2016 PLP (C (PLC(CS))

MOHAMMAD SHAFI SIDDIQUI, J.

In this suit No.739 of 2016 plaintiffs have challenged the show-cause notices issued to them individually. While the suit was pending, plaintiffs Nos.1 and 2 also received notices of personal hearing as the authority claimed to have dispensed with the holding of an inquiry in relation to charges levelled against them as they claimed to have sufficient evidence. Mr. Muhammad Ali Lakhani, learned counsel for the plaintiffs, submitted that he has filed five fresh suits bearing Nos.808 to 812 of 2016 on fresh cause of action of issuing notice of hearing after dispensing the inquiry as mentioned above. They also claimed to have challenged the vires of Regulations, 1985. He submitted that since cause to challenge such notices and Regulations accrued subsequently, he may be permitted to withdraw the earlier suit as subsequent suit is comprehensive and include all reliefs including those claimed in earlier suit. He claimed that subsequent suits based on facts of each individuals so that it may not overlap facts of others and be proceeded accordingly. Hence permission was sought to withdraw earlier suit. He added that such defect could only be cured if plaintiffs are allowed to withdraw earlier suit with permission to proceed with their subsequent individual suits. The plaintiffs have filed the earlier suit substantially challenging the show-cause notices dated 22.03.2016 being violative of Rule 78(1) of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations (hereinafter referred to as PIAC Regulations) and against fundamental rights of the plaintiffs as guaranteed under the Constitution. They have further sought declaration to the effect that they have not committed any misconduct in pursuance of the PIAC Regulations of the defendant. In this suit ad-interim/injunctive order was passed in terms whereof the plaintiffs were directed to appear in pursuance of the notices of personal hearing and it was clarified that any decision in the absence of inquiry as required in terms of Rule 79(2) of PIAC Regulations be kept in abeyance. Now, these plaintiffs have filed their individual suits with a fresh cause that on 28.03.2016 two of the plaintiffs i.e. Safdar Anjum and Nasrullah Khan, plaintiffs Nos.1 and 2 in earlier suit, were issued a personal hearing notice wherein it is alleged that owing to sufficient evidence available to substantiate the charges leveled against them, the competent authority of the defendant has dispensed with the need to conduct a formal inquiry. From perusal of the pleadings in both the suits, the plaintiffs Nos.1 and 2 intend to exercise their right of filing yet another suit based on fresh cause of action whereby the notice of personal hearing was issued. There are some additional causes available to plaintiffs to initiate subsequent proceedings in the shape of suits now placed before me. Since the object is implementation of Regulations 78 and 79 of PIAC Regulations, the plaintiffs seek outright withdrawal of earlier suit subject to the condition that appropriate proceedings be initiated and the injunctive order be passed in subsequent suits. Mr. Salman Talibuddin, learned counsel for the defendant, though formally claimed copy of plaint, pleadings, annexures and the applications, however on realization that only Regulations 78 and 79 of PIAC Rules are to be interpreted being question of law, he raised no grievance if the application in the subsequent suits are disposed of after hearing the parties and in consideration of the material placed on record of this earlier Suit No.739/2016 the defendant as a reply/counter-affidavit. Hence, by consent the Suit bearing No.739 of 2016 is dismissed as withdrawn with the observation that their independent cases now placed, before me shall be dealt with accordingly. The injunction applications filed in the fresh suits were thus argued by the learned counsel on the strength of material available on record of Suit No.739 of 2016 and pleadings of subsequent suits. As I have observed earlier the plaintiffs are seeking the implementation of Regulations 78 and 79 of the PIAC Regulations, it is plaintiffs' case, as argued by learned counsel for the plaintiffs, that under no stretch of imagination such inquiry could be dispensed with even if they (defendants) have sufficient evidence or material before them which they consider and have reasons to believe that it is sufficient to dispense with the holding of inquiry. Learned counsel for the plaintiffs submitted that it shall only be done once the plaintiffs are provided with such evidence/material so that they may have a right to confront/challenge such material and assertion of the defendants. He submitted that in watsapp messages or recorded speech/conversation as heavily relied upon could not constitute sufficient material for dispensing with the necessity of holding an inquiry in relation to charges leveled against the plaintiffs. Learned counsel submitted that the notice of personal hearing was given only to plaintiffs Safdar Anjum and Nasrullah Khan who have filed Suits Nos.808 and 809 of 