1979 PLP 229 (PLC)

"This is with reference to the application of my Stenographer Mr. Akram addressed to you with a copy to me. In all fairness to the person concerned, it is suggested that an inquiry be held and persons mentioned by him be called and their statements recorded. Again to be fair to the man, I want not to be involved in this and an independent inquiry be held."

4. The petitioner had cited Ch. Muhammad Hanif, General Manager (Production), Mr. Sami, Manager (Management and Administration) and Mr. Beg, Assistant Manager (Construction) as witnesses in support of his allegations.

5. The Managing Director on the same day i.e. 27‑5‑1976, held an enquiry to investigate the matter. He examined Messrs Hanif, Sami and Beg in the presence of the petitioner. He came to the conclusion that the allegations made by the petitioner against the Regional Director were totally false and unfounded. He directed Mr. Sami to initiate necessary disciplinary action against the petitioner for making false allegations against the superior officers. On the same day Mr. Sami served the following charge‑sheet:‑

"In pursuance to your application dated 27th May, 1976 to the Managing Director in which you made serious allegations against the Regional Director, the Managing Director held an inquiry in the Regional office on 27th May, 1976. In this enquiry you were present and the witnesses listed below, who were named by you in support of your allegations, were examined; (1) Ch. Muhammad Hanif, G. M. (Production). (2) Mr. Abdul Sarni, Manager (Management and Administration). (3) Mr. Masoom Beg, Asstt. Manager (Accounts), Based on the statements of these witnesses, the Managing Director came to the conclusion that the allegations were false and baseless. It is now proposed to initiate disciplinary action against you for making false, baseless and malicious allegations against a superior officer knowing him to be as such. Upon receipt of this letter, you are required to explain your position in view of the charge‑sheet issued to you. You are hereby suspended with effect from 2nd May, 1976 for the purpose of conducting an enquiry. Mr. Zafar Moin Butt, General Manager (Commercial) has been detailed to hold an enquiry on 28th May, 1976 at 10‑00 a.m. You are required to be present in this enquiry.

6. Mr. Sami issued a separate letter to Mr. Zafar Moin Butt, General Manager (Commercial) to hold an enquiry on 28‑5‑1976 at 10‑00 a.m.

7. On 28‑5‑1976, the petitioner appeared before Mr. Sami. He presented an application (Exh. D‑5) raising six objections on the departmental proceedings against him. Three of the objections are ; first, he was given only sixteen hours to submit an explanation to the charge‑sheet and this time was grossly inadequate, second, that Mr. Zafar Moin Butt Enquiry Officer, was inimical to him and that he did not expect justice from him because he was subordinate to the Regional Director against whom the allegations were levelled and so he was not in a position to hold an independent enquiry, third, that no preliminary enquiry was he'd by the Managing Director in his presence and if there was any, the copies of the statement, the finding and the copy of the authority under which the Enquiry Officer was appointed may be supplied to him. It appears that this application was presented by the petitioner to Mr. Sami personally. At the same time, the petitioner withdrew this application vide letter Exh, D‑

6. Mr. Sami ordered the Enquiry Officer to proceed with the enquiry.

8. Before proceeding of the enquiry, the petitioner made a long statement (Exh. D‑1) before the Enquiry Officer stating his reasons that he had no confidence in him and so the enquiry should not be held. The Enquiry Officer observed that the application (Exh. D‑5) had been withdrawn, therefore, he proceeded with the enquiry. He recorded the statement of four prosecution witnesses. The points for determination before the Enquiry Officer were whether the Regional Director had used the language mentioned in the application of the petitioner and if not whether it was an act subversive of discipline on the part of the petitioner to make false allegations against the said officer. The first witness was Mr. Hanif. According to him on '13th May, 1976 Mr. Zulfiqar Ahmad, in connection with the case of Chishti said to the petitioner "the way you are working it is either going to damage me or the company". The second witness was Mr. Samt. Regarding the case of Chishti, he made the following statement "On observing this discrepancy Mr. Zulfiqar, Regional Director sent for Mr. Akrarh in my presence and asked him as to why the leave entitlement was included in the letter without his prior consent. Mr. Akram could not give convincing answer to Mr. Zulfiqar Ahmad, on which be was annoyed and told Mr. Akram that by tampering with this letter he had betrayed his trust/confidence. He also told Mr. Akram that he acted like a fool by making amendment in the approved letter, on his own, without any authority."

