MISS KHURSHEED SHAFIULLAH Versus MESSRS PARK DAVIS & CO. LTD.
ORDER
Since common questions of law and fact are involved in both these applications they are being disposed of by this consolidated order.
2. Both the applicants were permanent workmen employed with the respondents as Packer/Machine Operator. On 8th September, 1985, they were served with a charge‑sheet alleging therein that on 3 rd September, 1985, at about 10‑10 A.M. they fought with Miss Agha Nusrat, a co‑worker and used abusive language against her. It was further alleged against applicant Miss Shamim Shafique that she slapped Miss Agha Nusrat on her face thereby causing injury on her left cheek. The allegations were disputed by both these applicants who also submitted a compromise application in this behalf. The explanation furnished by the applicants was not found satisfactory and consequently domestic inquiry was ordered against them and Mr. Ahmed Nasim, Assistant Manager, Quality Control was appointed as Inquiry Officer. Inquiry found awe guilty misconduct, and as a result both them were dismissed vide order dated 15 th December, 1985. The applicants challenged their dismissal through grievance notice, but with no success. They have, therefore, approached this Court with a prayer for re‑instatement with all back benefits. The case of the applicants in main is that the order of dismissal is mala fide and is not borne out from the record.
3. The respondents have controverted the allegations based on facts. According to them the applicants were involved in an incident leading to serious breach of discipline and the action against them was taken after due inquiry with a view to ensure the maintenance of discipline.
4. The applicants have examined themselves, while the respondents examined Mr. Ubaid‑ur‑Rehman Usmani, Director Human Resources on their behalf.
5. Subsection (5) of section 25‑A of the Industrial Relations Ordinance, 1969, defines the jurisdiction of the Labour Court as a Tribunal of facts in regard to the matters which have been dealt with by the domestic inquiry. The words "in adjudicating and determining a grievance" and those that follow namely," shall go into the facts of A the case" have not been used for decoration purposes only. Therefore, if the legislature in its wisdom has chosen the words of far reaching consequence their meanings cannot be construed in a limited sense. The Labour Court will, therefore, have full powers to enter into questions of fact and to arrive at its conclusion regardless of the finding of domestic inquiry.
6. Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provides for punishment of misconduct. Clause (h) of Standing Order 15(3) is relevant in these cases and for the sake of convenience is reproduced below:‑
?(3) The following acts and omissions shall be treated as misconduct:‑
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(h) ??????? riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline."
This clause is thus divided into two parts which are disjunctive by the use of word "or". It is, however, the case of the respondents that the charge against the applicants covers both these parts I have to make use of the material before me in its present condition and not as it appears to the respondents.
7. I now embark up before the Inquiry Officer to satisfy myself whether the incident as alleged by Mr. Qaiser Muhammad Section In-charge has taken place in the manner as stated by him and whether the version of incident that he has given is rendered doubtful or improbable by the existence of any circumstance or having regard to the natural course of events. 1?have also examined his story in juxtaposition to the version given by the applicants to see whether I could reasonably reach a conclusion that the latter version could be held to be true or that it in any appreciable measure renders the story of Mr. Qaiser Muhammad such, which it might not be safe to accept in order to base it for the dismissal of two innocent ladies.
8. The record as it stands shows that the management of the respondents have deliberately and knowingly concealed the report made by Miss Agha Nusrat soon after the incident. This report was undoubtedly a most important document in these cases, specially when the venue of the incident and the manner in which it had occurred is very seriously disputed by the applicants. The applicants have all along demanded .the copy of this report which is evident from pages 3, 4, 9 and 10 of Inquiry Proceedings (Annexure R/4). This factor, therefore, lends support to the version of the applicants that the incident took place outside the Printing Section while they were returning after taking tea, in tea break and that it was Miss Agha Nusrat who was responsible for this unpleasant situation. No prejudice was caused to the worker for non‑production of such report in the case reported in 1987 P L C 23, cited by Mr. A. Hafeez, learned counsel for the respondents, but in the present case the prejudice is on the face of the record and this circumstance, therefore, cannot be brushed aside lightly.
