1. DECISION ' In this appeal the appellant Muhammad Javaid has called in question the correctness of the Judgment, dated 24th December, 1999 of Sindh Labour Court No,IV. Brief narration of the facts leading to this appeal is as follows. The appellant was employed permanently in 1980 as workman.
2. In Opal Laboratories Limited Karachi, hereinafter referred to as Respondent Company (Management). Since he was General Secretary of the Workers Union of the said Company he executed various settlements on Union's behalf, relating to terms and conditions of employment of workers the last settlement having taken place on 26/27th September, 1990. The implementation of said settlement in respect of bonus and annual increments was, however, kept in abeyance. He, therefore, took the matter to Labour Court as General Secretary of the Union. The union also raised Industrial Dispute under section 26(3) read with section 28 I.R.O., 1969 before the Area Conciliator.
3. Thereupon, the respondent Management was annoyed and gave him one charge-sheet after the other including the charge-sheet dated 14th April, 1991 regarding incident dated 21-3-1991 and charge-sheet dated 3-6-1991 regarding absence from duty on false excuses including the excuse of baying gone for prayers. He save reply to overy charge-sheet but some how his reply was found unsatisfactory and, therefore, enquiry was ordered. The appellant's grievance was that he was not given fate and proper opportunity to defend himself in the enquiry proceedings yet he was dismissed from service on the basis of enquiry report which was totally bissed. His further allegations were that the Enquiry Officer prepared Enquiry Report on the basis of dictation given to him by Mr. Amjad who was the Complainant against him. The appellant's complaint was that he was not allowed to cross examine the presentation witnesses and many questioned put to the aforesaid complainant by him were disallowed on the plea of the some being irrelevant. He further complained that his own Statement was not recorded by the Enquiry Officer and so also of his defence witnesses. The appellant had made such note on the enquiry proceedings. He further alleged that the Statement of witnesses Sabihuddin was dictated by complainant Amjad after he refused to give false statement and to this way the said witness was only made to sign his statement. His further allegation was that Enquiry Officer did not allow him to bring co-worker for his assistance. After considering the material on record the learned Judge made his observations as under:-- "Prom the very grievance petition filed by the applicant, his affidavit-in-evidence and the enquiry proceedings alongwith the report of the Enquiry Officer it is obvious that the present petitioner (accused in the enquiry proceedings) he was not given the proper chance to defend himself. From the evidence, whatever was recorded by the Enquiry Officer, it is transparent that the applicant was not given patient hearing and his objections were overruled in the slip-shed manner. He was even not given proper chance to bring his defence in the cross-examination of the witnesses. However, witness (complainant) Syed Amjad M examined by the Enquiry Officer had deposed against the applicant in the manner as if he was having any written questions and answered in his hand and went on dictating the same to the Enquiry Officer. Some of the said questions and answers are so irrelevant which should have not come in the enquiry proceedings. Besides that, whatever the enquiry preseedings had taken place from 9-8-1991 these were held in absence of the applicant on the ground that he had desorted to contest the enquiry proceedings. It is case of the respondent's management that the accused had deliberately. Avoided to attend enquiry proceedings on 8-8- 1991 and due to his failure to attend the said proceedings were adjourned to 15-8-1991, 22-8-1991, and onwards. From the perusal of the diaries of the enquiry proceedings right from 8-8-1991, it is nowhere transparent that the applicant was issued any notice or warning that due to his deliberate absence in attendance of the enquiry proceedings, the a same would be conducted ex parte. From non-issuance of the notice and the warning it can be presumed that either the applicant had not been allowed to participate in the enquiry proceedings or the praceedings on this date and subsequently were held in his absence so that he should not be in a position to bring his case and the defence version in rebuttal. From the enquiry proceedings, it further reveals that it is not in the letter and in spirit of the allegations served upon the applicant through charge-sheet.
4. Moreover, in enquiry report the Enquiry Officer has not dismissed the explanations furnished by the applicant to the charge-sheets served upon him. He has also not discussed that the explanations turned down by the Management were on the sound reasoning. The Enquiry Officer has also not discussed defence version taken by the applicant during the course of his participation in the enquiry proceedings. On the perusal of the evidence of complainant Mr. Amjad particularly his cross-examination recorded in Court it is contradictory to his statement recorded in the enquiry proceedings. He has also given ovasive and irrelevant replies to the questions put to him by the learned Advocate for the applicant. In his cross-examination, he has disclosed that in the enquiry proceedings Exbt.A/2 he was the complainant. But in his voluntary statement he has disclosed that I was not the complainant but had acted as prosecutor of the respondent. From this portion of his evidence, it cannot be properly ascertained are to what was his position during the course of the enquiry proceedings and the departmental actions against the applicant. Besides that, the non- allowing of the co-worker of the applicant to attend the enquiry proceedings alongwith the applicant,, is not fully justified by the Enquiry Officer as at the time of the enquiry proceedings he was very well in the employment of the respondent management. It is thus clear cut that the Enquiry Officer had not conducted the enquiry praceedings in the responsible manner and as per the spirit of the provisions regarding holding of the enquiry and submission of report of the same.
5. "He had also not properly acted in the impartial and fair manner, presumably as he being directly under the employment of the respondent Management and particularly he being Incharge of the personnel department, who usually deal with the affairs of the workers and the employees. Besides that, the endorsements of the applicant on the enquiry proceedings and so also before that regarding partiality are sufficient proof that the appointment of Mr. Muhammad Baig Baloch as Enquiry Officer had challenged from the very beginning on the count of his partiality and independentness ' It is crystal clear from the above comments of the learned Labour Judge regarding the manner in which the enquiry was conducted and also regarding the Enquiry Officer that appellant's allegations that enquiry was not conducted in fair and proper manner were correct. On perusal of the relevant documents I am in complete agreement with the above observations of the learned Judge. As a result of his above findings he has rightly set aside the impugned 'order of appellant's dismissal from service. He took that decision apparently on his satisfaction that set only the Enquiry Officer was prejudicial but the manner in which he conducted the enquiry was not fair and impartial. In support he has elaborately pin-pointed the defects in the enquiry. Though his decision of setting aside the appellant's dismissal from service on account of defective enquiry was unexceptionable yet I am not inclined to agree with his further direction that respondent management should hold fresh enquiry through some responsible person with necessary experience of conducting the enquiries. It would make no different if the fresh enquiry was held through some other person also appointed by the Respondents Management. The appellant was not at fault if the enquiry held against him turned out to be defective. Of course the benefit of lapses made in conducting the enquiry would have to be given to the appellant but there was no justification to hold the fresh enquiry against him by different Enquiry Officer also appointed/nominated by the Respondents Management. I am, therefore, not convinced about the decision of the learned Labour Judge that fresh enquiry be held against the appellant. As such that part of his decision is set aside. Consequently it is directed that the appellant be reinstated in service on payment of full back benefits found due to him.