9. Regarding the incident of 26‑5‑1976, be made the following state ment :‑ "On 26th May, 1976 at about mid‑day I was with Mr. Zulfiqar Ahmad. Regional Director, when Mr. Akram brought the daily dak folder for perusal of the Regional Director. The Regional Director saw some letters the copies of which he had already seen. On this, he asked Mr. Akram, Stenographer, that he was putting up the same copies of the same letter again and again which he had already seen. On this, Mr. Akram said that he was busy in doing some work and the Diarist placed these letters in the dak folder meant for the Regional Director without his notice. Mr. Akram also expressed his inability to sort out the dak before bringing to the Regional Director due to his pre‑occupation. On this, Mr. Zulfiqar, Regional Director, was annoyed and he remarked that even a boy of 8th class could be able to understand the instructions that he had‑already issued to him. Again he told him that "he (Mr. Akram) is acting like fool and is not acting like a responsible official" for which Mr. Akram expressed his regret and assured Mr. Zulfiqar, Regional Director, to be careful, in future."

10. The third witness is Mr. Beg. According to him, the Regional Director, relating to the incident of 13‑5‑1976 had used the words "authority is vested in me (Mr. Zulfiqar) and not in (Mr. Akram)." With respect to the incident of 26‑5‑1976, he said that the Regional Director had told the petitioner "you are fool, a dam fool wasting my time".

11. The fourth witness is Mr. Zulfiqar Ahmad, the Regional Director. He said that he did not use any bad language on 13‑5‑1976. He admitted that he addressed the petitioner on 26‑5‑1976 like this "he is acting like a fool and that it is so simple that it is given to a child of 8th class, he can do it very easily". In defence, the petitioner examined four witnesses. They talked about the general behaviour of Mr. Zulfiqar Ahmad. According to them, he was a harsh officer and usually indulged in bad language.

12. After the evidence was closed, the Enquiry Officer embarked on the mission to ascertain the antecedents of the petitioner as well as his witnesses. He wrote a letter to the Registrar, Lahore High Court, Lahore asking him to inform about the antecedent of the petitioner because the petitioner had been serving the Lahore High Court previously. The infor mation received from the Registrar vide letter Exh. D‑20 was that the petitioner served there for eight years, that he was dismissed from service on the charge of forgery and that his behaviour was highly objectionable during the service. The Enquiry Officer addressed another letter to the management of West Pakistan Tanneries about one Abdul Ghaffar who appeared as a witness. The reply received was that Abdul Ghaffar was a dismissed employee and he was bad character as he had been leading processions against the Management. He also obtained an affidavit from Abdul Kareem another defence witness that his statement in favour of the petitioner was false. During the enquiry, the petitioner had obtained leave on the ground that his mother was sick in the Hospital. The Enquiry Officer contacted the Hospital Authorities and they replied that his mother was never admitted in that Hospital. On another occasion, the petitioner obtained leave that his son had died. The Enquiry Officer sent the employees to his house and they got the information that the information of the death of the son of the petitioner was absolutely false.

13. In brief, the evidence produced by the petitioner was disbelieved and a verdict of guilty was given by the Enquiry Officer. After a second show‑cause notice, he was dismissed from service.

14. In the written reply, the employer has raised two legal objections ; first, that the petitioner's grievance notice was time‑barred and second, that the petitioner was not a workman. Both the objections are devoid of force. There was no necessity to serve any grievance notice because the case was covered by subsection (6) of section 25‑A of the Industrial Relations Ordinance. In this view, I am fortified by the authority Messrs Crescent Sugar Mills Limited v. Haji Muhammad and another (P L D 1976 Lah. 1176). The petitioner was a Stenographer. The nature of his duties was clerical and so he was a workman. Both the objections are overruled.

15. The petitioner has enumerated thirty‑one grounds to challenge the order of his dismissal. I would not take each ground separately. I would only take three points which have been mainly argued before me by the parties.

16. The first point was that Mr. Sami was a subordinate to the Regional Director, that he was a witness of the prosecution, therefore, he was not in a position to pass an order of dismissal. Mr. Sami was also Manager and by virtue of his office, he was subordinate to the Regional Director who was holding a superior post in the same establishment. It may be noted that the allegation of the petitioner was that the Regional Director had used obscene, filthy and obnoxious language while addressing the petitioner and that Mr. Sami was a witness on both the occasions. Mr. Sami did appear as a prosecution witness against the petitioner. The question is whether Mr. Sami was competent to act as authority to pass the order of dismissal.

