1988 PLP 433 (PLC)

(2) To go into the niceties, of the finding and to find out whether there has been departure from following certain legal requirements for the enquiry, to be completed in all respects, the Court first will refer prominently certain relevant extracts of the evidence of Mr. Mustafa and the witnesses of the respondent namely Mr. Akhtar Hussain, Mr. Akbar Jan and Mr. Muhammad Iqbal who is the Assistant Manager in the Security Department. (3) The evidence of Mr. Mustafa is as under: 'I received the notice of show cause dated 30‑10‑1984. I was called by the G.M. for personal hearing dated 3‑1‑1985,A/8. I was again called for personal hearing dated 20‑1‑1985, Exbt:A/2. I was again called dated 24‑1‑1985 for personal hearing Exbt: A/4. I do not know whether I received letter from the management or appointing Enquiry Officer. I can read English. I received the letter, dated 13‑2‑1985 from Enquiry Officer A/5 and

6. I do not remember if I received a notice of enquiry. I see letter written by me regarding domestic enquiry Exbt:A/8. I do not know if I received the memo. I attended the enquiry on 14‑3‑1985 and the statement o Akhtar Hussain was recorded in my presence. After that date I was called but evidence was not recorded. It is not a fact that I was given notice on several occasions but refused to accept. I see the address on the envelopes. It is not my address. My address is on the identity card Exhs.13 and 14.' It is at this stage the witness was put specific question. 'Did he receive the notice' the answer is what the Court has remarked, he avoids. It is not a fact that I ha received the letter from retired Military Officer Shafat Ali dated 8‑9‑1985, 17‑9‑1985. It is not correct that notice of enquiry dated 15‑8‑1985 was given to me or I refused. I produce the overtime claim form. I see the second signature on the form. It is not mine. When I was given the first charge‑sheet which was the subject‑matter of the proceedings I was Security Guard at that relevant time."

4. What Mr. Akhtar Hussain has said who is the Junior Officer in the Administration Cell of Safety: "In para.4 of his statement, he has said that his statement was recorded on 14‑3‑1985 and also cross‑examined when on 17‑4‑1985 he and Akbar Jan were present applicant did not turn up. The Enquiry Officer waited for one hour and proceeded ex parte. He has also admitted that he appeared as complain; before Enquiry Officer with Akbar Jan who was also the complainant. When he saw the entries in the overtime claim, in red line, he called Akbar Jan to explain about the entry of 5th August he verified the overtime of 5th and found there was no such overtime. He has further disclosed that when Akbar Jan was asked about the temperance with the record. he fixed the responsibility on Mustafa Khan that this was his handwriting. On the next day when the witness was called, he produced the attendance register of August 1984 R/l and not produced the register of September 1984. The witness further has explained confidently that the tampering was done by Muhammad Mustafa. He made the false claim of the overtime of 5th August. He was further shown the attendance register of 14th August, 1984 and replied that Raj Mir was absent on 5th August and another Security Guard Yasin Abbasi was present. The witness again confronted with the entry of 5th August what he says. From 5th August to 7th August, the entry shows that Raj Mir Khan was on leave. He is not in position to say whether Mr. Mustafa was directed by the Senior Security Guard to do the work.. At the same time the witness has saidthat Mustafa was directed to work at the 'A' shift. He madethe tampering in the record and showed him in 'C' team instead of 'A' team. The witness further repeats that he used to come and sign in 'C' team. He did not do work in 'A' team. The witness also further explains that this register was sent to the GM Security. He was shown working in 'C' team after tampering. I see this complaint R/2. I do not know anything about this complaint." 5.The evidence of Akbar Khan is also important. The relevant extracts are these: In the enquiry proceedings and Mr. Akhtar Hussain were present on 7‑4‑1985. Mr. Mustafa was absent. The Enquiry Officer retired Major General Muhammad Shah waited for long time. Applicant did not turn up. The witness further states that on 5th August he was on general duty. Haji Nawaz Senior Security Assistant was on duty in 'B' shift. It is not correct Ha# Nawaz had fixed the duty. We prepared the schedule of duty one day before. Applicant struck off his name and changed the shift from 'A' to 'C' and came on 2‑9‑1984 at 'A' shift. I do not remember when I marked his absence. I gave my report to Executive Engineer Mr. Akhtar Qureshi and Mr. Abdul Sattar Qaimkhani. The report was in writing. I do not know that Mustafa was or leave on 1‑9‑1984 and 2‑9‑1984. I produce leave advise RW/1. I see the complaint R/2. I have never seen before. I appeared before Col: Afzal in connection with the complaint. I had given one report of the change made in the overtime and in the attendance register. Applicant did not comb up to 8th September, 1984. I also sent the report in writing regarding absence (complaint has not come on the record).

