2004 PLP (C (PLC(CS))

SHOW‑CAUSE NTOICE It has been reported to the undersigned that following act prejudicial to good conduct and subversive to discipline has been committed by you. That you visited the site against application No.JC0003507 in the name of Mr. Mohammad Saleemuddin. You demanded illegal gratification stating that you will reduce the Security Deposit in support of you demanded you showed him two Security Deposit slips one for Rs.1500 and other Rs.3000 on refusal by the applicant Mr. Saleemuddin to meet your demand you issued the quotation with S.D. Slip of Rs.3000. You also charged Rs.200 for ‑submitting Test Form which is also illegal and not fall within your nature of duty. The above amounts to gross misconduct under dishonesty in connection with employee's business under clause 14(b) and taking illegal gratification under clause 14(d) of K.E.S.C.'s rules & conditions of service and render you liable for severe disciplinary action under the rules. You are, as such, required to submit your explanation within 7 days of receipt of this. letter as to why disciplinary action should not be taken against you under the rules of the Corporation. Please note if you fail to submit your explanation within, the above stipulated time and period further action will be taken against you on presumption that you admit the Charge and have no defence to offer against tire charge levelled against you. THE KARACHI ELECTRIC SUPPLY CORPORATION LTD. Sd/‑13/7/2000 INCHARGE DISTRIBUTION. To, Mr. S. Abid Hussain Shah, Emp. No. 5047‑4, Sk, Fitter, M&C Malir‑Division‑II, KESC Ltd." The Appellant prepared his reply to this Show‑cause notice and addressed the same to the Incharge Distribution of the respondent- corporation. This was followed by holding of an inquiry against the Appellant, which was conducted against as many as four officials through the same inquiry committee whereby as per claim of the Appellant, no action was taken against the remaining delinquent employees, except the Appellant, who has been targeted and dismissed from service.

3. We have heard Chaudhary Muhammad Latif Saghar, learned Counsel for the Appellant as well as Chaudhry Muhammad Ashraf Khan, learned Counsel for the Respondent‑Corporation. It has been contended on behalf of the Appellant that the Appellant has rendered more than 31 years unblemished service to the respondent and that the person, who is alleged to have made complaint against the Appellant in respect of illegal gratification, has changed his version allegedly withdrawing the very complaint and that the Appellant has been victimized and discriminated against for the reason that three other employees of the respondent corporation were proceeded against in the same inquiry alongwith the Appellant and that lesser/minor action has been taken against other three delinquent employees. The learned Counsel has further stressed that the final/second show‑cause notice was not issued against the Appellant nor the copies of inquiry proceedings/report .were supplied to the accused/Appellant, on account of which the accused/Appellant has been seriously prejudiced. On the other, hand, learned counsel for the Respondents has defended the action taken against the Appellant on the basis of the inquiry, having been conducted against the Appellant which, according to the learned Counsel, has been conducted in impartial and detailed manner.

4. We have considered the arguments of the parties, advanced through their counsel and also perused the appeal filed including the documents, inquiry report and the comments, filed on behalf of the respondents. So far the fact in respect of non‑service of final Show‑cause notice and non‑supply of inquiry report/proceedings to the Appellant is concerned, the same cannot be denied, as the respondents have failed to follow this important procedure. Besides, there is no record about the personal hearing, having extended to the Appellant before inflicting the major punishment against the Appellant. The learned Counsel for the Appellant has stressed that the inquiry against the Appellant was not conducted in proper "manner in as much as no prosecution witness was examined in presence of the Appellant and that the Appellant was not afforded opportunity to cross‑examine the prosecution witnesses. The perusal of the first Show‑cause notice dated 13‑7‑2000, providing the basis for inquiry against the Appellant speaks of having demanded illegal gratification from the complainant Salimuddin in consideration of reducing the amount of security deposit from Rs.3000 to Rs.1500 as well as extra demand of Rs.200 from the complainant. There is no other allegation against the Appellant, contained in the Show‑cause notice/charge sheet. In order to appreciate the conduct of inquiry, keeping in view the charge of illegal gratification against the Appellant, it would be appropriate to reproduce the findings of the inquiry committee as mentioned in the inquiry report, which reads: "C‑FINDINGS From the above proceedings and observations, following facts have been arrived at:‑‑ (a) The charge against Mr. S. Abid Hussain Shah under section 14(b), first part i.e. theft is not applicable in this case as for theft material is to be discovered. The charge of dishonesty with the employer's business has been well established. (b) The second charge against Mr. S. Abid Hussain Shah under section 14(d) i.e. taking or giving bribe or any illegal gratification is not proved. (c) The charge against Mr. Iftikhar Ahmed under section 14(i) i.e. habitual negligence or neglect of work has been established in the sense that he accepted the mistake in this cases, but no any previous record however show the habitual negligence. (d) The charge against Mr. Muhammad Iqbal AEE under section (i) of KESC officers rules i.e. habitual negligence or neglect of work has not been fully established but some procedural slackness in this particular case occurred by him as stated above and no any pervious record shows that habitual negligence. (e) The charge against Mr. S. Abdul Rahim EE Malir under section (i) of KESC officers rule i.e. hanbitual negligence or neglect of work has not been established. Encl. Case File (181 pages) (Munawar Shah) Asstt. Admin Officer (D‑II) Member of Inquiry Committee. Sd/‑16/10/2001, Sd/‑16/10/2001 (Engr. Muhammad Yousuf) Zonal Manager (City) Convenor of Inquiry Committee." The perusal of the above findings particularly paras (a) and (b) makes it clear that neither the allegations of theft nor taking or giving of bribe or any illegal gratification has been proved against the Appellant, as per the inquiry report. The findings, quite strangely, speak of the charge of dishonesty with the employer's business, having been established against the Appellant. But no such charge was initially levelled against the Appellant in the first Show‑cause notice nor there is any such mention in any other document. So far the charge, contained in the first Show‑cause notice/charge sheet is concerned, the same has been declared in the inquiry report to be not proved against the Appellant. Thus, with the above remarks, contained in the inquiry report, the very charge sheet against the Appellant fails and there remains no justification for inflicting the penalty against the Appellant. We further find that the Appellant in para‑A of his grounds of memo of appeal has categorically, stated that the complainant Muhammad Samiuddin Qureshi has withdrawn complaint in writing. In support of this assertion, the Appellant has not only made such mention vide reply dated 18‑7‑2000 (annexure ' P/5') to the show‑cause notice issued against the Appellant, but at the same time, the Appellant has enclosed a photocopy of written statement of the complainant, available as annexure ' P/6' alongwith the memo of appeal, wherein it is stated by the complainant than on account of some misunderstanding in between the complainant and the Engineering Staff, the complainant had made an, application on account of some confusion and that he was withdrawing the same. This element, available on the record of appeal file, shows that the very person, who was allegedly aggrieved by the Appellant, had withdrawn and abandoned the grievance against the staff as well as Appellant and that he was no more pressing his application. This event of withdrawing the very complaint by the aggrieved party has taken place much before the conducting of inquiry against the Appellant. Besides this, respondents have neither produced the original complaint of the complainant nor the statement of complainant recorded during the inquiry proceedings, before this Tribunal. Thus, the only presumption, which could be drawn, is that neither there was any complaint or if it all there was any complaint, as, suggested by the respondents, the same was no more actively persued against the Appellant, as is claimed by the Appellant. The absence of the inquiry proceedings has not only deprived this Tribunal to go through the statements of the witnesses, but at the same time, it led support to the objection, raised by the Appellant that no witness was examined in his presence much less the opportunity of cross examining any such witness.

