1987 PLP 220 (PLC)

6. His second grievance is that the Enquiry Officer was not impartial, he had already decided to give decision in favour of the Management and, therefore, the finding of the Enquiry Officer is bad.

7. Third grievance of the applicant is that the respondent did not furnish the copy of the enquiry proceeding or gave the personal hearing which has also vitiated the enquiry.

8. Finally the applicant has grievance that if the matter was sub judiced before the Criminal Court, the enquiry proceeded was also mala fide.

9. Respondent has filed the written, statement and taken first legal objection that application is not maintainable.

10. His second contention is that enquiry was conducted fairly. Applicant fully participated in the enquiry proceedings. He was given the personal hearing and if the report of finding was not furnished it was not required by law and also no request was made before the dismissal. Following are the points for determination: (1) Whether the dismissal of the applicant was according to law? Reasons.

1. Failure to appreciate the evidence, by the Enquiry Officer who has judged the factual aspect regarding accidental killing is the main contention raised by the applicant's representative. His argument is based on this logic that if the question of negligent and reckless driving is not discussed as to what was the basis on which the conclusion was arrived, at, that it, was direct act of driver Sadday Hussain without appreciating the quantum of contributory negligence, the criminal liability of the driver or its negligence becomes far‑off issue to connect the applicant with the misconduct with which he is charged.

2. The second contention is that if the record of the proceedings of enquiry is dishonest the conclusion to hold the applicant guilty of the responsibility, towards the accident will also be against the concept of natural justice. And even according to law where criminal case is pending before competent Court of law, is, a issue under adjudication, to examine the map of the Site, the measurement, the Skidding marks, the brake appliances, the contributory negligence.

3. The Court has examined the finding and arrived at this conclusion The Court has taken view of the appraisal of the evidence of the prosecution, as brought forth, to show, that accident was attributed to Sadday Hussain when he was driving the bus in the early hours of the morning at 7‑30 from Steel Mills, resulting in the killing near Shafi Muhammad Village, but what witness has individually described to which the Court makes individual reference, whether the finding arrived at, was in consonance with the appreciation of evidence, taking both the prosecution and the defence to connect the driver with the exclusive responsibility, without taking into consideration whether injury was made on the road‑side how he crossed the road. What factors led to the accident of such nature. Did the Inspector of vehicle take the drawing of distance, skidding marks and the soundness of the brake.

4. The extract of evidence is, as under of an important as eye‑witness, as quoted from enquiry report. 5. "Mr. Ali Asghar stated that on 4‑1‑1984 he was going to his house after his duty Mr. Sadday Hussain was driving bus. When the bus reached, home office, one truck crossed our bus, the pedestrian ran on the road and at once came in front of the bus. The driver tried to save his life and turned his bus towards the left side". The speed of the bus was 40 miles per hour. Due to fog, the driver had not seen the person sitting on the road side".

6. Another witness Mr. Abdul Khaliq has supported this version.

7. Third witness has been shown as a defence witness Sadday Hussain, who also stated "When he reached near Shafi Muhammad Village, one pedestrian came on the road‑side, from back side of the truck. He applied brake and turned steering on the left side due to sloppy road, he failed to control over the bus and bus ran over the persons. Due to dark, they were not visible but he failed to control.

8. The evidence of prosecution and defence which was too remote based only on 2 witnesses if read with the defence, gave the reflection, that it was more in favour of driver that he had exercised all the carol of saving the human life.

9. So, mere hypothetical finding that persons have lost life and therefore, driving was negligent, the Court is of the view that this approach by the Enquiry Officer in the cases of negligence was neither judicial nor based on the perception of the natural justice rather, more on sentiments.

10. Regarding dishonest preparation of the record by the Enquiry Officer, the Court has arrived at this finding that the statement of each witness, first, is signed; so, there is no scope of criticism. The witness of administration has explained, the sincerity of the Enquiry Officer, regarding preparation of enquiry record. But the representative of the applicant assertion, that the statement recorded in the absence of witness can be supported, firstly that no defence opportunity was provided to the applicant's satisfaction of his innocence or for having failed to obtain any statement from him in writing that he closed his part of version after examining one witness who has also supported him that one person came on the road suddenly. Driver tried to save his life and turned the bus on the left side but due to sloppy road the bus ran over the persons sitting on the road. The absence of cross -examination of those statements of the prosecution is rather not possible to infer that in serious case like accident, the driver will content himself to the recording of evidence of prosecution on its face value rather than to have the statement cross‑examined to arrive at truth. B There seems force in the applicant's assertion but not to the extent of accepting that dishonest record was prepared. Denying the right of cross‑examination may be a different question but to prepare the record is a different aspect. The Court is of the opinion that cross‑examination was the valuable right to have been given to the driver before being field him guilty of the charge from the point of view of judicial perception.

11. Similar is the case that denial of opportunity of personal hearing is also the serious departure from fundamental stage of enquiry under the rules when it is the basic right of the applicant to put up his representation after the announcement of the finding, holding him guilty of the charge of misconduct.

12. In the result the impugned order of dismissal is set aside. The Court will also direct that on the finding of the Enquiry Officer by setting aside its conclusion, the evidence cannot exonerate driver's liability, pending criminal Court decision again to put him on the enquiry D after the defence has been given opportunity for any action, the administration may propose to take in the circumstances after the Criminal Court's decision. He is re‑instated with back benefits to the extent of 50 per cent if physically he has not worked in the Steel Mill. If the finding is set aside it is set aside because of the erroneous conclusion arrived at by enquiry finding on the question of fact. A.A./849/Lb Grievance petition accepted.