I have admitted it in evidence. Thus it has been established that the telegram was sent complaining against the termination of service by way of dismissal. That being so this must be treated to be the grievance notice.
7. It was next urged by the learned counsel for the appellant that, although, mala fide was alleged in the notice but it was not proved for want of evidence and mere allegation was enough. I am unable to find any force in this contention as the manner in which the action was taken by the Management fully establisded the mala fide. There had been some incidents prior to the incident of 3rd May, 1975 and the respondent had made complaints to the General Manager but nothing was done to redress the grievance ventilated by her. Again she made a complaint to the General Manager with regard to the alleged incidents which took place on 3rd May, 1975 but the General Manager paid no heed to it. Instead Mr. Musharraf Ali Khan against whom the allegation was made, issued the charge sheet and appointed Mr. Wasim A. Siddiqui as the Inquiry Officer. So he became the prosecutor and the persecutor. The respondent was alleged to had misbehaved with Mr. Musharraf Ali Khan and, therefore, the principle of natural justice needed that the action should not have been taken by him but it ought to have been taken by the General Manager himself. There is nothing on record to indicate that the respondent was charge-sheeted with the approval of the General Manager. Apart from this, it has been maintained that Mr. Musharraf Ali was not the employer within the meaning of Industrial Disputes Ordinance and was incompetent to issue the charge-sheet. Admittedly, the respondent was not working under him. She was working in a different section. There is also an allegation made on behalf of the respondent that Mr. Wasim A.
Siddiqui who was appointed as the Inquiry Officer was subordinate to Mr. Musharraf Ali. This allegation has not been denied. Thus the appointment of Mr. Wasim A. Siddiqui as an Inquiry Officer by Mr. Musharraf All Khan who was the aggrieved person is also open to serious objection. In the circumstances it is not possible to hold that the inquiry was fair and the principle of natural justice was not violated. It may be true that no allegation against the inquiry or Inquiry Officer was made in the application but it hardly requires consideration in view of what has already been stated. In fact, the General Manager was the employer as she was appointed by him and he was the proper person to issue a charge sheet and appoint the Inquiry Officer for holding the inquiry. In my view, it was also necessary for him to inquire into the allegations and the representation which had been made by the respondent. In any case the respondent was working in the House-keeping Section controlled by the Executive House-keeper, who could be said to be the employer in addition to the General Manager.
8. In this connection I would like to refer to the pertinent observation made in the case of the Chairman, WAPDA v. Lobour Union, WAPDA Electrical & Mechanical Workshop, which reads as under :- " It is self evident that since in this case there was involved a point which directly concerned the Works Manager himself and involved scrutiny of his own conduct, he could not be a Judge in his own cause and, therefore, if it is argued that by placing the case before him, the worker had been given fair, reasonable and independent opportunity to show cause, then such a contention cannot be accepted. Reasonable opportunity does not merely comprise of issuing various notices etc , or receiving their replies but includes the examination of a case by an independent, impartial and unbiased officer who himself is not involved in the case and who has not to sit in judgment over his own conduct while examining the conduct of the accused workers. The opportunity is unreasonable from another point of view, namely that the Enquiry Officers were the direct subordinates of the charging officer. In cases of departmental enquiries it is essential that the Enquiry Officer should be an independent person and must not be so connected with or related to the case of the charge involved so as to prejudge it or have bias against the person proceeded against. It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly seem to be done. In the instant case this principle was not adhered to when the enquiry was entrusted to such Officers who were directly subordinate to the charging Officer who had a clear enmity with the workman and especially when the defence of the workman was that the whole affair was a concoction of the brain, malice and vindictiveness of the Works Manager. The subordinates of the Works Manager obviously were not in a position to record a verdict against their own master."
' Although, the facts of the case are somewhat different but the principle involved in it is equally applicable to the present case.
9. Another incidence of victimization is that she had applied for leave which was due to her but it was refused. Of course, the grant of leave may be discretionary but in the circumstances of the present case the refusal was not justified.
10. It was pointed out by the learned Presiding Officer that, although, the respondent had requested for the assistance of a male representative from his family or a legal advisor. He was conscious of the fact that the law did not permit any such representations, as according to law the assistance could be sought only from a co-worker, but he quoted an English authority whereby such as assistance was recognised. However, I would not like to deal with this question in view of the fact that I have not approved of the action taken by the Management on other grounds.
11. In result I maintain the order passed by the Labour Court and dismiss the appeal. PLD 1967 Lah. 1286