2016. In rest of three cases it is claimed that no further proceedings have been initiated pursuant to the reply to the show-cause notices. He added that controversial questions of facts could only be resolved after full inquiry and adopting the process. Mere issuance of show-cause notice and hearing is not sufficient. He submitted that Appellate Bench of Federal Shariat Court has declared all provisions of law denying an inquiry to be ultra vires. As against this, learned counsel for defendant has attempted to demonstrate by playing the alleged audio recording of the plaintiffs that it constitutes sufficient material to instigate other employees of PIA to get involved in the strike/stoppage of flights operation and routine work. He submitted that the audio statement incited and instigated the employees, which in the opinion of the competent authority i.e. Director HR Admin and Coordination, was sufficient to dispense with inquiry. Counsel further submitted that it is the judgment and wisdom of the officer concerned to dispense with the inquiry and no other modus operandi could then provide, an alternate mechanism in that regard otherwise entire mechanism of PIAC Regulations shall come to a halt. Learned counsel submitted that the plaintiffs have every right to pursue their remedy in case the decision of the authority goes against them pursuant to the proceedings of show-cause notice and/or hearing notice. Counsel submitted that such appropriate remedy of appeal is available in terms of Regulation 86 of PIAC Regulations. I have heard the learned counsel for the parties on injunction applications filed in the fresh suits pleadings and perused the material available on record of Suit No.739 of 2016 as agreed. There are two regulations which require interpretation in relation to different situation. Regulation 78 relates to a disciplinary action and the procedure which is followed by an inquiry to be conducted by competent authority provided that if the accused makes admission of the allegations leveled against him/her, the requirement of initiating inquiry against him/her shall be dispensed with and the authority may on the basis of such admission pass such order as it may deem fit in the circumstances of the case. In terms of Regulation 79 the competent authority is equipped with the tool of dispensing inquiry in certain cases which include: (a) certain facts which were established in Court of law; (b) where an employee has absconded or where it is for any other reason may impracticable to communicate with him/her; (c) where the employee is caught in the course of commission of wrongful act or circumstances pertaining to the wrongful act are so manifest that the compliance with the procedure in Regulation 78 would be a purposeless formality. In such cases it was left to the competent authority to take an explanation of the accused, where possible, and after giving him/her an opportunity of being heard in person impose such penalty as it deem fit in the circumstances of the case. Initially the order dispensing with holding of inquiry was not placed on record however subsequently with counter-affidavit, the defendant placed a notification of 01.02.2016 in terms whereof the services of PIA were made essential under Pakistan Essential Services (Amendment) Act, 1952 (Act LIII of 1952). They have further placed the order in relation to the two plaintiffs i.e. Safdar Anjum and Nasrullah Khan, which apparently was passed by Director HR Admin and Coordination. This objection of plaintiffs that the competent authority i.e. Director HR Admin has not dispensed with the inquiry, is not available to the plaintiffs now. In terms of letter issued by Acting General Manager dated 28.03.2016 the order was only communicated to these plaintiffs. This original letter/ order passed by Director HR Admin and Coordination, though placed on record, but its substance was neither forwarded to the plaintiffs as they claimed to have no information/ knowledge as to the material available in this regard nor had any other source. The show-cause notice is comparatively silent as to the nature of material and information claimed to be in their custody and possession. All that was forwarded to the plaintiffs was a letter dated 28.03.2016 which shows that the authority has dispensed with the need to conduct a formal inquiry. A perusal of letter impugned in the suit and sought to be suspended in application C.M.A. 5058 of 2016 shows that it is devoid of judicious application of mind to dispense with the inquiry. In my view if anyone in the authority concerned has prematurely conceived to the proposition that he/she can dispense with holding of an inquiry without sharing it with accused/plaintiffs, he/she is rendering himself/herself an unfit person to conduct further proceedings of personal hearing. Such dispensation order could only be passed and should only be passed once the material is shown and shared with the accused whose reply and response could become a basis of such decision of dispensing with the inquiry. Any authority or person giving personal hearing should not rely