1990 PLP (C (PLC(CS))

KH. ABDUL JALIL (MEMBER).‑‑Appellant, Ikhlaq Ahmad, was an Assistant Lineman in Chuharkana Sub‑Division when he was dismissed from service by the Executive Engineer, WAPDA (respondent No. 1) vide impugned order dated 14‑9‑1981 (Annex. E). He challenged the validity of the impugned order through a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969 in the Punjab Labour Court No. 3, Lahore. This was decided in his favour and the respondents were directed by the Labour Court vide order dated 17‑6‑1982 to reinstate the appellant with back benefits. In compliance with the order of the Labour Court, the appellant was taken back in service by the respondents who at the same time filed a writ petition before the Lahore High Court. By an order dated 22‑11‑1983 it was held by the Lahore High Court that the appellant being a civil servant could not have invoked the jurisdiction of Labour Court. After preferring an appeal on 20‑11‑1983 to the departmental authority as required by rule 11 of the Pakistan WAPDA (E & D) Rules, 1978, the appellant filed this appeal before this Tribunal on 23‑11‑1983.

2. We have heard the counsel for the parties. It has been urged on behalf of the appellant that the departmental inquiry was neither conducted in his presence nor he was given an opportunity of cross‑examining the witnesses. Moreover, a copy of the inquiry report was also not provided to the appellant along with the show‑cause notice dated 4‑8‑1981 requiring the appellant to explain why any one or more of the major penalties described in rule 4 of the Pakistan WAPDA (E & D) Rules, 1978 should not be imposed upon him.

3. We have gone through the relevant record of the respondents and find that the Inquiry Officer submitted one page report on 7‑7‑1981 and this reads as under:‑‑ "Enquiry report of Muhammad Riaz Enquiry Officer (S.D.O. Atta Abad Sub‑Division, Sheikhupura) against Mr. Ikhlaq Ahmad, ALM of Chuharkana Sub‑Division, Chuharkana. With reference to Executive Engineer, Sheikhupura Office Order No.485, dated 3‑6‑1981. In order to hold enquiry as desired by the worthy XEN. `E' Sheikhupura vide his endorsement No. 524‑26, dated 3‑6‑1981, I called Mr. Bashir Ahmad, LS‑11 and Muhammad Ikhlaque Ahmad ALM. of Chuharkana Sub‑Division in my office and received their statement as under:

1. MR. BASHIR AHMAD LS‑II. That while Mr. Ikhlaque Ahmed, ALM was working under my control he absented himself on 15‑3‑1981 without any prior approval and getting the leave sanctioned. On 20‑3‑1981 when I asked him to go for duty with other staff he flatly refused to perform his duties and asked to do what he liked. He absented himself again from 20‑3‑1981 to 30‑3‑1981 without any information as reported by me on 18‑3‑1981 to S.D.O. (E), Chuharkana and necessary side checking of the staff working at site was carried out by the S.D.O. (E), Chuharkana personally. (2) Mr. Ikhlaque Ahmed, ALM stated in his statement that his charge‑sheet reply may be considered as final reply. (3) So far as the report of the undersigned is concerned the charges levied against Mr. Ikhlaque Ahmed, ALM are correct as per statement of Mr. Bashir Ahmad, LS‑II and comments of the S.D.O.(E), Chuharkana on CP‑33 of the personal file of the official. It is therefore requested to take necessary action under the rules accordingly. Sd/ (Muhammad Riaz), Sub‑Divisional Officer, Electricity WAPDA, Atta Abad. This appears to have been based on the statement of Ch. Muhammad Bashir, Line Superintendent, dated 22‑6‑1981 which‑does not contain any specific dates about the unauthorised absence of the appellant from duty as has been mentioned in the inquiry report. It is also not evident from the record whether the appellant was present when Ch. Muhammad Bashir, Line Superintendent made his statement before the Inquiry Officer. We are not convinced that the following note recorded by the Inquiry Officer on the statement dated 11‑6‑1981 of the appellant can be a sufficient proof of the presence of the accused at the time when the statement of Ch. Muhammad Bashir, Line Superintendent was recorded: "An opportunity has been given to the accused Mr. Ikhlaq Ahmad to cross‑examine the witnesses but the accused satisfied himself on his statement which is being considered."

4. The presence of the appellant before the Inquiry Officer on 22‑6‑1981 becomes further doubtful because on the conclusion of the evidence for prosecution the appellant was not asked whether he wished to submit additional written defence statement. The appellant's statement referred to in the above note of the Inquiry Officer is dated 11‑6‑1981 whereas the prosecution evidence was recorded on 22‑6‑1981.

5. One of the charges, against the appellant was that he misbehaved/ insulted Mr. Muhammad Bashir, Line Superintendent on 18‑3‑1981 but the statement of Ch. Muhammad Bashir, Line Superintendent about this allegation is not quite clear. Moreover, the statement of other material witnesses in the case, namely, S.D.O. (E), Chuharkana and other staff members before whom the appellant allegedly misbehaved with/insulted Ch. Muhammad Bashir on 18‑3‑1981 were also not recorded.

6. As regards the second irregularity relating to non‑provision of a copy of the inquiry report to the appellant alongwith the show‑cause notice dated 4‑8‑1981, it has been stated on behalf of the respondents that the inquiry report was shown to the appellant on 23‑7‑1981. We are afraid this cannot amount to compliance with the requirement of providing a copy of th;; enquiry report to an accused official. By' this lapse, the appellant has certainly been prevented from putting up his defence against the finding of the Inquiry Officer. We are, therefore, of the view that the aforementioned irregularities are material in nature and have the effect of vitiating the disciplinary proceedings taken against the appellant.

7. The respondents have contended that the appellant is not entitled to condonation of delay in filing this appeal as he wasted his time in seeking relief from a wrong forum, namely, the Labour Court and, therefore, the appeal is barred by limitation. In view of the fact that the Labour Court had given its decision in favour of the appellant and in consequence thereof the appellant had been reinstated, the appellant was justified to not approaching the Tribunal as long as the order of the Labour Court held the field. We condone the delay involved for this reason as well as because of our finding that disciplinary proceedings stood vitiated because of material irregularities which have prejudiced the appellant in his defence.

8. The next objection of the respondents that the appeal was premature as it was filed by the appellant without waiting for a reply for 90 days as laid down in proviso (a) to section 4(1) of the Service Tribunals Act. 1973. There is no doubt about it that at the time of riling of the appeal; it was premature but at the time of C its hearing it had matured because the statutory period of 90 days had elapsed long before and the appellant had not received any reply to his departmental appeal.

9. For the foregoing reasons, we set aside the impugned order and reinstate the appellant in service with all the consequential benefits.. Nothing in the order shall prevent the respondents from taking fresh proceedings against the appellant according to law and the rules.

10. No order as to costs.

11. Parties to be informed. M.Y.H./519/Sr. F Appeal allowed.