RAB NAWAZ Versus RICE EXPORT CORPORATION OF PAKISTAN LTD.

ORDER

This is an application for the redress of the grievance against the management of the Rice Export Corporation challenging the dismissal, on the basis of the enquiry, which according to Mr. Rab Nawaz, the applicant concerned was illegal and based on victimization.

2. Applicant was charged, with misconduct on two allegations. One pertained to show‑cause notice of 20‑5‑1978 and second notice, pertained to 21‑5‑1978.

3. The charge of 20th May, 1978, was on these lines, that he was chowkidar on the gate, and remained absent from his post without permission for 2 hours. The second charge, was that on 21st May 1978 he assaulted Mr. Fazal Hussain with stick.

4. However, the enquiry was conducted. He was dismissed from service. He preferred the petition before the Labour Court. The Labour Court directed re‑instatement on the point of law that right of nomination of the co‑worker was denied to the applicant. The matter again proceeded before the Labour Court after the completion of the enquiry. The learned Court, in very brief order held that applicant is chowkidar and is not falling within the definition of workman. The application was dismissed. The matter was again challenged before the honour-able High Court in the constitutional petition. His lordship, the honour-able judge, remanded the matter by issuing directions that this matter be decided on merits.

REASONS

1. Both counsels have referred to the decision of his lordships for reference: Mr. Mahmood Mubassir has contended that the finding of the workman is given by his lordship, and, therefore, no further evidence to be produced that applicant Rab Nawaz is not a workman. In this context the Court refers to the paragraph 8 of the judgment.

"Therefore, merely because a person performs some duties of clerical or manual nature, would not bring him within the purview of the definition, unless it is shown that such duties form a substantial part of his work. If this test is applied, then in our opinion, the petitioner clearly falls within the purview of the definition in question. The duties performed by him which include opening and closing of the gate, physical search of the trucks, counting of the bags, checking of the quality of rice, and conducting search of a person etc; clearly fall within the ambit of the definition of workman."

2. Applicant has also produced the additional evidence after the remand of the case. In this evidence, he has again repeated that he used to open the gate for allowing the trucks to enter in the godown. The loaded trucks came from the main gate and from the main gate also, the trucks used to pass."

3. The witness further repeats, "sometimes I was posted at the gate, sometimes at the watch tower and sometime did the patrolling. He also used to get the gate passes from the truck driver. He used to take the sample from the bags, loaded in the truck. He used to count the bags. He used to check the entire truck. He used to give rounds to, the godown. Sometimes if the bag fell down he used to carry the bag to the godown. He also used to prepare tea for the officers".

4. With this brief evidence of the applicant on the point to show that he is a workman, in the first place the opinion of the Labour Court, issue of workman has already been decided and no further evidence was necessary. If the evidence is led by the applicant, it was under this conception that the directions given by the honourable High Court, was to decide on merit. In paragraph 8, the Court finds that the legal issue of workman has been decided that Mr. Rab Nawaz is not a workman by reasons of the duties, found in paragraph 8.

5. The second question relates to the fairness of the charge sheet on merits.

6. In the earlier evidence recorded before my predecessor applicant examined Mr. Raees Ahmad Khan who was the President of the Rice Export Union. He has also supported the applicant that he used to stop the trucks, count the bags and take out the rice from the bags loaded on the truck, in addition to the duties of making tea, fighting with the thieves who did the pilferage. In short this evidence on the point of workman was already there. It, therefore, confirms that issue of workman was decided. Now the pertinent question is regarding the charge‑sheet.

7. On behalf of the applicant Mr. Muhammad Ishaq was examined. His evidence is significant. What he says is as follows:

"Prosecution and his witnesses were given facility of recording the evidence at Pipri. But no facility was given to the applicant and his witnesses, who were examined at Head Office in Karachi. He has further criticized the enquiry finding as one sided.

8. In the cross‑examination the witness has further disclosed that he did not raise any objection to the conduct of the enquiry as Enquiry Officer had assured of fair and impartial enquiry. He further has said that he had objected to the presence of E. G .Shah , but it is also correct that he was also witness before the Enquiry Officer. He further did not object to the recording of evidence at the Head Office.