17. The preliminary enquiry is alleged to have been held by Mr. Humayun A. Gauhar. Managing Director on 27‑5‑1976. Mr. Sami appeared as a witness before him. These proceedings are not before me. However, it seems that Mr. Sami has stated before the Managing Director that the allegations of the petitioner against the Regional Director were false. Mr. Sami on the same day issued a charge‑sheet to the petitioner, His duty was to obtain an explanation of the petitioner and thereafter, he had to apply his judicial mind on the question whether the explanation of the petitioner was satisfactory or not. In case, he found that the explanation of the petitioner was unsatisfactory, be had to appoint an Enquiry Officer. After receiving the enquiry report, he served a show‑cause notice to the petitioner as to why he should not be dismissed from service. On receiving the explanation again, he applied his mind whether the punishment should be imposed on the petitioner. Obviously, he had been acting in dual capacity. He appeared as a witness twice in this case. Firstly he appeared as a witness before the Managing Director and secondly he appeared against him as a witness before the Enquiry Officer. He also acted as a Judge in this case. Without any manner of doubt, a witness cannot act as a Judge. On this point a Supreme Court Authority, Muhammad Mohsin Siddiqi v. Govern ment of Pakistan (P L D 1964 S C 64) may be referred to with benefit. Mr. Siddiqi was a Stenographer to the District Judge, Hyderabad. In this case in a departmental enquiry the charge against Mr. Siddiqi was that he bad mis-conducted, misbehaved and insulted his superior officer i.e. District Judge, Hyderabad and launched, unfounded, malicious, insulting, insinuating language against him. The enquiry was conducted by the same District Judge and finally he was dismissed. Their Lordships observed; "The later is the attitude generally held in these matters by judicial authorities to whom, by virtue of their function, it is anathema that any person should be a prosecutor and the Judge in his own cause. It is, therefore calculated to cause dismay that in the present case an administrative agency composed of a single person within the frame work of the judiciary should have been consciously allowed to operate as prosecutor and Judge and finally as punishing authority in its own cause. This was the quarter in which such proceeding was least to be expected. In our opinion, no ground in justice can be advanced in support of the proceedings before Mr. Kadir Nawaz Awan, and every principle of jurisprudence combines to require that those proceedings should be entirely set aside."

18. In the same case it was further observed :‑

"The whole proceeding in a departmental enquiry is required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors, Judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the Rules. There is power and there are facilities available, to place the conduct of the enquiry and the report thereon in other hands and in such a case the officer who is the offended complainant must give his evidence in support of the complaint before such officer."

19. In another case reported as Khyber Vegetable Ghee Mills, Lahore v. Muhammad Ahmad (1977 P L C 72) the learned Labour Appellate Tribunal observed as under :‑

"The learned counsel for the appellant contended that since the proceedings were not before a Court of law and were domestic in character, therefore, any irregularity in the conduct thereof is imma terial. This contention is devoid of force, because even when the proceedings are taken by a domestic tribunal or by bodies other than Courts of law, the minimum these have to do consistently with elementary justice and fairplay is to show that they are acting on their own i.e. independently and impartially between the parties arraigned before them. Any ex facie partiality or irregularity knocking out the minimum norms of law and justice would be of no consequence. It is quite elementary that a person, who is a witness cannot function as a Judge or on behalf of a Judge. The minimum norms of justice and fairplay are not confined to proceedings in the corridors of Courts of law. These extend to, as was said in relation to a right of hearing by the late and noble Lord of the Supreme Court of Pakistan, Mr. Justice M. Shahabuddin, who later on became the Chief Justice of Pakistan in the case Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 to all proceedings, by whomsoever held, which may affect the person, the property or other 'rights of the parties concerned in dispute."

20. The same view was expressed by a Single Bench of Lahore High Court in General Manager, Lyallpur Cotton Mills, Lyallpur v. Sardar Muhammad and others (1977 P .L .C 139).

