1990 PLP 387 (PLC)

Applicant Ghulam Ali has tiled this application under section 25‑A of the Industrial Relations Ordinance, 1969 for reinstatement with continuity and full back benefits.

2. Applicant was employed as Conductor in the Karachi Transport Corporation on 26‑5‑1985 he was on duty on Bus No. 780 which was plying from Khokhrapar to Saddar and was checked by M/s. Abdul Jalil, Inspector, Abdul Rehman Inspector, Kamaluddin, Traffic Assistant and Khaliq Ahmed, Station Superintendent under the supervision of the Director, Operation Colony Gulistan Khan from Nursery to Saddar. The checking party found 12 lady passengers travelling without tickets from Khokhrapar to Saddar and it is alleged that from those 12 lady passengers the applicant had realized fare at the rate of Rs.1.75 each and had not issued the tickets to them. The checking party confronted the lady passengers with the applicant and took in their possession unpunched 12 tickets each of Rs.1.75. The applicant has alleged that charge was baseless and he had replied the allegations in the charge‑sheet. An enquiry was ordered and an Enquiry Officer was appointed and thereafter another Enquiry Officer was appointed who proceeded with the enquiry from the stage his predecessor had left when this second Enquiry Officer proceeded with the enquiry third Enquiry Officer from the stage the second Enquiry Officer had left. It is alleged by the applicant that he has been victimised due to his Trade Union activities as he was office‑bearer of the C.BA. Union. T.T. 40 report was not filled on the spot but it was filled at Saddar Terminus where 12 unpunched tickets were obtained from him on the pretext that his target was less. There are two different T.T. 40 reports one bearing No. 0004447 and another 0004448. It is alleged by the applicant that no passengers were confronted with him. It is alleged by the applicant that despite knowledge that he was ill w.e.f. 16‑8‑1986 the enquiry was held at his back and he was neither provided opportunity to cross the prosecution witnesses nor his statement in defence was recorded and the Enquiry Officer proceeded ex parte. The Enquiry Officer also assumed the role of prosecution and cross‑examined the witnesses to establish the allegations. During enquiry, statement of the ticketless passengers were not recorded. As a result of improper enquiry the applicant was dismissed from service. The applicant sent grievance notice dated 17‑11‑1986 which was neither redressed nor controverted. The respondent in reply statement raised the legal objections that the applicant has served grievance notice and has filed the grievance petition against the Karachi Transport Corporation instead of District Manager, K.T.C., Korangi Depot who dismissed the applicant from service, as such grievance notice and grievance petition are not maintainable. On facts the respondents stated that the applicant was charge‑sheeted on correct and genuine allegations on 30‑5‑1985. Mr. Abdul Rasool was appointed as Enquiry Officer who had not yet completed the enquiry that he was transferred to Headquarter Office and Mr. Quwat Ali Shaikh, A.T.M. was appointed as Enquiry Officer in place of Mr. Abdul Rasool but he had not yet started the enquiry that Mr. Mumtaz Hussain Shah, A.T.M. was appointed as Enquiry Officer who started from the stage the first Enquiry Officer had left. The enquiry was conducted in accordance with the procedure. The applicant was charge‑sheeted for not issuing tickets to 12 passengers travelling from Khokrapar to Saddar although having realized fare from them at the rate of Rs.1.75 ‑each. TT‑40 was filled at the time of checking. The ticketless passengers were also confronted to the applicant and the applicant having admitted his guilt he handed over 12 unpunched tickets of Rs.1.75 each to the checking party. The copy of TT‑40 report was also given to the applicant on the spot and the applicant wrote his statement on the TT‑

40. In respect of two TT‑40 reports viz. 0004447 and 0004448 the respondent explained that it was due to printing mistake that difference in numbers has arisen. The respondent stated that enquiry proceedings were held in presence of the applicant and he was given full opportunity to cross‑examine the prosecution witnesses and defend himself. On 13‑8‑1986 the case was adjourned to 24‑8‑1986 on request of the applicant but the applicant did not appear on 24‑8‑1986 and did not send any intimation to the Enquiry Officer as such the ex parte proceedings were held. The respondents stated that the Enquiry Officer; has get right to cross‑examine the prosecution and defence witnesses to clear the position. It is alleged that the applicant misappropriated Government revenue of Rs.21 and charge of misconduct was proved against him in the departmental enquiry.