9. The second witness is Mr. Inayat Ghaffar Shah. He has supported the enquiry and the proceedings. He is the Manager Security. Following are the extracts of his evidence:

"The Show‑cause Notice dated 20‑5‑1978 is captioned as first show‑cause notice, whereas the second show‑cause notice, dated 21‑5‑1978 does not bear the word first. I appeared as a witness before the Enquiry Officer and not as a prosecutor. Nobody acted as prosecutor. I did not obtain written complaint of the witnesses in relation to the incidents dated 20‑5‑1978 and 21‑5‑1978. It was not necessary to issue charge sheet after the receipt of the reply of show cause. A /12 was handed over to the applicant in the office of the Secretary and Annexure‑A/13 was given in the office of Private Secretary to Chairman. Secretary RECP was not required to sign Annexure‑A/12, as matter relating to security came within my jurisdiction. Annexure‑A/11 is signed by the Secretary as it was addressed to Chairman."

10. The applicant has also examined himself. Certain extracts of his evidence relevant to the point in issue also need attention:

"On 20‑5‑1978 I reported for duty at 11‑00 a.m. I contacted Major E.G. Shah. Chowkidar Fazal Hussain was already present. I had no talk to Fazal Hussain. But after coming out of the room of E. G. Shah, there was exchange of harsh words between me and Fazal Hussain because he had sent me to bring sugar in the morning. I did not inform Mr. E. G. Shah about the fact of sugar. There was no quarrel between me and Fazal Hussain on 21‑5‑1978. He also admits the reply given to the management in response to the show cause A/2. The witness further says "that Fazal Hussain got him released from police custody. It is not correct that Sultan, Ataullah and Muhammad Anwar Khan got him released. He has also supported his earlier statement in the first enquiry and admitted that he did not examine the defence witnesses. He has also admitted that he did not object to the conduct of the second enquiry. This witness has further denied that he was not doing manual work by means of suggestion that the counting of bags was the function of the duty clerk. He has also made further disclosure that all chowkidars used to do the duty of peons."

11‑ The Court further refers the additional evidence brought on the record after the case is remanded. Certain extracts of the evidence of Mr. Rab Nawaz are given as under:

"I see the enquiry proceedings. It is signed by me. I did not fight with Fazal Hussain. It is not correct that Sultan, Ataullah and Muhammad Anwar signed the bond and I was released. It does not bear my signature. It is correct that on 20‑5‑1978 I was absent. It is not correct that I gave stick blow to Fazal Hussain on 21‑5‑1978. It is not correct that I had abused to Fazal Hussain on 21‑5‑1978. I had participated in the second enquiry. I examined the defence in the enquiry. Statement of the management was also recorded."

12. There is also additional evidence of the respondent. The relevant extracts of evidence of Mr. Fazal Hussain are given as under:

"At the time of physical assault he abused me. It was duty hours of the workers. There was no eye‑witness. I gave the oral complaint but not in writing. Incident took place at the distance of 600 yards from the main gate. He abused me outside the premises. The report was made at the Police Station which was in my handwriting. Police arrested app Were He was in police custody and released on 24‑5‑1987. There is no medical examination. Good people intervened. Rab Nawaz tendered apology before Police Officer in my presence. It is not correct that this was false signature. The apology was in the handwriting of Rab Nawaz. When I went to give evidence, Abu Saeed myself and Rab Nawaz were present."

13. The last witness is E. G. Shah. He says that when his evidence was recorded Abu Saeed Applicant and he was present. I took action on the oral complaint. Accident took place outside the factory where there was physical assault. He had also misbehaved by abusing Fazal Hussain inside the premises. I received the written complaint also. Fazal Hussain also lodged the complaint on my instructions on 21‑5‑1978. Police did not record F.I.R. He was taken in police custody upto 24‑5‑1987. Three persons, resident from the neighbourhood intervened and he was released. He has no knowledge whether Rab Nawaz tendered apology before Police Officer. "

14. With this evidence on the record of this Court, the question that follows, whether Mr. Rab Nawaz was absent from duty on 20th May 1978 for 2 hours and secondly he assaulted Mr. Fazal Hussain on 21st May, 1978. Court has also gone through the finding of the Enquiry Officer which runs in the volume. The Enquiry Officer has discussed the evidence and given his own observations about the disbelieving of the evidence of defence witnesses. His reasoning is reflected in paragraph 21 of his enquiry report. He has pinpointed how he disbelieved Mr. Rab Nawaz about the incident of 21‑5‑1978. He has particularly referred in his own reply to the second show‑cause notice. According to his version he was called on 21‑5‑1978 by Fazal Hussain and abused. But in the statement, before him Mr. Rab Nawaz claimed that on 21‑5‑1978 he was not in Pipri. This statement that no incident took place on 21‑5‑1978 was contradictory to the statement of his own dated 13‑6‑1975 before previous Enquiry Officer that the quarrel leading to the exchange of the words and blows with Fazal Hussain did take place. He simply denied his signature on the apology before police. In other words the Enquiry Officer weighed his evidence and held him guilty with only the observation that apology was disowned by Mr. Rab Nawaz.