6. It is significant to mention here that leave advise RW/1 has been disputed but it is signed by Mr. Akhtar Qureshi who is a Junior Officer Administration (AFFS). This document in particular shows the designation of applicant as the Guard. Hg is the same Akhtar who has been examined in this Court. No such question has been put to him for the absence of leave and in connection with this document which is being produced as RW/1 and disputed.

7. The last evidence is of Muhammad Iqbal Deputy Manager of Security Department. He has referred to the enquiry proceedings. He is not in position to say when Muhammad Mustafa Was dismissed. He has shown the envelope which is dated 16‑4‑1986 but cannot say what were the contents. He has supported the written statement and the affidavit and also given the opinion that the outward number on the envelope and the Annexure‑B is the same.

8. Mr. Mansoor Alam counsel for the respondent has taken the legal objection that Mr. Mustafa, firstly is not the workman but Security Guard and therefore he is not governed by the provisions of Standing Orders Ordinance or to challenge under the proceedings of the I.R.O. He has not reconciled with what the applicant has contended that he is Laboratory Assistant.

9. Before Court discusses this objection the Court has seen number of documents, one is the reply of the notice of show cause which goes in the volumes accusing number of officers Mr. Abdul Sattar Khan, Mr. Mehady Ali Manager Mr. Akhtar Qureshi and above all the direct rivalry against Junior Security Assistant that he was being protected by these officers.

10. In view of the confusion of dates, in number of documents produced on the record as exhibits the dates are relevant what Mr. Mustafa has said first. His explanation is very simple that he did two times overtime in the place of Mr. Raj Mir Security Guard and second on 14th August. He filled the A roll form and gave to Mr. Naqvi clerk. On 31‑8‑1984 he filled the claim form and kept in the register for the signature and onward despatch to the administration. On 3‑9‑1984 when he came from 'C' team for night duty on 4‑9‑1984, he being free came to the office of administration and found that attendance report has gone with the overtime on 3‑9_1984 but his overtime form was not sent. When he enquired from Junior Assistant he told him to deposit in the month of October. Subsequently he was told that the signatures were wrong.

11. This is his version.

12. What Mr. Akhtar Hussain has said in Annexure‑A/11. He says that "Security Guard Muhammad Mustafa in the month of September deposited overtime claim form of 5‑8‑1984 and 14‑8‑1984 which claim form was in the red ink and it was a new thing. He called Akbar Jan who explained that he has not filled the form and the overtime claim of 5th August is wrong and it is not his signature. He was further put under oral investigation as to the seal of Akbar Jan. He revealed that due to the loss of key and possibly this seal has been used. He asked him to give the report in writing".

13. Third document which has come in the Court Exbt:R/2 which is the complaint made by Mustafa to Deputy Manager the witness Akhtar Qureshi has shown ignorance but the contents show that in duty 'B' team Mr. Mazhar Khan was not present on the duty. Mustafa further explains that in the shift 'B' which started at 6.30 Mazhar Khan was not there when 'A' shift came he found that Mazhar Khan was present in place of Security Guard Shahdever Khan but the signature of Shahdever Khan was already there on 30‑8‑1984 and 31‑8‑1984. His duty was being done by Mazhar Khan.

14. Last document which has engaged the Court's interest is RW/1. This is signed by Akbar Jan. Akbar Jan has said that he has changed the schedule from 'C' team by placing Muhammad Mustafa in place of Shahdever Khan. When he came on the duty on the second day he found that Mr. Muhammad Mustafa changed the entire schedule with a red pencil and made his own schedule.

15. This is also significant feature of the case that when the court has looked into the reply of the charge‑sheet Mr. Mustafa has shown his presence on 3rd and 4th to enquire from the administration but what Mr. Akbar Jan has said in the evidence is another matter of interest. What he says that the applicant (Muhammad Mustafa) did not come in any shift upto 8th September, 1984 which version is correct, the Court has to see other circumstances whether he is a man to be believed or Akbar Jan and then to decide who has committed forgery and why Mr. Muhammad Mustafa hesitated to appear before the highest Military Officer who was also the Enquiry Officer to put up his version. He has also to convince the Court whether his evidence should be accepted on the point of the view of the judicial standard that what he has said is also true when the circumstances strongly speak against him also that he was called by the highest Military Officer who was the General Manager of the complex for personal hearing but he took no notice of such requisition before his officer.

16. The evidence of Mr. Mustafa, further can be taken rather with extreme caution that his demeanour, under the assessment of his evidence, rather speaks of his very little responsibility to discharge on oath. What has found favourable to him he has answered and / what has been found adverse against him, he has avoided to answer, for example to say, I do not know, I do not remember. This reflects his state of mind of which the Court has remarked on his demeanour which is indeed significant that in the administration of justice, if he avoids to give answer his evidence is taken with extreme caution of his other version.

