1998 PLP 46 (PLC)

(d) Industrial Relations Ordinance (XXIII of 1969)

S. 38(3)

Railway Servants (Efficiency and Discipline) Rules, 1961, R.4

Termination of employee's services

Labour Court while re-instating employee had given option to Railway Authorities (appellant) to hold regular inquiry against employee for misconduct

Such inquiry having been conducted in accordance with law, employee was found to be guilty of misconduct

Such decision would be subject to scrutiny before Labour Court and thereafter, before Labour Appellate Tribunal

Court's comments for or against soundness of such order, should not be allowed to influence final verdict to be delivered by Labour Court

At present stage, however, it could not be said that fresh inquiry against employee was precluded or not-- Validity of fresh order would be tested independently when such matter would come to Court. Hafiz Muhammad Saeed for Appellant. Shabbir Ahmad Bhutta for Respondent. Date of hearing: 28th May, 1997. The Divisional Superintendent, Pakistan Railways, Multan has preferred an appeal against the order of reinstatement of Mirza Masood Baig, passed on 27-9-1993 by the learned Punjab Labour Court No. 8, Bahawalpur. Half of the back benefits have also been allowed to the employee, who has laid claim to back benefits in entirety and filed an appeal for the purpose. He has also submitted, under-section 38(5) of the Industrial Relations Ordinance, 1969, a contempt petition against Syed Abdul Razzak Shah, Personnel Officer, Pakistan Railways, Multan Division, with a prayer for intention of penal action against him for not having acted upon the Labour Court's order and taken the employee back in service. I would be dealing with all these three matters by a single judgment.

2. Appointment of Mirza Masood Baig, was made on 21-10-1989 (Exh.P-1); and his services were terminated on 19-3-1990 (Exh.P-5). He served upon his employer grievance notice Exh.P-6, postal receipt being Exh.P-7. The grievance petition, under section 25-A of the Industrial Relations Ordinance, 1969, was filed on 26-10-1991 by Masood Baig against the Divisional Superintendent, Pakistan Railways, Multan.

3. The learned lower Court has treated Mirza Masood Baig as a workman and has declared the order of his dismissal from service as unlawful and inoperative. His appointment had been made on purely temporary and ad hoc basis, and it had been provided in the order Exh.P-1 that such recruitment would not confer on him any right to seek appointment on regular basis or his retention in service beyond a period of six months or till such time he was replaced by a regularly selected candidate. The Court below came to the conclusion that it was an appointment of permanent nature and the services of the employee could not be dispensed with, without observance of the legal formalities, as ordained by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968. He was required to be served with a show-cause notice/charge-sheet and made to face a domestic enquiry, and without following this procedure he could not be removed from service. Objection of the Railways that Mirza Masud Baig was a civil servant, who could not have recourse to the Labour Court, for redressal of his grievance, was overruled.

4. It is, however, to be borne in mind that the documents on record revealed that the appointment had been secured through foul and illegal means, and the Placement Bureau Islamabad had disowned the appointed orders, shown to have been issued by it. Even a criminal case had been registered against Mirza Masud Baig and Bashir Ahmed under section 420/468/471/511, P.P.C., at Railway 'Police Station, Multan, again, in the year 1990, Learned Senior Special Railway Magistrate, Multan tried both the accused persons aforementioned and acquitted them on 7-12-1992 by a judgment,. Exh.P-8. It, however, needs to be clarified that the decision of acquittal had proceeded on a purely technical ground, as in the opinion of the learned Magistrate, the wrongful acts attributed to the two accused persons were independent and they should have been made to face trial separately. It was observed that the defect of misjoinder of offenders could not be rectified, at that late stage, and the provisions of section 249-A, Cr.P.C. were, therefore, invoked by the learned Magistrate in favour of the accused persons, and they were acquitted. It was also opined that there was no evidence available on the file to connect the accused with the preparation of forged documents and to the use of the same as genuine ones. The learned Magistrate appeared to have lost sight of the fact that no one else, but the accused persons who were beneficiaries, were expected or supposed to have manufactured the appointment orders and show them to have emanated from the Placement Bureau, Islamabad. It has rightly been urged by the learned counsel for the Railways that acquittal of the accused on a technical ground did not confer on him a right to remain in service and to retain the appointment procured through fraud, and further that such a grossly misdirected and unlawful act on the part of the employee ought not to have been protected or given a legal cover by a Court of law, in the manner it was done by the learned Labour Court. The forgery, fraud and misrepresentation, employed by the respondent, in getting his appointment, disentitled him to any sympathetic consideration, considered from any angle.

5. Learned lower Court has banked upon surmises and conjectures in affording to the aggrieved person the relief that he had sought. Even the grievance notice, that was issued on 24-9-1991, assailing the termination order dated 18-3-1990, was treated to have been served within time, on a presumption which was far-fetched. Actually, only service of the notice was presumed and no opinion was expressed as regards its issuance within or beyond the prescribed period of limitation.

6. Even if Masood Baig was treated to be a worker, having been performing his duties manually, entitled to invoke the jurisdiction of the Labour Court in the matter, foremost consideration not justifying his retention in service, namely, the alleged misconduct on his part should be accorded foremost consideration by the learned lower Court, while considering soundness of his plea that his services had been terminated illegally or unfairly by the 'Authorities'. He had certainly not come to the Court with clean hands, having obtained appointment in an immoral, irregular and unlawful manner initially, and having been divested of a secured or guaranteed right, if any, to remain in service, in consequence. The documents on record did not leave any doubt about the fact that he had secured the appointment on the strength of a forged document. The learned lower Court had, while conceding relief to the aggrieved employee, held the Railway 'Authorities' entitled to hold a regular enquiry again against the employee, in regard to the instance of commission of misconduct. Such an enquiry is stated to have been held and Mirza Masud Baig has resultantly' been removed from Railway service, by an order passed on 18-8-1996, conveyed to him on 19-8-1996. Enquiry had been conducted by a Committee of Officers, who had held Masood Baig responsible for the foulplay, having obtained the appointment initially without approval of the competent Authority and in disregard of the Service Rules. His defence was rejected as untenable by the authorised officer, whose opinion was approved by the competent Authority. The employee was given personal hearing twice, on 29-7-1995 and 20/21-8-1995.

7. Actually this order will be subject of scrutiny by the learned Labour Court and afterwards by this Tribunal. In a subsequent round of litigation, Mirza Masood Baig states having challenged the fresh order of his removal from service, passed on 18-8-1996, in the competent Labour Court, which will render a decision in due course. My comments for and against the soundness of such an order, therefore, should not be allowed to influence the final verdict to be delivered by the learned Labour Court. It cannot, however, be said, at this stage, in so far as the present case is concerned, that fresh enquiry against the official was precluded, since the learned Presiding Officer of the Labour Court had in his decision dated 27-9-1993 permitted conduct of such an enquiry. Let the learned Labour Court take a decision independently in the matter, as regards the validity of the order dated 18-8-1996.

8. In so far as the impugned decision pronounced by the Labour Court in the present case is concerned, I have no doubt in my mind that if it is permitted to hold the field, it will entail miscarriage of justice, and amount to giving cover to a positive misdeed. I would, therefore set it aside, holding the order dated 18-3-1990, dismissing Mirza Masood, to be perfectly in order. The result is that the appeal filed by the Railways succeeds and the one preferred by the employee fails. The contempt petition also must be treated as abortive. The appeal of the Railways is accepted, and the employee's appeal, as also contempt petition are dismissed, but there shall be no order as to costs, in all the three matters. A.A./894/Lb.P Order accordingly.