14‑A. Whether Court can disagree with the finding of the Enquiry officer, the argument may be raised that Labour Court has limited scope under section 25‑A to go into the factual aspect which was purely the province of the Enquiry Officer to examine except on the question of law. Subsection 5 is very clear that Labour Court shall go into all the facts and pass such order which may not only be proper but also just in the circumstances of the case under adjudication. To put it in simple words Court, can again re‑examine the evidence and come to its own conclusion.

15. Among two charges, one is of absence, of 20‑5‑1978. If Mr. Rab Nawaz has admitted so expressly in his additional evidence before this Court that he was absent on 20‑5‑1978, which Court has underlined. The Court has nothing further to add that he was not absent, for whatever short time, he was away from active duty and whatever, may be reason that he was sent by Mr. Fazal Hussain for bringing the sugar. This is clear admission. What are the extenuating circumstances to mitigate the liability of punishment, that is secondary question. The Court will discuss at the later stage when Fazal Hussain had denied to have sent Mr. Rab Nawaz for bringing sugar etc: Likewise the Enquiry Officer being judge of the fact has also taken the entire appraisal of the evidence.

16. Another count on which the charge of misconduct is based is of 21‑5‑1978. This is the day of the incident where it is said that he struck the stick blow to Fazal Hussain. The Court has examined the evidence, the finding of the Enquiry Officer, the evidence of the witnesses, whose evidence has been reflected in the enquiry report. The evidence of Rab Nawaz and the respondents ‑before this Court, was additionally recorded before this Court with the consent.

17. How far there is accuracy of the version, which has come before the Enquiry Officer and before the Labour Court is the main question. Firstly there is evidence of Ghaffar Shah before this Court. He pracisely states that incident took place outside the factory. Rab Nawaz physically assaulted him. He also abused him prior to this incident within the factory premises. He has not given the details whether he was given the blows with the stick.

18. The next witness is Mr. Fazal Hussain. He 'states that he was physically assaulted and abused. It was the time of duty of the workers. There was no eye‑witness of the incident.

19. Third witness is Mr. Rab Nawaz. He has denied that he had assaulted Mr. Fazal Hussain.

20. If the evidence is approached from this angle the position appears to be very simple that there was no witness present in whose presence Rab Nawaz assaulted Fazal Hussain. Fazal Hussain is the only witness who has made the statement on oath before this Court like Mr. Rab Nawaz. With this background, the Court has further examined the circumstances, how far the circumstances give the least indication that Mr. Fazal Hussain was actually assaulted by Mr. Rab Nawaz. The Court has seen the report of the Enquiry Officer Mr. Abbas Raza who corroborated the version of Mr. Fazal Hussain. Fazal Hussain himself made the statement before Mr Abbas Raza that Rah Nawaz had struck him with iron pipe. These inaccuracies, of sometimes, speaking of lathi, or stick, or iron pipe, has given lot of scope for deliberation If the respondents have tried to establish their case that Mr Rab Nawaz made the statement on 13‑6‑1975 before previous Enquiry Officer, that the fight, led to the exchange of words and the blows which is contradictory to what he had stated in the second enquiry, and, therefore, the version of Fazal Hussain may be read as correct, the Court has examined the evidence of Mr. Rab Nawaz earlier recorded and also the document A/3 before the Enquiry Officer who was the previous Enquiry Officer and other circumstances, such as that evidence also has been brought before the Labour Court that Mr. Rab Nawaz was also arrested by police after the incident. He executed the bond and tendered an apology. This apology has been disputed. The Court has given anxious consideration to the entire aspect. In the first place the admissions or confessions before police officer are not admissible. Whether it is a criminal case or a civil suit or even enquiry. The reason being that the accused being in police custody, as in the present case, where no F.I.R. was filed and accused put in police custody without the remand, much can be said that the evidence of such nature will be considered with great caution. It is caused by inducement, coercion, what the law of evidence contemplates is its evidentiary value. In the peculiar case like his, how the accused was taken to police station without F.I.R. and apology written, much can be written. This aspect of the evidence, therefore, the Court is not going to rely, whatever had happened during police custody without following the legal procedure known to the law of evidence.

