1987 PLP 318 (PLC)

Applicant Khanzada submitted reply to the aforesaid charge‑sheet Annexure A‑2 to the grievance petition. The respondent, however, suspended the applicant and issued enquiry notice Annexure A/3 to the grievance petition. Though the applicant participated in the enquiry proceedings, but it is alleged by him, that the enquiry proceedings were quite malacious for the reasons enumerated in para. 6 of the grievance petition. It is also alleged that the dismissal of the applicant is mala fide and vexatious, and that the dismissal order, dated 17‑5‑1984 Annexure A‑4 is liable to be set aside. It is submitted that grievance notice, dated 23‑7‑1984 Annexure A‑5 to the grievance petition was sent to the respondent, who sent reply Annexure A‑6 to the petition. Finally present grievance petition was filed to the effect that the impugned dismissal order may be set aside, and the applicant be re‑instated in service with full back benefits. Reply statement was filed by the respondent wherein preliminary legal objection was taken on the ground that the applicant being "Chowkidar", was not a "workman" under the Standing Orders Ordinance, 1968 and the I. R.O., 1969. On merits it was submitted that the allegations levelled in the charge‑sheet were fully established in the enquiry conducted by the respondent. That there had been no mala fide intention in dismissing the applicant from service. Finally it was submitted that the grievance petition may be dismissed. Applicant Khanzada filed his affidavit‑in‑evidence (Exh. 3), he also produced witnesses Shaikh Isreel (Exh. 4), Ghulam Haider (Exh. 5), Sher Badshah (Exh. 6), and Muhammad Khanani (Exh. 7). Respondent produced witnesses I.M. Saeed Asghar (Exh. 8). A.S. Qureshi (Exh. 9), and M.A. Qayyum (Exh. 10). Both the parties have also placed on record all the relevant documents. I have heard Messrs Shamsuddin Khalid, learned counsel for the applicant and Muhammad Hamayun, learned counsel for the respondents at length. Evidence produced by both the parties have been carefully considered. Point for determination would be as under:‑‑ (1) Whether the applicant is a workman? (2) Whether there had been no impartial and independent enquiry against the applicant in respect of the charges levelled in the charge‑sheet? (3) Whether the impugned dismissal order was vexatious and is passed with mala fide intention? My findings on the above points are given as under:‑‑ POINT N0. 1: The decision on this point depends on the duties which were being performed by applicant Khanzada. In his affidavit‑in‑evidence Exh. 3, applicant Khanzada alleged that he used to check the vehicles passing through the main gate and the invoices of the material loaded on such vehicles. That he used to compare the entries of the invoices vis‑a‑vis the material being brought or being taken out on such vehicles. He also used to count Tank Wagons at the Railway Gate entering and going out the factory/ company. That he used to note down the number of Tank Wagons in a register and used to put signature on such entries. The assertions of the applicant in respect of aforesaid duties has been supported by Mr. S.A. Khan, Installation Manager, who in his statement, before the Enquiry Officer admitted that the applicant had been performing the duties of checking Tank Lorries/Tank Wagons, Gate Passes etc. Furthermore, applicant Khanzada has not been cross -examined by the learned counsel for the respondents on the point of duties being performed by him. This being so it is proved that the applicant had been performing manual duties as alleged in paragraph No. 3 of his affidavit‑in‑evidence. Accordingly it is held that the applicant was a workman under the Standing Orders Ordinance and the I.R.O., 1969. POINTS NOS. 2 and 3: Both of these points are interconnected, hence the same are being decided together. Mr. Shamsuddin Khalid learned counsel for the applicant submitted that there had been no independent and impartial enquiry against the applicant. He pointed out that admittedly the enquiry was to take place in the conference room, but it was actually held in the office room of Mr. S.A. Khan who was complainant against the applicant in respect of the present incident. He further submitted that the attitude of the Enquiry Officer was partial and he did not conduct the enquiry in judicial manner. That all the witnesses were called at the same time and remained present during the deposition of other witnesses. That the Enquiry Officer had already decided to give findings against the applicant. On the other hand the learned counsel for the respondents submitted that the perusal of the statement of the Enquiry Officer, Mr. A. S. Qureshi (Exh. 9) together with the enquiry proceedings (Exh. 3/A) would clearly show that Mr. A.S. Qureshi conducted the enquiry in most impartial and judicious manner. That the report of the Enquiry Officer is strictly based on