3. Applicant Ghulam Ali filed his affidavit‑in‑evidence and he was cross?-examined by Mr. Gul Muhammad Soomro representative for the respondents. Respondents examined Syed Mumtaz Hussain Shah, Enquiry Officer who was cross‑examined by Mr. Khalil‑ur‑Rehman representative for the applicant. Both the parties have filed the documents and the enquiry proceedings with the report of the enquiry officer have also been produced on the record.

4. I have given my anxious consideration to the arguments advanced by Mr. Khalil‑ur‑Rehman representative for the applicant and Mr. Azmatullah representative for the respondents and authorities cited by them and have appraised the evidence oral and documentary on the record. Point No.

1. Whether the grievance notice and the grievance petition are not maintainable? Point No.

2. Whether the domestic enquiry conducted against the applicant is irregular and improper and the applicant has been dismissed from service as a result of irregular and improper enquiry and the applicant is entitled for the relief claimed by him? Point No.

1. The applicant has served grievance notice on the District Manager, K.T.C. Korangi Depot Karachi and has filed grievance petition against M/s. Karachi Transport Corporation through District Manager Korangi, Karachi. The applicant was dismissed from service by the District Manager, K.T.C. Korangi Depot, Karachi and he has therefore, served grievance notice and filed the grievance petition against the proper person and the same are maintainable. The authorities reported in 1980 P L C 651 Re: Ismail v. Director‑General (Coordination) Marie Adelaide Lepro Centre, (2) Muhammad Yousaf v. Punjab Urban Transport Corporation reported in 1981 P L C 88, and Raeesuddin v. Allied Bank of Pakistan Ltd. reported in 1982 P L C 920 cited by Mr. Azmatullah representative for the respondent are not applicable to the facts of the present case as in the cited case the notice was not served on the authority who had powers to appoint and dismiss the employee but either the notice was served on the appellate authority or not the actual employee. Point??? No‑

