DECISION ' This appeal is the outcome of the decision of the Sindh Labour Court No,V, Karachi, dated 31st August, 1998 whereby the grievance petition filed by Muhammad Ramzan (respondent in this appeal) was allowed. His grievance was that he was working as Store Keeper doing manual and clerical duties in the Phoenix Security Services (Pvt.) Limited, hereinafter referred to as appellant Company, when he was dismissed from service illegally vide order dated 25th January, 1994. His case as disclosed in his grievance notice, dated 23-2-1994 which he sent to his employers was that in the capacity of Storekeeper he maintained record of Uniforms and Statitionery and supplied the said articles to the workers concerned under the instructions of Service Manager Major (Retired)
Tariq. The Management of appellant-Company was also Management of Brinks Pakistan Limited.
On 9-11-1993 about 100 workers of the Brinks Pakistan Limited stood removed from service as they had declined to sign new contract of employment. Thereupon 90 workers of Phoenix Security Services (Pvt.) Limited including the respondent were required to work in their place. Though the respondent first refused to work in place of any worker of the Brinks Pakistan Limited, yet on the following day i,e, 10-11-1993 as soon as he reached the office at 7-00 a.m. He was assigned duty at the gate to look after the requirements of Police, further pointing out to them the workers of Brinks Pakistan Limited so that they were not allowed to enter the Office. The other Officers of the Management were also present at the gate to bar the entry of the said workers into the Office. In compliance of the said instructions the respondent looked after the requirements of Police from 10- 11-1993 to 28-11-1993. Meanwhile he was also asked to make false complaint against Brinks workers to Police so that they were put in Jail and for that he was allowed free hand to spend any amount of money. When he informed the Management that all the workers were peaceful while sitting in front of the Office and as such there was no justification for their arrest, he was threatened with removal from service. The Management disliked even his shaking of hands with the said workers.
He went on leave from 29-11-1993 to 14-12-1993 and on his return to duty on 15-12-1993 he was told how the innocent workers were got arrested. The Management finally decided to cook up a false case against the respondent. He was therefore, given Charge-Sheet on 18-12-1993 which was not only mala fide but also time-barred. Though it was not his duty to gas which work was entrusted to one Sarfaraz yet he was compelled to ,do that job. He purchased gas from the shop which Sarfraz had told him: The gas rate varied from time to time shooting up to. Rs,18 per kilo but he paid Rs,14 per kilo and the shopkeeper issued him the 'Cash Memo. Of that amount. However, the Charge- Sheet carried the allegations that the respondent purchased gas at lesser rate of Rs,11 to Rs,12 per kilo yet he managed to get Cash Memo. From the shopkeeper of Rs,14 per kilo. As a first attempt he was pressurised to admit his fault but when he refused to do so he was again asked to resign but that too he declined. According to the respondent the shopkeeper from whom he purchased the gas had in his presence informed Major (Retired) Naseer that he used to buy gas at the rate of Rs,14 per kilo and got the cash memo. Of that amount. On this even the shopkeeper was threatened that unless he gave statement as he was told he would be handed over to Police. Ultimately domestic enquiry was ordered against the respondent and Major (Retired) Naseer was appointed as Enquiry Officer. The respondent's case was that he was completely dissatisfied with the enquiry which was not held in a fair and impartial manner. The Enquiry Officer, being prejudiced and biased man he did not allow him to cross-examine the prosecution witnesses. Even his own statement was not recorded and statements of prosecution witnesses were recorded in his absence. As a result of such enquiry the Enquiry Report submitted by the Enquiry Officer which was made the basis of his dismissal was totally mala fide and unreliable.
2. In Reply Statement the appellant-Management denied the factual allegations and took certain legal pleas inter alia that as a storekeeper the respondent's duty was supervisory not involving manual or clerical job. It was also the case of appellant-Management that the respondent had no right guaranteed or secured under any law, settlement or award and further that he was found guilty of misconduct and was rightly dismissed in accordance with law. They also quoted enquiry proceedings in support of their case stating that the said proceedings bore signature of the respondent on each page, showing thereby that they were correctly maintained, and that he was present throughout the proceedings.
3. Besides the Affidavit-in-Evidence of the respondent himself, affidavit-in-Evidence of Muhammad Ajmal Khan, Muhammad Hussain and Moinnuddin were filed in support of the respondent's case.
On the other hand the case of the appellant-Management was supported by Affidavit-in-Evidence of Salahuddin Javed only. Excepting Muhammad Hussain and Moinuddin the respondent's other witnesses were cross-examined by the advocate of the opposite-party. I have heard the arguments addressed at the bar and also went through the relevant record available in the case file.
4. The foremost point to be determined was whether respondent was not a workman and consequently the grievance petition filed by him was not maintainable. According to the respondent's own version he was a workman- performing manual and clerical duties. His statement in this regard which was on oath stood unchallenged, as he was not cross-examined on this point by the advocate of the appellants' side. His evidence relating to his status of being workman was also corroborated by. His witnesses Ajmal Khan and Muhammad. Hussain who stated in their Affidavits that he was performing manual and clerical duties. Even the evidence of appellants' own witness Salahuddin goes to show that respondent was doing the duties of manual/clerical nature. In his cross-examination he admitted that respondent was storekeeper and Security Guards used to deposit their Uniforms with him and he maintained the record of issuing and depositing of their Uniforms. According to this witness he also maintained the record of the Stationery, besides issuing of Stationery articles to the staff concerned. He also made a voluntary statement that respondent maintained record of Boot Polish. Battery Cells and Gas Cylinders. From these admissions of the appellants' Company's own witness, the learned Labour Court Judge rightly concluded that the duties performed by the respondent were manual/clerical.