21. The Court has also further taken factual inspiration that their own witness has made unqualified statement regarding the inaccuracy of the weapon used. If it is contended that statement was recorded on 13th where Mr. Rab Nawaz admitted of the fight, the statement A/3 was not under the cross‑examination. It also speaks of the incident of 20‑5‑1978 and not of 21‑5‑1978. No doubt Mr. Rab Nawaz had admitted that there was exchange of harsh words between him and Fazal Hussain but those admissions are in respect of the day of 20‑5‑1978 when he remained absent and came from the room of E. G. Shah who questioned him about his absence. This circumstance alone cannot take the place of the proof that he was beaten or Rab Nawaz had beaten him, as the story has developed.

22. The Court will sum up conclusion on this point in few words. If both parties take oath, with all the responsibility they take, each one giving reflection of truth, for the Court to believe that they both are right, they reflect the state of mind. It is certainly difficult test for the Judge. It is there, the Court is to examine the circumstances, their peculiarities and the quality, whether what the witness speaks truth, is simply the witness has given the falsehood to wreck vengeance to obscure truth, ignoring all the ethical and moral weight.

23. Precisely, therefore, the Court is of the opinion that even Mr. Fazal Hussain has made the statement on oath, it has not stood the test in respect of the injury which was not even supported by the medical examination. There is no evidence of eye‑witness, to give the confidence when the circumstances surrounding, were favorable to Fazal Hussain when the workers on duty, at that relevant time could support him which they have not done.

24. Above all the inaccuracy of the weapon is further reflection of the state of the mind of Fazal Hussain himself whom Mr. Abbas Raza has proved rather witness of truth before the Enquiry Officer.

25. Lastly number of points have been taken in general, that Enquiry officer put the questions, assumed the role of prosecutor. He was partial and had the partisan attitude. Their statements were not recorded at Pipri.

26. These points of criticism have no force. Rab Nawaz actually participated, produced the defence. He made no move by filing application before the Labour Directorate or before the management for the change of the Enquiry Officer. If the Enquiry Officer put the question for clarification, he also puts himself in the position, as the Judge under the Law of Evidence, to appreciate the evidence on proper reception of mind to the issue involved, as long as clarification is no more than to take unusual place of partiality. It will be otherwise confining the Enquiry Officer to the technicalities.

27. There is also no bar for the Enquiry Officer to record evidence, whether at the Head Office or at the place of working, as long as the judicial requirements of the enquiry are not transgressed.

28. Finally the question will be whether the absence of Mr. Rab Nawaz in respect of the first count, if admitted by him, even for 2 hours was intentional absence or unintentional. Where again the Court repeats that the second count relating to the charge of assault if it was false has given greater scope of deliberation which has inter‑relation to the incident of absence of Mr. Rab Nawaz which is his own admission. But he has qualified it that two hours absence was due to the fact that Mr. Fazal Hussain asked him to bring the sugar, and therefore, he left the security duty. He also supports his absence that at the time when, Fazal Hussain had gone in the house of Rab Nawaz, chowkidar Khushi Muhammad, Sultan Muhammad contractor and Anwar Khan Hotel owner were present. Even if the Court accepts the presence of these persons as per statement of his own before Enquiry Officer, the next question arises that if Mr. Fazal Hussain was not the administration Manager or the highest security boss why did he leave the duty of security, which is of highly sensitive nature. This defence cannot equate him, when he had not obtained the permission of the Manager Security. He himself has said in his own evidence that when he came out of the room of E. G. Shah when called by him, there was exchange of harsh words between him and Fazal Hussain outside the room of the Manager Security, but at the same time he frankly admitted that he had not informed E. G. Shah that Mr. Fazal Hussain had sent him to bring the sugar. Why he concealed the fact from the Manage Security. Consequently the absence however, short it may be, it is a misconduct, if it is not coming within the classification of the acts and omissions (clauses), yet it falls within the clause (g). But clause (g) also provides that breach of law applicable to the establishment must be habitual. Section 15 speaks of the punishment that workman may be reprimanded or fined in the manner prescribed under the Payment of Wages Act upto three paisas in the rupee of the wages Payable to him in the month for any of the following acts and omissions namely in case where the Payment of Wages Act is applicable, the list of the acts and omissions for which fine may be leveled shall be the same as approved by the Chief Inspector.