5. So far the actual allegation of illegal gratification is concerned, as it is mentioned in the first Show‑cause notice, the same is in respect of demanding of illegal gratification in consideration of reducing the amount of security deposit from Rs.3000 to Rs.1500, but except the charging of Rs.200 for submitting test form, being illegal, there is no mention in the Show‑cause notice whether any amount and to what extent the same was received by the Appellant. All this narration of facts would show that the entire allegation in respect of accepting illegal gratification, as suggested by the respondents, has become doubtful and unworthy of any reliance. The non‑examination of the complainant, the absence of statement of the complainant as well as other witnesses and the production by the Appellant of a statement, purporting to have withdrawn the very complaint, has further weakened the case of the respondents against the Appellant. The respondents have not replied to the specific statement, made in the memo of appeal that the complainant had withdrawn his complaint. In para (D) of the comments filed by the respondents, it has been mentioned by the respondents that the providing of inquiry proceedings and inquiry report as well as issuing of second Show‑cause notice was not the requirements of law. This assertion on the part of respondent is against the reported law on this point as well as against the established procedure of inquires which stipulates that the accused/employee is to be provided the copies of inquiry proceedings and he is also to be served with second Show‑cause notice in respect of the nature and the extent of the penalty, which is proposed to be inflicted against him. Thus the respondents have admitted that they have not observed this important legal formality. The Show‑cause notice/charge sheet 13‑7‑2000 does not make mention of the nature and extent of the punishment, to be inflicted upon the Appellant. Hence, it was mandatory for the respondents that before inflicting the punishment, the Appellant should have been informed about the nature of the penalty which was proposed to be imposed against him, so as to afford a final opportunity to the Appellant to explain his position or to meet such a situation and also give his reply if such eventuality was to arise and happen. But in the instant case, what we find is that on the basis of an inquiry report, which speaks of the charge of illegal gratification, having not been proved against the Appellant, the Appellant, contrary to the findings of inquiry committee, was right away inflicted the major penalty of dismissal from service against the Appellant.

6. In final analysis, we have arrived at the conclusion that the Appellant has not been dealt with in legal and proper manner much less the holding of a proper and legal inquiry against him. The respondents have deliberately avoided to probe about the fact that the complainant had withdrawn his complaint and was no more pressing the same. The absence of the inquiry proceedings including the absence of the statement of complaint fortifies our concern that even the complainant was not examined during the inquiry proceeding, Thus, what we are left with is simply the conjectures and surmises and the unproven charge upon which the Appellant has been punished with most extreme and harsh punishment of dismissal from service, which cannot be justified under any law and rules. Hence, as a result of all this discussion and for the reasons given above we are not inclined to support the action taken against the Appellant and while allowing the appeal of the Appellant, we set‑aside the order of dismissal dated 26‑3‑2001, passed against the Appellant and further order that the Appellant be reinstated back at the position, which he was availing at the time of his dismissal. The Appellant shall also be entitled to all the back‑benefits for the intervening period from the date of his dismissal to the date, he rejoins the post against which he was employed.

7. With these observations, this appeal stands disposed of as allowed, cost of the appeal be borne by the parties concerned and the copy of judgment may be sent to the concerned parties forthwith. H.B.T./3/F.S.T. Appeal allowed.