2. The applicant claims to be permanent workman employed in K.T.C. Obviously the enquiry has been held against the applicant under the Standing Orders Ordinance, 1968. I do not find force in the contention of Mr. Khalil‑ur‑Rehman representative for the applicant that K.T.C. Employees Efficiency and Disciplinary Rules, 1980 apply to the case of the applicant, whereby the Enquiry Officer is required to complete the enquiry within 15 days and the enquiry conducted against the applicant beyond 15 days is incompetent as sub‑rule (b) of Rule (1) of K.T.C. Employees Efficiency and Discipline Rules, 1980 says that the Employees Efficiency and Discipline Rules 1980 do not apply to the worker or workman. Rule (1)(b) is reproduced: "(b) They shall come into force at once and shall apply to all employees of the Karachi Transport Corporation except a person who on deputation to the Corporation from Federal or Provincial Government and a person who is "Worker" or "Workman" as defined in Industrial Relations Ordinance, 1969, West Pakistan Commercial Employment (Standing Orders), 1968 Workmen's Compensation Act, 1933 and Factories Act, 1934." Mr. Khalil‑ur‑Rehman representative for the applicant has contended that the alleged misconduct was on 26‑5‑1985 and the enquiry was conducted in December 1985 after more than 7 months and therefore, the enquiry is contrary to the law. In support he has placed reliance on 1989 P L C 132 Re: Ali Hassan v. Government Transport Service. This authority does not apply to the facts of present case as in that case there was delay of six months between commission of alleged misconduct and framing of charge‑sheet which was held to be not warranted by Standing Order 15(4) of Industrial and Commercial Employment Standing Orders Ordinance, 1968, whereas in the present case the alleged misconduct was of 26‑5‑1985 and the applicant was charge‑sheeted on 30‑5‑1985. Next contention of Mr. Khalil‑ur‑Rehman representative for the applicant is that without assigning any reason the Enquiry Officers have been changed which is prejudiced the applicant and the action taken on basis of such enquiry is not sustainable. In support of his contention he has placed reliance on 1977 P L C 200; Re: Fazal Cloth Mills Ltd. v. Rahim Shah and others as under:‑‑ ‑‑Domestic enquiry‑‑Enquiry Officer changed during enquiry‑‑No reasons adduced‑‑Such act being wholly on discretion of Management held, prejudiced accused‑‑Action taken on basis of such enquiry‑‑Not sustainable‑‑Accused, in circumstances, awarded reinstatement with back benefits. (I.R.O. XXIII of 1969) S. 25‑A." He has also referred 1988 P L C 213 Re: Faqir Muhammad v. Karam Ceramics (Pvt.) Ltd. Placitum (d) as follows:‑‑ "(d) Industrial dispute:‑‑ ‑‑Domestic enquiry‑‑Change of Enquiry Officer‑‑Reliance by new Enquiry Officer upon evidence and cross‑examination recorded by previous Enquiry Officer, held, was not proper and resultant penalty order not sustainable:" Next it has been contended by Mr. Khalil‑ur‑Rehman representative for the applicant that it has been submitted in cross‑examination by Syed Mumtaz Hussain Shah, Enquiry Officer that statements of prosecution witnesses were not recorded on oath. The enquiry proceedings are therefore irregular and are liable to be vitiated. In support of his contention he has placed reliance upon 1987 P L C 877 Re: Adamjee Paper and Board Mills Ltd. v. Shad Muhammad relevant page 879 as follows:‑‑ "In fact a Court or a person with authority under the law to examine a person as a witness has no option but to examine a witness on oath or solemn affirmation and it is only where the witness is a child and the Court is of opinion that he does not understand the nature of the oath or affirmation that he may record his evidence without oath or affirmation. Section 13 of the Oaths Act, no doubt, cures the act of irregularities or affirmation to the deponent but nonetheless the evidence recorded without bath cannot balance in weight with the evidence on oath. Some what a like view was forwarded in an authority of the Punjab Labour Appellate Tribunal published in 1980 P L C 74 when statements of the witnesses not given on oath in a domestic enquiry were held in admissible and the verdict of the Enquiry Officer based as such evidence was declared invalid." He has also referred 1980 P L C 74 Re: Wyeth Laboratories (Pak) Ltd and others v. Rafiuddin and others as follows:‑‑ "(a) Industrial dispute‑‑ ‑‑‑Domestic enquiry‑‑Evidence‑‑Witness must be administered oath and thereafter evidence recorded in presence of accused‑‑Written statement already given to management‑‑Neither recorded on oath nor in presence of accused‑‑Inadmissible‑‑Enquiry based upon such statement‑‑Invalid‑?Oaths Act (X of 1873)." Next it has been contended by Mr. Khalil‑ur‑Rehman representative for the applicant that the applicant has shown that he had no confidence in the Enquiry Officer Mumtaz Hussain Shah and he had requested the District Manager, K.T.C., Korangi Depot to change the Enquiry Officer