29. In other cases following shall be the list of acts and omissions such as the disregard or disobedience of the rules or orders which is attracted in this case. Subsection 2 further speaks of the misconduct with regard to the liability of punishments of various natures. Subsection 3 speaks of the acts and omissions which shall be treated as misconduct. So the acts and omissions which are treated as misconduct and certain acts and omissions are not the misconduct. For the misconduct the degree of punishment is provided and for acts and omissions the punishment is provided of reprimand or fine in the manner prescribed under Payment of Wages Act.

30. The Court, therefore treats his absence as the disregard o the rules and awards censure to be entered in his file in the post of security.

31. Regarding other objections that Enquiry Officer was not impartial or have raised the questions of the inefficiency or delay in the disposal of the enquiry in view of paragraphs 12 to 15 in its plaint. He has accused the Enquiry Officer under the influence of the management or holding the enquiry at different places or he could not get the access to the Chairman for the representation of his grievances, all his contentions have no force. The Enquiry Officer is a better Judge to hold the enquiry at any place. If he could not see the Chairman but instead met the E.G. Shah Manager Security, who adjourned the enquiry on his own notion, these are the official business rules what Mr. E. G. Shah thought better in the administration, he acted accordingly. No victimisation or prejudice can be measured on simple imagination of one Chowkidar in the matter of administration. He appeared before the Enquiry Officer. He was given every chance to put up the case. He has also cross‑examined the witnesses in this Court. The Court finds no prejudice of the nature to be taken as an exception, where the Enquiry Officer departed from the requirements of the enquiry in the domestic forum: However, the Court has again seen the evidence and given its opinion.

32. Regarding the arrest of Mr. Rab Nawaz without following the legal procedure was certainly the breach of the fundamental right. He was to be followed according to law.

33. Regarding the persons who appeared to get him released Mr. Rab Nawaz has only spoken of being alone and criticised the annexure A/3 that this apology before Police Officer was under compulsion. This apology in the opinion of this Court has no weight whatsoever, on the illegal arrest. There have also been discrepancies regarding the written complaint in the evidence of Mr. E. G. Shah and Mr. Fazal Hussain. Much can be said about the second charge of assault and the illegal arrest, with whatever degree of criticism, Court can direct about the fabrication of falsehood.

34. But this is not to be ignored that the worker was also responsible for the absence from duty even for two hours of the security. Mr. Mahmood Mubassir counsel for the applicant has referred to 1973 PLC 9281. He has referred the case law to emphasize that absence of two hours is not a misconduct but certainly the facts of his absence if established, bring the case of this workman under section 15 clause (2), what is called the disobedience of the rule or the order. His liability towards the employer cannot be reduced, for he is paid and is to account for, for the purpose of legitimacy of his earnings. It is no ground that Mr. Fazal Hussain asked him to bring the sugar and, therefore, he can ignore what is called a sense of duty in the absolute sense, the impugned order of dismissal is modified with the minor punishment of reprimand on the ground of his absence for 2 hours due to breach of rules, and in future, he should be careful.

35. Regarding his re‑instatement he will be entitled to the back benefits which accrued to him before this cause of action. If he is held guilty, even of minor punishment, what the Court holds as the charge of absence established, he cannot be entitled to the benefits accrued to him during litigation firstly he has not worked physically to earn the prosperity of the office where he works. Secondly the charge, however with a stigma remains proved against him, it is I‑a punishment and he is entitled, to benefits before the period of litigation only.

36. The Court has given the reprimand under section 15 what the Court feels that the acts and omissions referred "in other cases" used in clause (2) of section 15 obviously refers, that besides the major punishment or the minor punishment referred in subsections (2) and (3), the Labour Court has also the jurisdiction to pass order what is just and proper in the circumstances of the case i.e. doing justice to both the sides.

37. Mr. Mahmood Mubassir has referred case law P L D 1978 SC 239, 1970 L L C 275, 1972 L L C 302, 1964 LLC 29, 1978 PLC 173, 1974 LLC 94, 1974 PLC 36, 1973 PLC 281.

38. Application is allowed. Applicant is re‑instated. Intimation be sent within 15 days. Both parties should make sincere efforts to end the litigation.

A.E. /984/Lb. S

Application allowed.