FAZAR ALI Versus MESSRS EAST PAKISTAN ENTERPRISE LTD., DACCA

ORDER

1. MD. NURUL ISLAM KHAN (CHAIRMAN). ‑These two applica tions under section 25 (1) (b) of the East Pakistan Employ ment of Labour (Standing Orders) Act, 1965 (hereinafter referred to as the Act) have been, filed by 2 individual workers against the same second party for their re‑instatement to their former posts after setting aside the Company's order of dismissal.

2. Their case is that they were appointed on different dates in their posts and they became permanent in due course. Thereafter the Company drew up charge‑sheet against them and verbally dismissed them on 16‑9‑68. They were taken into Police custody for some assault on Dhanu Mia, a darwan. They sent grievance notice on 20‑9‑68 which was not replied to till 23‑10‑68. On 24‑10‑68 the first parties filed complaint cases in the Labour Court. The second party sent a show‑cause notice during the pendency of the said cases on 24‑10‑68. They replied to the same. But the second party without holding a proper enquiry and without affording them Opportunity to defend their case and without examining adequate number of prosecution witnesses, and having failed to establish the charges against them in absence of proper evidence and without giving them a chance to adduce their evidence in the case held an enquiry of arbitrary nature and later dismissed them.

3. As against this order they sent a grievance notice on 12‑12‑68. The second party replied. . But it was found unsatisfactory. Hence the present applications with prayer for re‑instatement to their former posts.

4. The second party entered into appearance by filing written statements in both the cases. The case of the second party is that these workers were duly prosecuted and charge‑sheeted for alleged assault on Dhanu Mia Darwan. They were handed over to Police and a criminal case was started. It was somehow that they were discharged by the criminal Court. A departmental enquiry was conducted by an officer of the Company. The workers were given proper facilities and opportunities to defend their case. They did not adduce any evidence nor cross‑examined the prosecution witness and did not even sign the statements. They were found guilty and accordingly were dismissed. Their applications should be dismissed.

5. The two cases arc being dealt with together for the sake of convenient discussion and decision.

6. Points for determination

(1) Whether the two first parties were illegally dismissed from service?

(2) What relief, if any, are they entitled to?

7. FINDINGS AND. DECISION

8. Points 1 and 2.‑Both the points are taken up together for the sake of convenient discussion and decision.

9. Witnesses were examined from both sides. The first parties Fazar Ali and Abdul Hai both were examined and cross‑examined. Another witness Samsul Haque was also examined. The second party examined 2 witnesses. All docu ments and papers in this connection were produced. From a careful perusal of the evidence on record and the documents submitted during hearing, it appears that these two workers were charge‑sheeted and prosecuted for alleged assault on darwan Dhanu Mia. But they were discharged by the criminal Court for lack of evidence. In the meantime the second party held an enquiry with O. P. W.

2. He could examine only the complainant in original case, that is, Dhanu Mia who could not produce any witness for examination and cross‑examination. On a scrutiny of the records it appears that the only witness who was examined could not substantiate the charge against the first parties. The first parties clearly established that the hole matter was very haphazardly dealt with by the second party. They were not allowed to join after their return from hajat. In fact, the record shows that in the domestic enquiry there was a colossal lack of proper distribution of justice to the parties. Only one witness could not have proved the charge by his self‑same assertion. There ought to be some corrobora tion in the matter particularly from Sher Khan who was said to be the rescuer of the said complainant Dhanu Mia. No other witnesses were examined by the Complainant. Already we have seen that the second party failed to prove the charges against the first parties in the Court. So as the charges failed, it could not be a case of misconduct. A long period has elapsed since these 2 first parties have been dismissed from service, and they have suffered a‑ lot due to their non‑employment. So though a large sum of money would be now involved, it is felt that the first parties should be given at least half of the back wages.

10. In the result, the first parties are entitled to get relief.

11. The applications are allowed on contest and the second party is directed to re‑instate the first parties to their former posts within thirty days of passing this order and to pay the back wages to the extent of half of the total wages which have fallen due since their dismissal till the date of their joining to duties.

12. I have consulted the Members and considered their written opinion who have agreed with my decision above.