9. While considering the evidence as a whole and arriving at a certain conclusion on the basis thereof, there are three things which may be kept in view; the volume of the evidence, the weight of the evidence and the probability of evidence. It is the cumulative effect of all the three aspects of the evidence that finally determines a certain question of fact, though the extent to which each one of them may influence the decision would be materially different.
10. This regrettable episode is a sequal to an ordinary occurrence, viz. comments on cutting of hair. Quite admittedly it was Miss Agha Nusrat who had passed certain remarks about the conduct of the applicants to Miss Farah who had conveyed these remarks to them. In my view the applicants who were returning to their section saw Miss Agha Nusrat outside the room and sought clarification from her resulting into the exchange of hot words. The evidence of Miss Kaneez Zohra, the only eye‑witness in this case supports this conclusion. She has admitted in clear terms that she did not hear the conversation in between the parties although she was working at a short distance from Miss Agha Nusrat (as admitted by Miss Agha Nusrat herself). This admission fully establishes that the incident took place outside the room and not inside it, otherwise there was no reason for Miss Agha Nusrat to call Miss Kaniz Zohra for help. The evidence of Miss Kaniz Zohra further makes it clear that it was purely a private affair. Undue importance has been attached to the corroborative evidence of Mr. Qaiser Muhammad and Mr. Muhammad Yousf. Certainly corroboration of this kind is by no means conclusive. Cases do arise in which witnesses tell a lie at the outset and stick to it throughout repeating it over and over again and it is as well not to lose sight of the fact that any number of repititions will not make a false story true.
11. An attempt has also been made to prove the factum of injury on the person of Miss Agha Nusrat through medical certificate (R/7, which on the other hand demolishes the case of the respondents. The relevant extract of this certificate reads as follows:‑
"This is to certify that Miss Agha Nusrat, aged 22 years of M/S Parks Davis came in Emergency Department of this hospital on 3‑9‑1985 (A.N.) with a history of accidental injury on face while working in the factory during duty hours."
It, therefore, does not require much of calculation how to multiply 2 by 2.
12. The Inquiry Officer has again reached the conclusion without giving any weight to defence version. According to the applicants it was Miss Agha Nusrat who caused kick blow to Miss Shamim Shafique. The factum of incident by itself was not sufficient to hold the applicants guilty. What I smell from the record is that an action was being proposed against Miss Agha Nusrat .also which is clear from the compromise application (Annexure B/1) to the application under section 25‑A of the industrial Relations Ordinance, 1969, and this was the trump card with the management by which they compelled Miss Agha Nusrat to figure as witness in the domestic proceedings although she had compromised with the applicants earlier to that. The management of the respondents made it a point of their prestige. They took a biased view from the very start and adhered to it although an alternate hypothesis inconsistent. with the guilt of the applicants was very much there. I can simply draw their attention to the following saying of Sir E. Sidney:‑
"In forming a judgment, lay your hearts void of foretaken opinion; else, whatever is done or said will be measured by a wrong rule; like them who have the jaundice, to whom every thing appeareth the yellow."
13. In the last a feeble attempt has been made to persuade the Court to rely upon also said mercy petition submitted by the applicants on 26th December, 1985, long after their dismissal. The law does not conceive of any such petition. There was also no reason for the applicants to make a petition of this nature. They were also not confronted with this petition in cross‑examination and the petition was produced before the Court for the first time on 8th September, 1986 along with the affidavit of Mr. U.R. Usmani. No reliance can, therefore, be placed on such a document.
14. It is a well‑settled law that for the purpose of determining the nature of writing and ascertaining its true import and the intention of the writer, the whole passage must be read and further this must be done in fair, free and liberal spirit. Isolated sentence or phrase in a document, torn out of or divorced from their context, cannot give a fair or proper picture of the writing or real intention of the author thereof. In fact it can happen that such an isolated sentence or phrase may give an impression totally different from the true intention of the author. Words are after all imperfect instrument of human expressions and their meaning must be colored by their context. On a plain reading of the so‑said mercy petition which is qualified one no conclusion of the nature as hinted by the learned counsel for the respondents can be drawn.
15. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, I am of the view that the dismissal of the applicants on the basis of perverse inquiry report cannot be sustained. Both the applications are, therefore, allowed. The respondents are directed to re‑instate both the applicants with all back benefits.
M.Y.H./1041/Lb.S
Petitions accepted.