1986 PLP 378 (PLC)

Date of hearing: 16th September, 1985. This appeal came up for hearing against the impugned order passed by the Sind Labour Court No. V at Karachi on 8‑6‑1983. The appeal was heard and it was reserved for Judgment.

2. The appellant, Muhammad Asghar, filed a petition under section 25‑A, I.R.O. 1969, relating to the facts that he was a Guard in Grade II in the year 1977. He was attached with Tezgam at a relevant date, namely, on 27‑7‑1979, and was booked as second Guard (Luggage Guard). The train was stopped at Padidan khAway Station by the Station Master. The Station Master on duty gave verbal order to the Guard‑in‑Charge of the train to allow loading as per Divisional Transport Officer, Sukkur, who has provided the stoppage to all the non‑stopping trains for clearing fresh vegetable crates of lemons to avoid heavy claims against the Railway for its non‑despatch. The Incharge Guard was satisfied with the orders and instructions permitted the loading, railway porters in presence of Station Master. However, after loading these vegetable crates the train proceeded. On the next date, namely, on 28‑7‑1979, the appellant .was directed by the Divisional Transport Officer, Sukkur, to attend an enquiry at Padidan on 29‑7‑1977. This was an informal enquiry by Mr. Sardar Hussain Shah, A.T.O.; Sukkur, five months thereafter the appellant was served with a show‑cause notice. This show‑cause notice was not proper and the appellant asked for the copies of the informal report. Thirteen months thereafter the report of the enquiry was served on the appellant, namely, on 4‑5‑1981. The show‑cause notice was answered on 7‑5‑1981. Then, again the appellant was directed to attend the enquiry. In this enquiry, the Enquiry Committee was not appointed by the 'Competent Authority. However, the findings of the Enquiry Officer was that the appellant be removed from service. The Departmental appeal was filed by the appellant which was pending when grievance notice was sent on 16‑5‑1982. Thereafter the grievance petition was filed. On 3‑7‑1982, in the Departmental appeal it was decided that the appellant be reduced in rank in the Grade I by the stop for a period of three years.

3. The contention of the respondents was that in the year 1976, the appellant was promoted as Guard in Grade II and was confirmed on 17‑2‑1981. They denied that this Guard was victimized on account of his trade union activities. All the same, he had no good record and was awarded as many as 10 punishments on various charges as per details given. Further, the respondents denied all the allegations and they have stated that the enquiry was held by the competent authority.

4. The appellant filed affidavit in evidence and he was cross‑examined so also the respondents filed affidavit of Shafiullah, the Head Clerk and he was cross‑examined.

5. The learned counsel were heard by me. The counsel of the respondents on the face of it argued that the grievance petition was filed without the proper grievance notice. The grievance notice has been produced by the appellant as Annexure 'C'. This notice was, dated 16‑5‑1982. On the basis of the grievance notice, the appellant filed the grievance petition praying therein that the order of the removal may be set aside with consequential benefits. But, subsequently, in the departmental appeal he was punished by reduction in rank and was re‑instated. Therefore, his prayer for re‑instatement was not proper and the very petition was premature. The learned counsel of the respondents has, therefore, argued that the appellant has no cause of action and the relief not claimed cannot be granted. These are the main points in the arguments of the counsel for the respondent.

6. The arguments of Mr. Ali Amjad for the appellant are that the charge‑sheet was served three months after the incident, therefore, it was time‑barred. But, it may be noted that no enquiry under order 15(4) of the Standing Orders Ordinance, 1968, was conducted which is called domestic enquiry. This enquiry pertained to the Railway Disciplinary and Services Rules. Akram referred to an authority reported in 1982 P L C 883, therein, it was held that when the charge‑sheet initially served more than 4 months after alleged incident, the charge?sheet in the circumstances was time‑barred and holding of domestic enquiry against the accused under the circumstances was not permissible. Here, the domestic enquiry is not held. This is a regular enquiry conducted by Authorised Officer and the penalty in the first instance to remove from service, but in appeal, he was reduced in rank for three years. Mr. Ali Amjad went on quoting the Rules for instance, the Rule 96 of General Rules of Pakistan Railways, wherein it was provided that when, a train is within its station limits, the Guard will be under the orders of the said Station Master, and so on and so forth the various rules are quoted. Under rule 5 of the Personnel Manual of the Railway Department, the procedure in the enquiry provided in sub‑rules (1), (2), (3) and (4). These rules are termed the Railway Rules.

7. In the affidavit of Sheikh Shafiullah, it is clearly stated that the proper opportunity was given to the appellant to face the enquiry and after the enquiry was completed, he was removed from service, but in appeal, his removal was called back and he was reduced in rank. Cause of action of the appellant seized to exist and as such, the grievance petition under section 25‑A, Industrial Relations Ordinance, 1969, would not lie.

8. I have gone through the impugned order and the general circumstances in this appeal. The appellant was removed from service on account of his misdeeds and misconducts which number is not less than

10. Subsequently he was reinstated in the service and only a minor punishment is given or reduction in rank for three years and these three years now must have passed.

9. In these circumstances, I maintain the order of the learned Labour Court and dismiss this appeal. A.E.???????????????????????????????????????????????????????????????????????????????????????? ????????? Appeal dismissed.