1981 PLP 451 (PLC)

M. S. Bokhari for Respondent. Date of arguments : 16th October, 1980. This petition has been submitted by Muhammad Ashraf ex‑worker Flour Mills Army 'Welfare Food Industries under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against the General Manager, Army Welfare Food Industries, Faisalabad. He was dismissed from service on 8th May, 1979.. The petitioner has submitted that a fake charge‑sheet was served on him and the occurrence alleged to have taken place was according to the charge‑sheet‑outside the mills premises and that the petitioner had committed no misconduct. He submitted that the Enquiry Officer in his enquiry could not establish any allegation against him and he was told that the charge against him was not proved. A second enquiry was started against him and some other witnesses were produced who were not present at the spot. This second enquiry was based on favourites and was uncalled for and unwarranted. He was not given any opportunity to cross‑examine the witnesses and that he was victimized because he belonged to the group of Sub. Muhammad Hanif who wanted to get the election held and to put on end too the activities of the pocket Union. He has submitted that he had served grievance notice on 21st May, 1979 but no reply to that notice was given. He has therefore,. submitted that the order of his dismissal be set aside.

2. The respondent has raised preliminary objection that the petition was barred by time and as such not maintainable. It has been submitted that the petitioner was dismissed on 8th May, 1979 as he was guilty of misconduct. The petitioner was charged that at about 1345 hours on 11th March, 1979 while Security Guard Khan Muhammad was on his way back after duty he waylaid and attacked the said Security Guard, caught hold of him by his testicles and insulted him publicly. This was an offence within the meaning of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He submitted his explanation on 15th March, 1979 which was not accepted and an Enquiry Committee was constituted to Enquiry into the charges levelled against him.

3. In the Enquiry two witnesses were produced from the prosecu tion side and two defence witnesses were produced by the petitioner. P. W. 1 was Khan Muhammad himself who stated that he had stopped the petitioner from going out of the gate for drinking water and he had gone back on his duty in the mills. Later when he was going home with Muhammad Khan on the latter's cycle; he was waylaid near Lal Mills Chowk by the accused and was manhandled and caught by his testicles which caused pain and also his pants was torn in this quarrel. P. W. 2 Muhammad Khan stated that he had not seen the accused grabbing the complainant's testicles and that he was so told by the complainant after the two had been separated.

4. D. W. 1 and ,2 had no knowledge or any idea of quarrel between the two. The enquiry officer recommended that the services of the petitioner be terminated. The petitioner was issued second show‑cause notice and the Enquiry Officer examined 4 more persons in this case, and the General Manager approved his dismissal from service after finding him guilty of (a) leaving his duty without prior permission, (b) forcing the way out of the main gate without presenting himself for search and against the orders of officiating Security Inspector, (c) waylaying the officiating Security Inspector while be was, returning home after the duty and beating him near the Lai Mills Chowk.

5. The learned counsel for the petitioner argued that the petitioner had been pursuing his case in the Labour Court and that he had with drawn his application pending with the Labour Court, Faisalabad on 25th March, 1980 in the light of the decision of Labour Appellate Tri bunal, Lahore and submitted that application before the N I R C on 16th April, 1980. He therefore, prayed that the delay in submission of this case be condoned.

6. The learned counsel for the respondent cited case‑law reported in 1975 S C M R 304 and 1978 S C M R 457, wherein it was held that the petitioner was required to account for every day's delay in submission of his petition. I find the petitioner was pursuing his remedy in the Labour Court as the preliminary objection on jurisdiction of that Court raised by the respondent was ruled out by the Labour Court. The Labour Appellate Tribunal, Lahore, however accepted the revision petition of the Respondent and directed the petitioner to submit the petition before the N I R C. He withdrew the case on 26th March, 1980 and submitted the same within 2 months before the N I R C. I, therefore, condone the delay in this petition.

7. The learned counsel for the petitioner also submitted that the petitioner was charged under Standing Order 15(3)(h) which related to riotous and disorderly behaviour. The enquiry was held against the petitioner but the charge was not proved and the Enquiry Officer there fore, examined 4 more persons and recommended dismissal of the petitioner. It has been held in a case reported in 1969 P L C 48 that individual and private quarrel between the two workers was not covered under Standing Order 15(3)(h) of the Standing Orders Ordinance. He also cited case‑law reported in 1976 P L C 176 and 1980 P L C

390. The learned counsel for the Respondent further argued that Standing Order 15(3)(h) covered any act subversive of discipline and in a case reported in 1978 P L C 492, the abduction of a girl by a co‑worker was also covered under Standing Order 15(3)(h) of the Standing Order, Ordinance. He also cited 1969 P L C 79 in this connection.

8. I have gone through enquiry proceedings and I find that the charge‑sheet issued to the petitioner on 14th March, 1979 men tioned only that the petitioner waylaid and attacked the Security Guard Khan Muhammad, caught hold of. him by his testicles, abused and insulted him publicly. The chowkiar himself appeared as prosecution witness and the other witness Muhammad Khan stated that he did not see the accused grabbing the complainant', testicles but he was so told by the complainant after the two had been separated. He also did not see the pants of the Security Guard being torn by the petitioner. But he was informed by the Security Guard that this was torn by the petitioner. The two defence witnesses knew nothing about the . incident which happened near Lal Mills Chowk. The prosecution, therefore, could not establish the case against the petitioner and the Enquiry Officer thereafter examined 4 more witnesses and came to the conclusion that he & was guilty of misconduct and the General Manager dismissed him from service, on the grounds as mentioned above.

9. No charge was framed against the petitioner on the following two items :‑ (a) leaving his duty without prior permission ; and (b) forcing the way out of the main gate without presenting himself for search and against the orders of officiating Security Inspector. No enquiry was held on these items a and the petitioner was involved in these two items after the enquiry had been concluded on item (c) relating to waylaying the officiating Security Inspector while he was returning from duty and beating him near the Lal Mills Chowk.

10. The prosecution failed to establish the guilt of the petitioner in this item either. I find that no misconduct could be established against the petitioner and his dismissal was illegal. I, therefore, direct that the petitioner, Muhammad Ashraf should be re‑instated with full back benefits.