17. The Court also refers Annexure‑A/3 to show that Mr. Mustafa adopted highly arrogant and insolant attitude to meet his officer in connection with the hearing. The words underlined in that para shows 1 that he has refused to meet the G.M. Security. This was also insubordination of the highest kind and much can be said that what the Enquiry Officer has said that he was given the fair opportunity to put up his version what he has said in reply to the show cause he felt to meet with those allegations in the enquiry purposely. What Mr. Akbar Khan has revealed before Akhtar Qureshi that this was not the signature of Akbar Jan but of Muhammad Mustafa on document Exbt.A/24 which is said to be incriminating that he showed two days of overtime when he had done over time only once, the Court has further examined the circumstances whether Mr. Mustafa committed forgery. Indeed the only evidence against him is that of Akbar Jan who said with confidence that this was the signature of Mustafa by immitation of the signature of Akbar Jan. The court has further seen that if Mr. Mustafa was on leave for one day vide Exbt.RW/1, and according to Mr. Akbar Jan he was absent to September 8th. Mr. Mustafa himself has said that he came on 4th and on 3rd on duty to enquire from administration, it becomes a matter of proof whether the forgery was committed before 1st. The evidence of Mustafa is not consistent with the evidence of Mr. Akbar Jan regarding his presence when Akbar Jan says that he was absent upto 8th. The forgery being a technical offence requires the evidence of the unchallenging proof that what the person did with the highest in genuinity, in the first place was seen by the person that he was actually doing so. Secondly the comparison of writing is another mode of proof, for the C Court is of the opinion that mere circumstances cannot take the place of proof or from the gossping in the forum of humours, what to call hearsay evidence. There remains only the evidence of remote nature Akbar Jan whose evidence the Court has also regarded to be taken with extreme caution. It may be contended that in the domestic forum the deeper analysis may not be there of the forgery. But there much be evidence of highly credible nature for the Court to base the finding that it was N1r. Mustafa who committed forgery or someone else to bring him down before the Administration Officer.

18. However, the background of his evidence and his conduct in not appearing before the Enquiry Officer and to put up his version before the Enquiry Officer when he had the opportunity given by v the Enquiry Officer, by the G.M. Security must can be written about his insubordination, disobedience, his way of giving answers in the Court with arrogance, the Court is of the finding that he purposely did not attend before the Enquiry Officer lest may be exposed. It is also equitable view that he who seeks equity must come with clean conduct.

19. It is also taken as an argument that his position was that of Security Guard. The Court has seen the leave which he had applied for, his designation is shown as Security Guard. His own reply to the show‑cause notice is also shown as Security Guard. He has admitted in the evidence that he was a Security Guard at the relevant time. His security duties included to check the locks and other miscellaneous duties connected with the security.

20. If his position was that of Security Guard at that time when the cause of action arose and he has produced no document that he was Laboratory Assistant, his position being of Security Guard not doing clerical or manual work but of the security nature, he has nol jurisdiction to come under section 25‑A but if the Court still proceeds further that he has come for the redress of the grievance assuming as the Laboratory Assistant, the Court is of the view that once he was given the opportunity most sincerely and in the honest spirit his conduct is responsible by his own refusal to meet with the allegations or even to meet or have the audience before the G.M. Security who was the Officer of the highest rank. The Court will also' examine his conduct in the context of the discipline of one worker against the administration in such a manner it will be difficult to maintain discipline or to make the enquiry officer comfortable. He was given the opportunity, he appeared but deliberately avoided to face the enquiry, thereby all the notions of the justice were fully satisfied. The applicant cannot come and contend that again the matter be remanded.

21. In the result the Court is of the opinion that he has no jurisdiction, even to come under section 25‑A for the redress of the 1 grievance whey, he is not the worker according to the concept of the definition given in the I.R.O. or even the Standing Orders Ordinance.

22. However, the Court further wishes to clarify certain point raised by Wasti who has presented his point of view on the legal application, firstly to the concept of Security Guard

23. He has also referred number of judicial precedents (P L D 1987 Karachi page 175, 1985 P L C 722, 1985 P L C 854 and 1987 PLC 472).

24. Mr. Anwar Wasti has shown that the name and designation is not relevant. It is the nature of duty which is to be seen. He has" gone even further to show that applicant is laboratory assistant.

25. In the first place, the facts of each case are different. In view of the legal principle involved, the Court has examined the evidence and to see what the substantial part of duties brought Mr, Mustafa within the definition of a workman. In the case cited the duties included opening of gates, physical search of trucks, counting of bags, checking quality of the rice and conducting search of a person.

26. In another case the Court also respectfully refers the observations of his lordship on page 1985 P L C 854.

27. It was observed that chowkidars who do the duty of watch and ward, are not workmen. Their duty is only to remain present and guard the premises. But the gate man of the factories if he opens and closes and searches the employees and other persons they do manual work.