The learned Judge Labour Court also took notice of very important factor namely that the very holding of domestic enquiry against the respondent by the appellants-Management was by itself sufficient to prove that the respondent was a workman because otherwise he could not have been subjected to such kind of enquiry. In view of above evidence. I am in complete agreement with the findings of the learned Judge of Labour Court that respondent was a workman and the grievance petition filed by him was legally maintainable.
5. However, the crucial issue for decision was whether the respondent's dismissal from service was justified and was in accordance with law. Admittedly the dismissal was based on the Enquiry Report emerging from domestic enquiry held against the respondent. In course of arguments the Enquiry Report was made the target of severe criticism inasmuch as that it was conducted by Enquiry Officer who was seriously prejudiced and had biased mind. He did not allow the respondent fair opportunity to cross-examine the prosecution witnesses who were not examined in his presence. Moreover they were coerced to give evidence as the Enquiry Officer who was retired Army Officer exerted his influence for the statement as he liked. In this regard the respondent was fully supported by his witness Muhammad Ajmal Khan who stated in his Affidavit-in-Evidence that respondent was removed from service mala fide only because he refused to give false evidence and lodge false complaints against the workers of Brinks Company.
6. On the other hand not a single witness was examined by the Appellant Company to rebut the allegations with regard to enquiry and Enquiry Officer. Even Enquiry Officer was not produced in evidence to defend the truthfulness of the enquiry. True he was said to have died but the fact remained that all allegations made against the enquiry and Enquiry Officer were unshaken. The only witness of the appellant-Company was Salahuddin Javed. On careful perusal of his cross- examination it would show that he had made revealing admissions:-- "I was not present in the enquiry proceedings. I was not a witness in the said enquiry proceedings, the Affidavit-in-Evidence of the respondent was not read over to me, I only know that enquiry was held in my adjoining room, I do not know about the enquiry proceedings and what happened there in the Enquiry Room. I have no conern with the enquiry proceedings and Enquiry Report of the present case."
' Thus the only witness examined by the appellant-Company in support of their case pleaded absolute ignorance about the enquiry and enquiry proceedings and so also about the Enquiry Report. As a matter of fact he lent no support to the case of appellant-Company with regard to enquiry enquiry proceedings and Enquiry Report.
7. Apart from above the most important document namely the Reply Statement which is always considered as the basic document containing the pleadings of the respondent-Party (appellant- Company in this case) would not provide any help to the appellant-Company for the simple reason that the person who had signed and produced it was not examined as witness and therefore, could not be subjected to cross-examination. Even the Annexures including the enquiry proceedings and Enquiry Report of the Reply Statement which formed parts of the said statement could not be taken into consideration for the above reason. As such the Reply Statement alongwith.
Its Annexures were excluded from consideration. In this connection reliance has been placed on Supreme Court authority reported as PLD 1972 Supreme Court 25, wherein it was held:-- "Written statements cannot be the exhibits in a case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case. Written statement cannot be an Exh., if the defendant dies without being examined."
8. Thus the entire material contained in the Written Reply including its Annexure which obviously contains the material in favour of the respondent (appellant-Company in this case) stood excluded from consideration. With such exclusion of the Reply Statement the appellants-Company were left with no other evidence in proof of their version of the case except solitary witness Salahuddin who too as pointed out above had given no support to material parts of the appellants-Company's case. Reliance of learned counsel for the appellant-Company on 1991 PLC 174 was of no help to the Company. There was no dispute with the law laid down in the above reported case that evidence and written statement were two different things and gap created could be filled up by the other evidence. In other words an exclusion of written statement from consideration, the gap created by such exclusion could be filled up by other evidence. But in the instant case there was no such possibility. As discussed above the appellant-Company was left with the evidence of their only witness Salahuddin Javed but unfortunately his evidence could not fill up the said gap. The respondent's impugned dismissal admittedly based on Enquiry Report which being part of enquiry proceedings annexed with written statement stood excluded from consideration. Moreover as has been admitted by the said witness of the appellant-Company that he had remained so unconcerned with enquiry and enquiry proceedings including Enquiry Report as if for him the enquiry proceedings and everything connected therewith was "a sacred cow to be left untouched". With these conclusions the appellants-Company have miserably failed to establish the charge against the respondent. Even otherwise the Star Witness Moinuddin did not support the appellant-Company's case, even though the respondent's statement that the above witness was coerced to give evidence may not be true yet it was clear from his evidence that he gave him cash memo. Of Rs,14 per kilo for the gas he purchased from him though he actually paid him Rs,12 per kilo. The question arose why should the witness show such dishonesty for the respondent. They were total stranger before they came in contact with each other, with regard to gas dealings if the version of the appellant-Company was accepted that though the respondent paid Rs,12 per kilo for the gas he purchased yet he got the cash memo. From the shopkeeper for the amount of Rs,14 per kilo then the factual presumption would be that even the shopkeeper shared with the respondent the extra money over and above the actual rate. Then his status would not be better than an accomplice. For this reason it would be most unsafe to base the conviction of the respondent, on the evidence of such witness who was either coerced to give evidence or was induced by money consideration for such evidence.
9. The upshot of the above discussion is that I am convinced that the appellant-Company failed to make out a case for dismissal of respondent from service. Therefore, while upholding the judgment of the Lower Court. Appeal is dismissed.