' Raja Ghazanfar Ali respondent was an employee in the management of the appellant. He was also President of the CBA union of the management. He was dismissed from service on the charge that on 29-3-1993 he instigated the workers and formed a procession who chanted slogans against the management and used abusive language. One other office-bearer namely Muhammad Idress (respondent in the connected Appeal No,1 of 1998) was also proceeded against on the same charge and he was also dismissed. One Saeed-ur-Rehman was involved in the same incident but on the basis of compromise between him and the management he left the service.
The respondent Raja Ghazanfar Ali being aggrieved of his dismissal filed a grievance petition under section 25-A of Industrial Relations Ordinance, 1969 before the Labour Court. The evidence of the parties was recorded and the respondent was ordered to be reinstated in service by the Labour Court vide judgment dated 16-10-1999. The said judgment has been impugned by the appellant by way of the instant appeal.
2. The learned Presiding Officer of the Labour Court observed that the inquiry conducted against the respondent was improper as the same was done ex parte. No proper opportunity was given to the respondent and the Inquiry Officer appeared to be inclined towards the appellant management.
3. The learned counsel appearing on behalf of the appellant has argued that the learned Labour Court landed in error in holding that no proper opportunity of hearing was given to the respondent by the Inquiry Officer. He contended that on 7-4-1993 the matter was fixed for carrying the proceedings of inquiry on which date the respondent made a request for adjournment. The inquiry was thus adjourned to 8-4-1993 but on the said date the respondent failed to appear before the Inquiry Officer, therefore, the Inquiry Officer was justified in proceeding against him in an ex parte manner. His second contention was that the respondent was working in a supervisory capacity and was drawing wages of more than Rs,800 P.M., therefore, he did not fall within the definition of workman and as such the learned Labour Court has wrongly assumed the jurisdiction over the matter.
4. On the other hand the learned counsel appearing on behalf of respondent has defended the impugned judgment and argued that the dismissal of the respondent by the appellant was entirely because of the union activities as the respondent was the President of C.B.A. Intensifying his arguments he urged that out of a lot of more than 50 persons only three persons were selected for the penal action by the appellant. No other worker was proceeded against. He also urged that the learned Labour Court had legitimately drawn the conclusion, on the strength of recorded evidence, that the inquiry was bad in law and the respondent was not given any opportunity to defend his position.
5. I have considered the rival arguments of the learned counsel for the parties in the light of the record. Admittedly the respondent had not participated in the inquiry proceedings. The record indicates that the respondent appeared before the Inquiry Officer on 7-4-1993 and the inquiry proceedings were postponed, according to the appellant to the following day i,e, 8-4-1993 but according to the respondent it was adjourned to 18-4-1993. The written application Exh.P.W.1/8 bears endorsement of the Inquiry Officer that it was adjourned to 18th April. The same document was produced from the appellant side as Exh.R.W.2/l. Interestingly R.W.2/1 which came out from the possession of the appellant also bears the date as 18th April. When the learned counsel for the appellant was confronted with this document, he assessingly answered that it could be interpolated by the respondent. The answer has no force as the respondent had no reach to the document which was in possession of the appellant. No evidence has been produced from the side of the appellant to the effect that Exh.R.W.2/1 was interpolated by the respondent. Be that as it may, if the respondent had failed to appear on 8-4-1993, the Inquiry Officer was required to have issued a notice to the respondent for the next date fixed for inquiry. The ex parte proceedings, in the circumstances, were not justified and the learned Labour Court has rightly rejected the inquiry conducted against the respondent. On another ground too the inquiry was not legal as Saqeb Lone the Inquiry Officer had made admission in his statement recorded on 22-7-1996 to the following effect:-- "I had personally seen petitioner coming out of the office of the General Manager. I had personally seen the petitioner shouting calling names and raising slogans against the management".
' This eloquent admission leads to define the Inquiry Officer as an eyewitness. By no canon of fairness it can be accepted that an eye-witness should be appointed as an Inquiry Officer. Once a person happens to perceive certain things through his own eyes than it becomes highly illogical that such a person would be able to assess the evidence recorded by him with an impartial mind.
Reference can advantageously be made to 1967 PLC 446, 1979 PLC 118, 1976 PLC 8 and 1976 PLC 779.
Thus on this score alone I feel that the inquiry was not legal and resulted into serious prejudice caused to the respondent which deserved setting aside. It is also a matter of record that only three persons were chosen from amongst the workers out of whom the respondent was the President of the union which demonstrate the bias mind of the appellant patently on the ground of his being an activist of the union activities. No explanation is forthcoming from the record as to why the other workers who, according to the appellant, participated in the procession were spared. Even the learned counsel for the appellant could not give any explanation on this point.
6. On the other limb of the arguments of the learned counsel that the respondent did not fall within the purview of the workman, I may observe that throughout the respondent was proceeded against under the labour laws. In the charge-sheet the respondent was appraised of his act as a gross misconduct within the purview of Standing Order 15 of the West Pakistan Industrial and Commercial Employment Ordinance 1968. In the notice of dismissal Exh.P.W.1/10 the respondent was addressed in the following language:-- "You are, therefore, adjudged guilty of misconduct under Standing Order 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and hereby dismiss from service with immediate effect."
' The appellant has failed to bring on record any evidence that the respondent had the authority to proceed against any worker. In case of Swissair Transport Co. Ltd., Karachi v, Malik Ghularn Hussain and 2 others (1980 PLC 312), while dealing with the question of workman it was observed thus:-- "As even under the amended definition of "worker", it is necessary to determine whether although he was getting wages of above rupees eight hundred he was employed in a supervisory capacity the nature of duties performed status of an employee does not depend upon designation or salary and work which he actually does not alone could serve as a criterion to decide whether he was employed in a supervisory capacity. Reliance in this respect is placed on the decision of this Court in Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another PLD 1975 Kar.
342."
' On the facts and circumstances stated above, I feel no force in the arguments of the learned counsel for the appellant. The judgment of the learned Labour Court is well founded and not open to any interference. Consequently this appeal is dismissed.