1984 PLP 470 (PLC)

Domestic enquiry-Defence opportunity-Cross-examination of witnesses-Accused refusing to cross-examine one witness and also stating at same time that he would not examine any witness .in defence-Not asked whether he wanted to cross-examine when state ment of other witnesses recorded-Not inquired at close of prosecu tion evidence whether he wanted to produce defence evidence Argument that accused given 'opportunity of cross-examination of witnesses and defence, in circumstances, held, not justified and rejected. Tariq Masood for Appellant. Muhammad lqbal Khokhar for Respondent. Date of hearing : 13th February, 1982. Muhammad Ashraf appellant who was a peon in the respondent establishment was dismissed from service after being charge-sheeted and an enquiry having been held against him. The charge against him was that he had refused to carry out the lawful and reasonable order of his superior the Office Superintendent who when came to this office the door of the office was lying locked and the appellant standing outside the room. The Office Superintendent asked the appellant to bring the key of the lock from the Chaukidar to open the door. The appellant refused saying that it was not his duty but the duty of the Chaukidar. The learned Presiding Officer of the lower Court has observed that full opportunity of cross-examination and production of defence evidence was afforded to the appellant but he stated that he would not cross-examine any witness nor would produce any witness in defence. He no doubt refused to cross-examine Mr. Muhammad Anwar Lodhi, Superintendent but he was not asked to cross-examine the other three prosecution witnesses namely Muhammad Younis, Abdul Ghani, Muhammad Anwar, peon and Muhammad Jameel when the evidence was recorded as is evident from copy of enquiry proceedings R/

15. There is no note of the Inquiry Officer that opportunity was given but the appellant did not cross-examine the; witnesses. On a separate sheet R/17 it appears to have been afterwards written that "I do not want to cross-examine any Government servant4A witness". It is thus apparent that no opportunity to cross-examine the' above-mentioned witnesses was afforded to the appellant. When he wash asked to cross-examine Mr. Muhammad Anwar Lodhi, no doubt the appel lant refused and also said that he would not examine any witness in defence but after the close of the prosecution evidence he was to be enquired about the production of defence and not before. Even his own statement was not recorded by the Inquiry Officer. The learned Presiding Officer, therefore, is not justified in saying that opportunity of cross-examination and defence was given to the appellant. The plea of the appellant through out was that it was not his duty to open the door of the office and to clean the chairs and tables etc., but no evidence before the Inquiry Officer or before the learned lower Court was produced about the duties to show that the order of the Office Superintendent given to the appellant to unlock the door was lawful and reasonable. The order was to bring keys from the Chaukidar and to open the door of the office. It means that the Chaukidar was the custodian of the keys and unless the contrary was proved it was the duty of the Chaukidar to open the office. There is a photostat copy of an application of the appellant on the file addressed to the Managing Director, P. R. T. B. in which the appellant had said that previously certain articles had been stolen and peons were made responsible so he was afraid of opening the office and that is why he had refused to open the lock otherwise he always carried out every order of his superiors. If an oppor tunity of defence had been afforded to him he may have proved that previously he was made responsible for the theft of some missing articles of the office. His duty roster should have been produced or it should have been proved by some other evidence that it was the duty of the appellant to open or close the door of the office. If the Chaukidar who was the custodian of the keys of the office had removed something, the appellant too would have been if he had opened the door of the office, made liable for it. So, it can not be said that the appellant had actually committed any misconduct. He, therefore, could not be dismissed. As upshot of the discussion made above we accept the appeal and set ting aside the dismissal order and the impugned order of the learned lower Court accept the grievance petition of the appellant and direct his re-instatement. For about four years the grievance petition remained pending before the learned lower Court and for 5 years the present appeal was delayed in this Court. Obviously the parties are not responsible for this inordinate delay. I, therefore, allow 50% back benefits to the appellant. However, his pay will be fixed adding the full annual increments which he would have earned but for his uncalled for dismissal. A. B. Appeal accepted.