the evidence produced before him by both the parties. That neither the applicant nor his witnesses could produce any documentary evidence to show that the Enquiry Officer was biased against the applicant and conducted the enquiry with prejudiced mind. I have carefully scrutinized the statement of the Enquiry Officer alongwith the enquiry report and the enquiry proceedings Annexure R‑I filed alongwith the affidavit‑in‑evidence of the Enquiry Officer. Admittedly the applicant and his representative fully participated in A the enquiry proceedings. Each page of the enquiry proceedings bears the signatures of the applicant. The perusal of the enquiry proceedings further indicates that the applicant cross‑examined at length all the witnesses which were produced by the management. Furthermore, the applicant also produced defence witnesses. There is nothing to show that during the enquiry proceedings the applicant or his representative lodged any written or oral protest against the conduct of the Enquiry Officer. As regards the change of the venue of the enquiry, it is explained by Mr. A.S. Qureshi that since conference room was already occupied, hence he conducted the enquiry in the Office of Mr. S.A. Khan. There is nothing on record to show that Mr. S.A. Khan or any other officer of the respondent ever tried to influence the witnesses which were being examined by the Enquiry Officer. The most important point to note is that on 9‑1‑1985 applicant Khanzada moved an application Exh.3/B whereby he categorically admitted his guilt in respect of the present incident. He also prayed for mercy. In his cross‑examination applicant Khanzada admitted that the aforesaid application Exh.3/B is signed by him. It is pertinent to note that the aforesaid application Exh.3/B was moved after the completion of the enquiry. Under the circumstances, I do not see any substance in the allegation that the enquiry was not conducted in an impartial and judicious manner. I am, therefore, of the view that the report of the Enquiry Officer is based on the evidence produced before him, and that the charge levelled against the applicant in the charge‑sheet Annexure A‑1 to the main application was fully established in the aforesaid enquiry. The learned counsel for the applicant challenged the dismissal order on the ground that some other persons were also involved in this case, that enquiry was also hold against those persons but the Management did not take punitive action against those persons. I de not see any force in this contention because the award of punishment is the sole prerogative of the Management. It is held in 1969 PLC 392, (at page 396 (E) that in awarding a punishment permitted by law the employer exercises a discretion which is not open to review by any outside authority. It is only when he does not observe the law or, exceed its limit that the intervention of an outside authority or Tribunal, is called for. In view of the above discussion, the punishment of dismissal awarded to the applicant cannot be challenged before this Court on the ground that the respondent did not report the matter to police or did not take action against the truck driver and some other employees who were also involved in the present incident. The learned counsel for the respondent submitted that admittedly the applicant has received all the legal dues vide statement of Mr. M.A. Qayyum who has also produced the relevant documents. Mr. Hamayun submitted that since the applicant had received all the legal dues hence he was no more aggrieved employee, as such present; grievance petition was not legally maintainable. Reliance was placed on 1973 PLC

297. On the other hand learned counsel for the applicant relied on 1985 PLC 400 wherein the authority quoted by the learned counsel for the respondent alongwith other authority on the same point have been distinguished, and it is held that acceptance of the legal dues do not debar the worker from challenging his termination before the competent judicial forum. It is held that 1973 P L C 297 is applicable to the constitutional jurisdiction of the Hon'ble High Court. I subscribe to the view expressed in 1985 P L C 400, as such I do not find any force in the contention that the present grievance petition is not legally maintainable as the applicant received all the legal dues from the respondent. In view of my findings that the charges levelled against the applicant in the charge‑sheet. was fully established during impartial domestic enquiry, both of these points are hereby decided against the applicant. As a result of my findings on the above three points, I am of the view that the applicant was rightly dismissed from service by the respondents and the present grievance petition is devoid of any forum. The result is that the grievance petition filed by the applicant Khanzada against the present respondent stands dismissed. M.Y.H./877/Lb Petition dismissed.