1988 PLP 60 (PLC)

Date of hearing: 4th May, 1987. This is an appeal filed by the appellant against an impugned order, dated 20‑10‑1984, passed by the Sind Labour Court No.111 Karachi, who had allowed the petition of the respondent.

2. Brief facts of the case are that the respondent was a permanent employee of the appellant Railways and on 15‑5‑1981 he was posted as Luggage Guard of 7‑Up Tezgam train from Karachi to Rohri. That when the said train halted at Hyderabad, the respondent was compelled by the Assistant Station Master to open the Luggage van and allowed baskets of fruit to be loaded, though there was no room in the Van. However, the loading was done in a haphazard manner by damping the baskets over and above the already stocked packages in a manner that they were not countable or Checkable. It was claimed by the respondent that he refused to have the said loaded packages which had to be unloaded, resulting in that 7‑Up Tezgam was detained by extra seven minutes. It was alleged by the respondent by the said fruit merchant that an illegal gratification of Rs.100 was demanded from them by the respondent and on refusal of the fruit merchant to pay such an amount, the loaded packages were ordered to be unloaded. It was claimed by the respondent that, however, he issued a charge sheet on 10‑7‑1981 to which he objected to be a time‑barred. The claim of the respondent was that he was victimized for extraneous reasons. According to the respondent a domestic enquiry was held against him and vide its findings, dated 8‑7‑1982, the increment of the respondent was permanently withheld for a period of one year. The respondent also preferred a departmental appeal which was rejected and thereafter, he submitted a grievance petition before the learned Labour Court, under section 25‑A, I.R.O., 1969.

3. The appellant Railways raised a legal objection submitting that the respondent had no cause of action as no guaranteed or secured right to him been infringed. They further submitted that the stoppage of the increment was a departmental punishment for which a departmental appeal had to be preferred within one month which has not been done in the present case. The appellant Railways further submitted that the respondent was a habitual defaulter having been punished as marry as ten occasions. Lastly it was the case of the appellant Railways that the grievance petition of the respondent was time‑barred.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court had passed the impugned order, hence, the present appeal. Before the present proceedings, a grievance petition of the present respondent was dismissed by the same learned Labour Court on 14‑12‑1985 purely on technical ground, but this order was set aside by this Tribunal on 25‑7‑1984 and the matter was sent back to the Labour Court for decision of the present case on merits.

5. I have heard Mr. Ch. Rasheed Ahmad, the learned Advocate for the appellant Railways and Mr. Ali Amjad, the learned Advocate for the respondent and have also perused the record and proceedings of the case. It is an admitted position on record that the charge‑sheet was issued on 21‑6‑1981 without specific mention of instance of any particular day or date, but, simply on its backside, statement of allegation was written which stated while working as Luggage Guard on 7‑Up on 15‑5‑1981 Ex‑Karachi to Rohri, you allowed loading of 66 baskets of Falsa, booked at Hyderabad to Multan, soon on arrival of the train at Hyderabad, and while the loading was nearing completion, you abruptly ordered unloading of the Falsa baskets for obvious reason which caused 7 minutes unavoidable detention to an important train at Hyderabad on his account. From the perusal of the above contents of the so‑called charge sheet, it is crystal clear that only the train was delayed but there was no specific charge of either demanding illegal gratification of Rs.100 and or compelling the fruit merchant to do so. The so‑called) findings of the alleged enquiry officer against the respondent were quite beyond the scope of the charge‑sheet, hence not sustainable. Further, there is an admitted position on record that the enquiry officer was quite unlawful in examining first to the respondent and did not give a chance to cross‑examine the prosecution witness who, were examined subsequently. It is an admitted legal position that in such circumstances, it cannot be said that either the enquiry was fair or the person accused was found guilty of the alleged misconduct. Hence, the enquiry in the present case is quite perverse, illegal and not maintainable, thus rejected. It is on record of the present case that the respondent was issued charge‑sheet after holding the alleged and so‑called domestic enquiry. Therefore, it is nothing but 'putting a cart before the horse'. Reliance is placed on 1978 P L C at page

452. The concerned enquiry officer was not examined by the appellant Railways before the learned Labour Court, therefore the evidence of other witness cannot be relied upon on this issue. Reliance is also placed on 1981 P L C at page

860. In view of the factual and legal position as well as the irregularities and illegalities committed in the present case, I would hold that the punishment of withholding increment permanently for one year, is quite illegal and improper, hence set aside. Therefore, I see no reason to repel the impugned order which I would maintain.

6. For the reasons stated by me above, I would maintain the impugned order and would dismiss the present appeal. I would award full benefits to the respondent. M.Y.H./1001/Lb.S Appeal dismissed.