28. So, each case, therefore, is examined in light of the evidence. In a case of this nature throughout he has been shown as Security Guard. Even the leave he has applied for he is shown as a Security Guard on the 1st of September, 1984. Likewise what is the quality of evidence, if only by casual observation it has come that his security duty included to check the lock and other miscellaneous duties, nothing more than that to describe with prescision what duties he did and he had to explain in the petition of grievance or in the evidence it cannot be said that his substantial duty was of the nature more than the security involving the manual work beyond his nature of functions of the watch and ward, as described in the cited case. In that cited case the substantial duties were of different kinds, practically substantial of manual nature than security. In the facts therefore there is a distinction

29. Mr. Wasti has raised another question of importance that he is a laboratory assistant. In the first place there is no evidence. But if it is accepted subsection (4) of Standing Order 15 puss the time limitation of one month from the date of misconduct. If the misconduct has taken place within the proximity of 30th August before Mr. Mustafa proceeded on leave, the cause of action of misconduct arose at that relevant time His grievance therefore is to be seen from that date on the first when he had applied for leave he was Security Guard and so also he has mentioned in the reply of his charge‑sheet Annexure‑C.

30. Mr. Anwar Wasti has also further touched this aspect that applicant was on medical leave on 1st and 2nd of September and on 3rd and 4th for the rest as marked on the attendance sheet of 1st September to 10th September.

31. Mr. Anwar Wasti perhaps through over sight has not gone through the reply of the charge‑sheet of Annexure‑C by Mr. Mustafa in his own handwriting. The Court has underlined where he has said that on 3rd of September after discharge from IC' team and on 4‑9‑1989 being free contacted the administration. This shows that he was actively present. Another fact which has come is underlined, he has said that he did overtime twice in August but overtime document where there has been immitatipn of the signature of Akbar Jan on Exbt.A/24 he has denied. It is disputed that he did only one overtime and there has been tampering with the record. The Court has also further referred RW/2 where certain writings have been shown of his own. But the Court as abundant precaution has not given the definite finding of forgery within the proximity of the time of 31st August or one day after.

32. Despite that observation with serious disputed facts of both the evidence of Akbar Jan and Mr. Mustafa and Mr. Mustafa's attitude, the question that has been considered by the Court is that if he had the opportunity to put up his case before the Enquiry Officer why he purposely remained absent after partly evidence was recorded. His attitude of refusal to meet the G.M. was another obstruction to the domestic forum where he was fully aware of the enquiry proceedings' by his presence on duty. He has avoided to give certain answers, regarding his ignorance about communication of information of the recording of evidence. In the opinion of the Court if the employee works in the mill, even oral information of the employer is sufficient. It will be otherwise going into the absurdities of technicalities. If the Enquiry Officer conducted the proceedings in honest spirit, the notions of the requirement of justice are fully complied with. One cannot come and say that there should be fresh enquiry when his own attitude was responsible. He had the full freedom to vindicate his position in view of what the Court has examined his own inconsistency of his absences on 3rd and 4th October. The Court has also further looked into the enquiry report and found that the Administration Officer Mr. Akhtar also was very fair to him after interrogating Akbar Jan and after inspecting the register which was tampered on the disputed entry on 1‑9‑1984, the real knowledge of K the forgery or tampering came to his notice from that day and therefore the charge‑sheet was perfectly within time on 30‑10‑1984. The Court agrees with Mr. Anwar Wasti that exact date cannot be ascertained when the forgery was committed which normally nobody forgerer or the forgerer will commit such act of commission in the presence. But the proximity of the time is evident from th Ie circumstances and further reflected in the finding of the Enquiry Officer who was officer of the highest rank of army. 33.Regarding the question of dismissal General Manager Security has signed the dismissal order. Mr. Mansoor Alam has also referred to the delegation of powers to show that every General Manager of the complex was competent to sign dismissal order in a heavy complex like Steel Mill.

34. In the result, the Court is of the opinion, firstly that discipline is the most important attribute in the employment of the service.' Secondly, the discipline revolves every human activity in life. In the3 facts of this case if he is a Security Guard and not a workman he, cannot assume jurisdiction to come under section 25‑A, I.R.0. Secondly he was given the opportunity to put up his defence before the domestic' forum. With all the freedom he remained absent purposely in disregard of the directions of the General Manager and before the Enquiry Officer, by which he obstructed the enquiry instead of meeting with the challenge, in view of his own inconsistencies raising the inference' only to prolong and to subvert the course of justice.

35. The impugned order fulfils all the requirements of the enquiry!, before domestic forum and the application is dismissed. Referred PLC 1982 page 591 and 1981 P L C page

635. M.Y.H./985/Lb.S Petition dismissed.