1976 PLP 8 (PLC)

Muhammad Aslam petitioner brought application under section 38 of I. T. O. 1969, challenging his dismissal based on two charge-sheets Exh. R-1 and Exh. R.

2. Charge-sheet Exh, R. 1 was to the effect that during checking the petitioner misbehaved and beat the checker and Ex. R. 2 was to the effect that being cleaner he was not entitled to drive vehicle, but he drove the Bus and damaged it. Labour Court (Central Zone) Lahore, vide its order dated 7-2-1970, re-instated the petitioner with back benefits. The respondent went in appeal and the learned appellate authority maintaining the order of re-instatement ordered that the petitioner would not get back benefits and directed the Management to issue copy of the inquiry officer's report to the petitioner and re-decide the matter. It was also observed that if the charges were proved the petitioner would not be entitled to back benefits. The Management supplied copy of the inquiry officer's report alongwith the show -cause notice and again dismissed the petitioner on 12-6-1,

970. The petitioner brought departmental appeal on 20-6-1970, but before it could be decided he brought an application to the Labour Court (Central Zone) Lahore under Standing Order 18 of the Standing Orders Ordinance, 1968. The petition was dismissed on the ground that the petitioner was not office holder of the Union. The departmental appeal was dismissed and intimation was sent on 10-7-1972. Notice under section 23-A was given on 12-7-1972, and its reply was given on 20-7-1972. Application under section 25-A was brought to the Labour Court (Central Zone) Lahore, which was dismissed on the ground that it was barred under the rule of res judicata. The petitioner went in appeal which was accepted and the case was remanded for decision on merits. The case has been transferred to this Court on the arguments stage. The learned representative of the petitioner has argued that the res pondent did not supply the copies of the statements of the witnesses recorded in the preliminary inquiry, therefore the order of dismissal is not maintainable. He has made reference to gazette dated 11-3-1972, but the same is not on the file. He has argued that the relevant portion of the judgment of the Appellate Tribunal is reproduced in the said gazette. Since the gazette has not been produced it cannot be said if in reality the Appellate Tribunal has held that the copies of the statements recorded in the preliminary inquiry should be furnished to the employee. Such copies can be supplied on demand otherwise the department is not bound to supply the same. The learned representative of the petitioner has also argued that copies of the statements of the witnesses were not supplied alongwith the copy of the inquiry report even though they were demanded vide application Annexure 'D'. He has also said that the Management sent reply to annexure 'D' which is Annexure 'E'. Application Annexure 'D' has been perused which shows that the petitioner's prayer was made for the supply of the copies of the statements of the witnesses and the prayer was refused vide Annexure 'E'. Learned A. T. M. has argued on behalf the respondent that according to the order of the Appellate Tribunal copy of the inquiry report only was to be supplied to the petitioner alongwith the inquiry report and as the appellate Court did not direct to the respondent to supply copies of the statements also, refusal to supply the same was justified. I do not find any force in this argument, when the matter was reopened the petitioner was justified in making request for the supply of the copies of the statements of the witnesses. The respondent no doubt was not bound to supply the copies of the statements on his own accord but as the prayer of the petitioner was justified it should have been acceded to. This is noteworthy that the matter was reopened after about three or four years and naturally the petitioner had forgotten what the witnesses had actually stated against him. So his prayer for the supply of the copies was genuine. No harm could be caused to the res pondent by acceding to his request and this is not understandable why this genuine request was refused. Learned A. T. M. has argued that the petitioner could inspect the file if the copies were not supplied. Since the matter was reopened after a considerable time copies of the statements were necessary in the interest of justice. If copies had been supplied the petitioner, be would have sought legal advice after delivering the copies to his counsel. If he had inspected the file he could not give necessary information required by his counsel and pick up the facts which his counsel could have detected from the statements. Muhammad Zafar P. W. 2, has supported the petitioner by saying that the checker had tried to snatch the documents from the petitioner and the petitioner did not misbehave. He has also said that he wrote this fact in the complaint book. The complaint book under these circumstances should have been produced before the lower Court but it has not been produced, by respondent. Learned A. T. M. has argued that Exh. P. 2, is not the copy of the complaint book but a copy prepared from a sheet of paper, and it has no value. As the complaint book was not produced the petitioner had no other alternative but to produce secondary evidence by producing oral evidence by examining Muhammad Zafar P. W. 2, who had noted down the complaint in the complaint book and Muhammad Shafi P. W. 1, who prepared copy Exb. P. 2, from a paper which the petitioner somehow or other had managed to copy it from the complaint book. In the charge of misbehaviour does not stand proved. The Bus. No. 3187 is alleged to have been taken. away from Kasowal whereas in the charge-sheet it is written that it went out of order at Kotla Jinda Ram. If the bus had gone out of order at Kotla Jinda Ram it could not have reached Kasowal. There is no evidence that it went out of order at Kotla Jinda Ram and that the petitioner took it to Kasowal after the driver had left in order to bring some vehicle to take it away. If it had been so, the driver would have entered in Weight Bill P. 8, that the bus was standing at Kotla Jinda Ram. It is therefore clear that the driver after leaving the bus at Kasowal left for bringing for some vehicle to drive away the bus. When the driver was present no question arises that the petitioner drove the bus as a result of which it was damaged. The other defect is that the inquiry officer was a witness, therefore, could not be deputed to hold the inquiry. The C inquiry officer has written in the inquiry report Exh. R. 3 that he was present per chance during the preliminary inquiry and petitioner in his presence had admitted that he was responsible for the damage caused to the bus. The petitioner has been prejudiced by this fact. As a result of the observations made above I come to the conclusion that the petitioner has been wrongly dismissed in the two inquiries. I, therefore, accept the petition and setting aside the order of dismissal re-instate him with back benefits.