1983 PLP 915 (PLC)

Applicant S. M. Naseeb Shah was Station Master Bubak on 10‑4‑1980, when during divisional inspection certain irregularities were detected and on 17‑4‑1980 he was issued charge sheet copy R/l, to which he sent reply copy R/2. Then there was enquiry by Commercial Inspector (Line). Subsequently on 23‑6‑1980 second show‑cause notice copy R/18 was issued, and on 7‑10‑1980 impugned order dated 7‑10‑1980, copies A/1 and R/20, was issued under which the applicant was reverted from the post of Station Master R. N. S. P. 11 to the post of Assistant Station Master in R, N. S. P.

7. Said order has been challenged in this grievance application to be illegal, void, ineffective and without any lawful authority. Applicant has prayed for his re‑instatement to the post of Station Master with full back benefits. . .

2. Beside the fact given above, the parties admitted that under order copies A/8 and R/21 dated 16‑11‑1980 pay of the' applicant was fixed in R N.S.P. 11 with retrospective effect from 1‑5‑1979 and prior to issue of said order the applicant was in R.N.S.P. 8.

3. In his application the applicant challenged the enquiry against him to be illegal as the C.M.I. was, not competent to hold enquiry against an official of Scale No. 11 and that the C.M.I. was. himself liable for the irregularity detected on 10‑4‑1980. The Enquiry Officer was alleged to have simply interrogated the applicant without examining any witness for the complainant. Applicant .further alleged .that the Divisional Commercial Officer (DCO) being the complainant could not issue the dismissal order which was illegal and void.

4. In their reply statement the respondents challenged the grie vance application to be not maintainable and time‑barred although this objection was not pressed during arguments. Jurisdiction of this Court was challenged on the ground that the applicant was not a workman. It was admitted that the‑applicant had preferred departmental appeal but the same was rejected and so also the grievance notice. The enquiry proceedings and the dismissal order were defended to be legal and proper.

5. Parties adduced evidence in the shape of affidavits and their counsel were heard..

6. In his affidavit the applicant has said that he was a workman and had been performing clerical and manual duties with no other staff under him. In reply to questions from respondents counsel the applicant said in cross that as Station Master, Bubak he had no control over Gangmen, Linemen and Points‑.men and that even the Assistant Station Master was not under him. He added that he was marking attendance of the other staff but he was not competent to grant leave or to call for explanation of any member of the staff at Bubak. This evidence remains unrebutted. Respondent's witness M. Akhtar did not state if the. applicant was doing anything other than the clerical and manual work. Even if the applicant was performing a supervisory function, besides doing the clerical work, that would not operate to exclude him from the definition of "workman", as held in P L D 1973 Lah.

594. In 1980 P L C 214, the A Sind Labour Appellate Tribunal held that a person who was employee to do manual work fell within the definition of workman, although his duties also included functions of a supervisory nature over the workmen in his charge. I therefore hold that applicant is a workman:

7. It was argued that the A.C.O. III who issued the charge‑sheet R/.1 and the C.M.I. who conducted the enquiry were liable for the irregu larities detected on 10‑4‑1980 and they should have been co‑accused with the applicant. Sole reliance. for this contention was based on inspection . notice copy A/6. It simply says that Bubak Station was inspected on 4‑4‑1981 by C.M.I: and was visited b A.C.O. Ill on 5‑4‑1980 but they failed to detect the fraud. This does not make said officials liable for any irregularity.

8. It was admitted by M. Akhtar in cross that A.C.O. can sign charge‑sheets in respect of employees of R.N.S.P. 8 and below. It was argued that on 17‑4‑1980 the A.C.O. was not competent to. frame charge sheet copy R/1 against the applicant who was in R.N.S..P.

11. M. Akhtar said in cross that at the relevant time the applicant was in R.N.S P.

8. Applicant admitted in cross that before issue of the order copy A/8 dated 16‑11‑1980 he was in R.N.S.P.

8. No doubt, under order copies A/8 and R/21 dated 16‑11‑1980 the applicant was given Scale No. 11 with retros pective effect from 1‑5‑1979. But on 17‑4‑1980 the order copy A/8 was not yet passed and on that date he was in Scale No. 8 and hence A.C.O. III was competent to charge‑sheet him.

9. M. Akhtar admitted in cross that it was the Divisional Commer cial Officer (DCO) who complained against the applicant. He further admitted that the punishment was ordered by the D.C.O. although the punishment letter copy R/20 was signed by the D.P.O. In view of these admissions there‑ is force in contention of Mr. Wasiullah Qureshi that principles of natural justice have been violated in this case inasmuch as the same person who was complainant has imposed penalty upon the applicant: This alone is sufficient to set aside the impugned. order.

10. In addition the record shows that enquiry against the applicant was riot conducted in a proper way. Not a single witness was examined: Instead of examining Mohd. Siddique, the Enquiry Officer has brought on record his written submission copy R/15. The Enquiry Officer chose to interrogate the applicant and he trial to secure admission of the applicant on certain incriminating issues. In spite of such effort, the only answer favourable to the prosecution which the Enquiry Officer has been able to secure from the applicant was the one given in response to Question No. 28, as pointed out by Mr. Jehangir. In said answer the applicant stated that as per rules the Station Master was .entirely responsible for recovery of the railway dues. He has also given undertaking to pay Rs. 1,517.10 if the concerned party failed to pay the same. By no stretch of imagination this can tant amount to confession of guilt by the applicant.

11. M. Akhtar admitted in cross that copy of report of the Enquiry Officer was not sent to the applicant with second show‑cause .notice copy R/18. The Supreme Court of Pakistan has held in 1973 S C M R 455, that a workman should be furnished with a copy of the Enquiry Officer's Report against him. In 1975 P L C 818. it was held that where Enquiry Officer's report was not supplied with Enquiry ‑Officer's Report to the employee to explain adverse findings of the Enquiry Officer, re‑instatement by the Courts below was proper.

12. In view of the above discussion I hold that the enquiry against the applicant was improper and the impugned order was illegal and contrary to the principles of natural justice. I therefore set aside the impugned order as well as the enquiry proceedings and order re‑instatement of the applicant as Station Master in Scale No.

11. Respondents are at liberty to order fresh enquiry against the applicant on the same charge., If the respondent decide so the enquiry must be initiated within one month and should be completed within 2 months. Payment of back benefits would depend upon the result of‑such enquiry. But if no enquiry is conducted in the aforesaid manner the applicant would be entitled to full back benefits. Application accepted.