1981 PLP 454 (PLC)

M. S. Bokhari for Respondent. Date of hearing : 16th October, 1980. This petition has been submitted by Raja Muhammad Akram under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against the General Manager, Army Welfare Food Industries, Faisalabad, against his dismissal. The petitioner has submitted that he was appointed as Senior Clerk in March, 1968 and was subsequently promoted as Accounts Assistant. On 31st May, 1980 the petitioner received two charge‑sheets issued by the Assistant General Manager. The first charge- sheet stated that the petitioner as despatch clerk sent a letter on a wrong address and the petitioner had replied that because he bad worked as despatch clerk only for two days, the omission on his part should be condoned as it was not intentional. The second charge‑sheet related to the petitioners's allegation against the General Manager in a pamphlet. The petitioner replied to that charger‑sheet on 4th June, 1980 saying that what he had stated in the pamphlet was based on facts and no action was therefore, taken can that charge‑sheet and the matter was closed. On 7th June, 1980 he received the third charge‑sheet reiterating the charges levelled in the second charge‑sheet. This charge‑sheet could not be served legally because the proceedings on the first charge‑sheet were closed. He submitted that an enquiry was conducted against him and it was not an independent enquiry nor' he was allowed to produce the defence fully. Moreover he was served three charge‑sheets and an enquiry was held simultaneously on all these charge‑sheets on one day. He was found guilty and was dismissed. He has further submitted that in the enquiry the; petitioner did not appear himself nor any witness spoke against him. None of the witnesses or the complainant even rebutted what he had stated in the pamphlet but even then he was found guilty of misconduct which proves that the enquiry officer was partial. He has submitted that the order being illegal should be set aside and lie should be re‑instated with full back benefits.

2. The respondent has stated in the parawise comments that the petitioner's career was not spotless as he was warned on 31st August, 1973 to mend his attitude and behaviour. He was demoted to the post of Senior Clerk on 21st November, 1979. It was further pointed that the petitioner was charged for carelessness and inefficiency and that the Assistant General Manager was competent to issue the said charge‑sheet. Since the petitioner had admitted that he had issued a letter containing very grave and false allegations against the General Manager, the charge sheet‑was issued to him on 7th June, 1970 and it is incorrect that after his reply the case was dropped against him. The enquiry against him was independent and impartial and because only two charge‑sheets were served on him a joint enquiry was held in respect of both these charges in accordance with law. It was therefore, submitted that the petition may be dismissed.

3. The learned counsel for the petitioner argued that the petitioner bad admitted that he was responsible for the despatching. of a letter on the wrong address as it was his second day as despatch clerk. The learned counsel submitted that it was not a misconduct but an omission as given in Standing Order 15(2)(d) of the Standing Orders Ordinance. The petitioner was issued second charge‑sheet on 31st May, 1980 on different charges, to which he replied on 5th June, 1980. He was issued a third charge‑sheet on 7th June, 1980 containing the same charges and as such the petitioner gave the same reply to this charge as well. He cited case law reported in 1969 P L C 46 . and' 1971 P L C 224 wherein it was held that the charges once withdrawn cannot be served again. He further argued that the Assistant General Manager had issued all these charge‑sheets and he was not competent to issue the same and that these charge‑sheets should not have been issued by the Mills Manager. He further argued that the General Manager was the aggrieved person and he issued the dismissal order of the petitioner which was against the provisions of the law. He cited case‑law reported in P L D‑1964 S C 67 ; P L D 1967 Kar. 768 ; 1977 P L C

567. He also argued that in the pamphlet issued by the petitioner charges were levelled against the General Manager but he did not appear in the enquiry and that P. W. 1 had simply produced the letter and the Enquiry Officer had relied upon that letter, He also submitted that Muhammad Akram was not allowed to be cross‑examined.

4. The learned counsel for the respondent submitted that the film was arranged at the request of the workers in a big hall where workmen and the women sit in separate compartments to 'see these film shows.`. He quoted case‑law reported in 1976 P L C 794 to which it was held that wild allegations amounted to an act subversive of discipline. The petitioner was therefore, issued charge‑sheets and found guilty of mis conduct and was removed from service.

5. I have gone through the. enquiry proceedings and I find that the petitioner was charge‑sheeted for carelessness and inefficient working as he had despatched a letter at a wrong address. The , petitioner accepted his omission and frankly stated that it was his second day as despatch clerk and the mistake was not intentional. This action is covered under clause (d) of section 15(2) of the Standing Orders Ordinance and a worker found responsible for committing any such act or omission may be repremanded or fined but there is no provision in the law for awarding punishment of dismissal for such acts and omissions.

6. The petitioner was also charged for addressing a letter to the President of Pakistan regarding certain grievances. He was charged for violating the procedure laid down in section 25‑A of the I S D, 1969 and was therefore, convicted on a charge of an act subversive of discipline. Section 25‑A of the I S D lays down procedure for redress of grievances and there is no question of committing violation of this section by an individual employee. If the worker has any individual grievance against the employer he may adopt this procedure but if a worker does not follow this procedure he cannot be charged of committing an act subversive of discipline.

7. The petitioner was further charged for an offence of misconduct under section 15(3)(h) of the Standing Orders Ordinance, because he had made certain allegations against the workers' families and the officers. In the enquiry proceedings the petitioner accepted the contents of the pamphlet and submitted that he had stated in the pamphlet what he had actually seen and being a Muslim he considered it as undesirable and had done this to stop the workers and the officers from indulging in such activities. There is nothing on. the record to show that whatever the petitioner had stated was incorrect or these were wild allegations. The petitioner could not therefore, he charged for any act subversive on discipline on this account.

8. The third charge against the petitioner related to the policies of the General Manager he and was charged for offence of wilful insubordi nation under section 15(3)(h) of the Standing Orders Ordinance. The language used in the pamphlet against the General Manager does not in any way constitute an offence of wilful insubordination or disobedience. The respondent therefore, failed to establish the charge of misconduct levelled against the petitioner and I find that his dismissal was not legal and I, therefore, direct that he should be re‑instated in service with full back benefits. Petition accepted.