21. In the instant case, Mr. Sami acted as a prosecution witness as well as a Judge while determining whether the penalty of dismissal should be imposed on the petitioner. The order of dismissal is illegal on this ground alone, Mr. Ali Sibtain Fazli, Advocate, argued that the decision of a Judge made in a case in which he has a interest is, in a case of necessity, un‑impeachable. He referred to Dimes v. Grand June, Can Co. (3 H L Cas. 759) quoted page 70 in the book entitled "A Selection of Legal Maxims" by Herbert Brown. His argument was that Mr. Sami was the employer and he was the only person to impose the penalty on the petitioner and so law of necessity required that he alone could act as a Judge so his order was unimpeachable. I see no force in this argument. The disciplinary action was initiated by Mr. Humayun A. Gohar, Managing Director and so the matter ought to have been referred to him for final adjudication. It appears to me that in the hierarchy of the respondent‑Corporation there were Managers, Regional Directors and the Managing Directors and so it could not be said that only a Manager could pass the order of dismissal. This order must have been passed by an authority who was independent. Obviously, the order is illegal because it has been passed by a person interested in the case as a witness.

22. The next point raised by the petitioner was that the Enquiry Officer was biased and he was not in a position to act independently in his case. Before the enquiry was started on 27‑5‑1976, an application was given by the petitioner to Mr. Sami to change the Enquiry Officer. In fact, in this application he wanted time for the adjournment of the enquiry. His reasons were that sufficient time was not given to him to submit the explanation to the charge‑sheet, that he required certain documents to examine before furnishing his explanation and that the Enquiry Officer was not independent because he was inimical to him and that he was a subordinate of the Regional Director. It appears that at the instance of Mr. Sami, this application was withdrawn but the petitioner did not give up his objection regarding the biased mind of the Enquiry Officer. He appeared before the Enquiry Officer and made a very long statement. He narrated certain incidents on account of which he apprehended that justice would not be done to him besides he stated that the Enquiry Officer was subordinate to the Regional Director, therefore, there was no likelihood that he would decide against his superior officer. These objections were not decided. The enquiry was commenced on the plea that the application had been withdrawn. In fact, the petitioner had never withdrawn his objection relating to the competency of the Enquiry Officer. Thereafter, the petitioner gave numerous applications on the same subject, but no decision was made. I also find that the Enquiry Officer acted as a prosecutor. When the evidence of both the parties was closed, he proceeded to make investigation about the antecedents of the defence witnesses. He addressed a letter to the Registrar of the Lahore High Court. He received information that the petitioner had been dismissed by the High Court on the charge of forgery and during the eight years of service in the High Court, his conduct was not good. He also got information from the Hospital to ascertain if the mother of the petitioner had been admitted in the Hospital or not. Similarly, be collected information about all the witnesses produced by the petitioner. This procedure was beyond the scope of the Enquiry Officer. He was not competent to make any further investigation. He could not use information against any of the witnesses of defence because the petitioner was not a party to this investigation. He had no chance to rebut the information which had been received from different quarters by the Enquiry Officer. It was extraneous matter and it could not be used. The only conclusion which can be drawn by this novel procedure is that the Enquiry Officer wanted to give a verdict of guilty. He cannot be termed as independent. Three reasons i.e. first he was stated to be inimical by the petitioner, second, he was subordinate to the Regional Director and third, he collected extraneous matter to strengthen the case against the petitioner, lead me to the conclusion that the Enquiry Officer was non‑independent, prejudiced and biased. He was, therefore, incompetent to act as an Enquiry Officer. The order of dismissal is illegal on this ground also.

23. The next point urged before me was that a proper chance of defence was not given to the petitioner. I find that the charge‑sheet was framed on 27‑5‑1976 and the petitioner was required to explain his position. No time was given to him as to when he bad to submit his reply to the charge‑sheet. At the same time, he was asked to appear before the Enquiry Officer on the next day. It is clear that no time was given to the petitioner to submit his explanation. He did appear before Mr. Sami on the next day and he told him that only sixteen hours had been given to him for submitting a reply. He requested that some more time should be given to him. His request was not considered.

24. It was the duty of the employer to obtain explanation of the petitioner and after applying his judicial mind, finding was to be given whether the explanation was unsatisfactory. An Enquiry Officer could only lie appointed if the explanation was found unsatisfactory. No such decision was taken. Mr. Sami served the charge‑sheet on the petitioner on 27‑5‑1976 and on the same day he appointed the Enquiry Officer. Obviously, this decision was taken without considering the explanation of the petitioner. As proper time was not given to the petitioner to submit his explanation and as an Enquiry Officer was appointed without considering the explanation of the petitioner, therefore, I hold that a prejudice has been caused to the case of the petitioner. On this ground also, the order of dismissal is illegal.

25. For the above reasons, the petition is accepted and the respondent is directed to re‑instate the petitioner.

26. As the petition has been accepted on technical grounds, therefore, back benefits are not allowed. Petition accepted. Re‑instatement ordered.