1982 PLP 883 (PLC(CS))

‑ S. O. 15 (4)‑Charge‑sheet‑Service of‑Domestic enquiry‑Re quirement of law‑Defence opportunity to accused‑Railway em ployee charged of serious allegation of responsibility for collusion between two passenger trains‑Dismissal order passed on basis of statutory inquiry conducted by, Government Inspector of Railways ‑Accused not participating in said inquiry and no opportunity of cross‑examination of witnesses testifying against him or at least of rebutting such evidence given to accused such enquiry, held, did not fulfil requirements of S. O. 15 (4) Dismissal order based upon such enquiry‑Not sustain able‑‑‑Charge- sheet initially served more than 4 months after alleged accident Charge‑sheet in circumstances, held, time‑barred‑Holding of domestic enquiry against accused, in circumstances, not permissible. A. T. Mahmood for Appellant. S. P. Lodhi for Respondent, Date of hearing: 11th February, 1982. The respondent, who was employed as a Cleaner on a locomotive in the Pakistan Railways, was removed from service vide order, dated 11th August, 1980, on the charge of negligence in the performance of his duties, which is said to have contributed to the collusion between 2 pas senger trains on 21st April, 1979. The respondent challenged the orders of his removal from service before the learned Vth Labour Court from where the matter was transferred to the learned IIIrd Labour Court. By its decision dated 28th November, 1981, the learned Labour Court set aside the orders of removal of the respondent and directed his re-instatement in service with full back benefits as in its view there lead been no domestic enquiry held against him which was an essential requirement of clause (4) of Standing Order

15. Aggrieved by this decision, the Railway administration has come up in appeal to this Tribunal.

2. I have heard Mr. A.T. Mahmood, the learned counsel for the Railway administration, and Mr. S. P. Lodhi, who appeared for the respondent workman. It was sought to be contended by Mr. A.T. Mahmood that the misconduct of the respondent had been duly established in the statutory enquiry held by the Government Inspector of Railways. Mr. Mahmood, however, was unable to say whether the respondent had been given an opportunity to participate in the said enquiry and cross- examine the witnesses who testified against' him or at least of rebutting the evidence given by them against him. Neither a copy of the report of the Government Inspector of Railways nor of the proceedings conduct ed by him were produced before the learned Labour Court and hence it is not possible to say what was the scope of that enquiry, what evidence had come to that enquiry against the respondent and what were to findings of the Government Inspector of Railways. Faced with this situation, Mr. A. T. Mahmood had to admit that the enquiry conducted by the Government Inspector of Railways does not fulfil the requirement of clause (4) of Standing Order 15.

3. Mr. A. T. Mahmood, however, strongly urged that as the respon dent was clearly involved in a serious accident, the Railway administration should at least be given an opportunity of holding a fresh enquiry against him in accordance with law. The primary requirement for the holding of such an enquiry under the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is that notice of the act of Mis conduct must be given to the worker against whom the enquiry is to be held, within one month of the commission by him of such an act. In the instant case, the accident is said to have taken place on 21st April, 1979. As the accident is said to have been a serious one, the Railway adminis tration must have come to know immediately about the occurrence of the accident. However, the first charge‑sheet or show‑cause notice issued against the respondent is dated 23rd August, 1979, i. e. more than 4 months after the accident bad taken place. This charge‑sheet/show cause notice was thus time‑barred qua the provisions of clause (4) o a Standing Order

15. Since no earlier intimation of his alleged misconduct was given to the respondent, the holding of a domestic enquiry against him under Standing Order 15 would not be permissible.

4. For the reasons discussed by me above, i find no merit in this appeal and would dismiss the same. Petition dismissed.