bit it was not done, hence the enquiry is not impartial and fair. Next it has been contended by Mr. Khalil‑ur‑Rehman representative for the applicant that no ticketless passenger were examined by the Enquiry Officer and it has been held in the several authorities that the ticketless passengers shall be examined in the domestic enquiry. He has placed reliance on 1986 p L C 838 relevant page 839 Re: Karachi Transport Corporation v. Abdul Hameed, where it is held:‑‑ "After going through the record I find that the checking party checked the bus while yet the Conductor was going to issue tickets to the passengers. In the domestic enquiry, no passenger was confronted with the Conductor and the evidence with regard to the fact that the tickets were not given to the passengers and money was charged. Such an evidence is lacking: The conclusion drawn in the domestic enquiry was therefore, wrong. Without establishing the factum that passengers were charged and the tickets were not issued, no case is made out against the Conductor. The safest course is that in the domestic enquiry some passengers may be examined." Next it has been contended by Mr. Khalil‑ur‑Rehman representative for the applicant that from the TT‑40 report No. 0004447 it appeared that Col. Gulistan had written the order in the words "Book off the conductor and severe disciplinary action against the individual". He contended that it was already decided to take action against the applicant and the enquiry was only a formal and it is clear that applicant has been victimised due to his Trade Union activities, he has placed reliance on 1978 P L C 201 Re: Daily Musawat Ltd., Lahore v. Hafeez Raquib where at page 203 it is held:‑‑ "Thirdly, I find that in charge‑sheet Exh. P. 3 it was mentioned that he had to appear before the Enquiry Officer, failing which ex parte proceedings would be taken against him. This, in my view, amounted to putting a cart before a horse, because under Standing Order 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1908 it is incumbent upon the employer to scrutinise the reply to the charge‑sheet and then decide as to whether the enquiry has to be held or not. In the present case, the appellant has already decided that the enquiry would be held irrespective of the fact as to what the reply of the charge‑sheet would be. The charge‑sheet was clearly in violation of law." Next, it has been contended by Mr. Khalil‑ur‑Rehman representative for the applicant that Mumtaz Hussain Shah, Enquiry Officer, has conducted part of enquiry against the applicant ex parte, and the statement of the applicant was also not recorded in his defence by the Enquiry Officer although the applicant had requested for adjournment of the enquiry proceedings on ground of his illness. He has placed reliance on. 1988 P L C (C.S.) 424(a) Re: Naseer Ahmed v. Senior Superintendent of Police, Rawalpindi and 2 others, as follows:‑‑ "(a) Civil service‑‑ ‑‑‑ Principles of natural justice‑‑Audi alteram partem (no body should be condemned unheard)‑‑Nemo judem in causa sua potest (No body should be judge of his own cause)‑‑Mala fides (bad faith) in Service matters is to be decided not only in accordance with law and rules but also in accordance with principles of natural justice as enunciated by Supreme Court of Pakistan‑‑Such principles are deemed to be integral part of each and every statute until specifically excluded by positive words." TT‑40 report No. 0004447 shows that Col. Gulistan who was head of the checking party had ordered in writing on the report "Book of the applicant and take severe disciplinary action against him". The Col. Gulistan was Director Operation and after his order to take severe disciplinary action against applicant I am of view that Mumtaz Hussain Shah,' Enquiry Officer has not conducted an impartial and fair enquiry. Enquiry Officers have been changed and it was third Enquiry Officer, Syed Mumtaz Hussain Shah ‑who has concluded the enquiry against the applicant and has submitted his report whereupon the District Manager, K.T.C., Korangi Depot has dismissed the applicant. Admittedly part of the enquiry proceedings have been conducted by the Enquiry Officer. S. Mumtaz Hussain Shah, ex parte and statements of the prosecution witnesses were not recorded on oath and the applicant was not afforded the opportunity to cross-?examine one of the prosecution witness, namely Kamaldin and his statement was also not recorded by the Enquiry Officer. In view of this irregularities in the enquiry proceedings the dismissal order of the applicant will not sustain anti accordingly it is hereby set aside and the respondent is directed to reinstate the applicant in service but since the applicant has succeeded on technical grounds he is not awarded the back benefits. In application also the applicant has not stated that he has remained jobless since the date of his dismissal and on this ground also the back benefits are not awarded to the applicant. A.E./1319/Lb. S ????????? Dismissal order set aside.