on personal knowledge and information as in that case the essence of impartiality will be lost. When such audio was played in Court my first reaction and question was "who is he". The person recorded the conversation could be a material witness but without he being confronted with accused it cannot be used as an evidence against him, who may or may not have a valid and legitimate answer to deny such material. Mr. Salman Talibuddin also conceded that in case the accused provides valid and reasonable cause at the time of hearing, the inquiry process may be initiated despite it being dispensed with earlier. To me this amounts to putting cart before horse. By this observation it does not mean and rather should not mean that the competent authority is not competent to dispense with the inquiry if facts and circumstances of the case so warrants. The authority should not sit with the prejudiced mind that they have already dispensed with the inquiry and have made their mind. This statement of Mr. Salman Talibuddin, learned counsel for defendant, to me is a surprising factor. Since the defendants/competent authority is not sure as to the dispensation of the inquiry on the basis of material available with them then how a substantial right of inquiry could be snatched from the plaintiffs without hearing them and how a person with pre-conceived thoughts sit to preside. The defendant could only reach to such conclusion once they themselves are satisfied and convinced that the explanation/material forwarded to the plaintiffs in relation to the allegations is the substantial evidence available with the authority. The "material" could only form "substantial evidence" provided it is shared with the accused/plaintiffs and based on such reply an order is passed with reasoning. In view of these facts and circumstances, I do not find the two notices available with C.M.A. No. 5058 of 2016 to have met the above requirement which have also been impugned in subsequent Suits Nos.808 and 809 of 2016 as they have already dispensed with the inquiry before hearing the plaintiffs. The impugned show-cause notice of hearing is also bad in law since they have kept the material of show-cause notices and substantial order and reasoning of dispensing the inquiry with them and only a notice of information that such inquiry was dispensed with was forwarded to the plaintiffs whereas Regulation 79(2) requires that for the reasons to be recorded in writing the competent authority may dispense with the holding of inquiry. This could only be done after hearing. In order to seek some assistance this issue came up before a number of benches who dealt with issue accordingly. I feel necessity of discussing all these relevant judgments since concrete and expeditious follow up in resolving the dispute that presently exist between the plaintiffs and defendant is required. The first judgment which decides somehow the same controversy is in the case of Nighat Yasmin v. Pakistan International Airline reported in 2004 SCMR 1820. It provides that the Regulations framed in the year 1985 by the Board of Directors of the Corporation are of binding nature which could not be arbitrarily deviated nor the same could be unilaterally violated for being in the nature of a contract. The other judgment passed by the Hon'ble Supreme Court is in the case of Ghulam Muhammad Khan v. Prime Minister of Pakistan reported in 1996 SCMR

802. It highlights the issue of Rules 5 and 6 of Government Servants (Efficiency and Discipline) Rules, 1973. In this case the charges of misconduct were not admitted by a civil servant. It was a case where the evidence of charges against the civil servant were of such nature on which finding of fact could not have been recorded by inquiry officer without recording evidence in support of the charges levelled against the employee which also include the implied right of civil servant to cross-examine the witnesses or any material which might have been produced in support of those charges. In the above referred case the civil servant was being thrown out of service permanently by imposing major penalty of compulsory retirement. The Services Tribunal has ignored such fact and considered it as an irregularity which was set aside by the Hon'ble Supreme Court. In the case of Basharat Ali v. Director Excise and Taxation Lahore reported in 1997 SCMR 1543 the Hon'ble Supreme Court while hearing the case of misconduct observed that if the allegations against accused/ civil servant/employee are of serious nature and if such allegations are denied, a regular inquiry cannot be dispensed with. The Hon'ble Supreme Court further hold on to observe that initial burden in such a case is on the department to prove the charges, which cannot be done without producing evidence. The Hon'ble Supreme Court further held that the question as to whether a regular inquiry is to be held in a case of misconduct against an accused/civil servant/employee or not will depend on the facts of each case. In the case of Kashif Anwar v. Aga Khan University reported in 2013 YLR 2294, learned Single Judge of this Court observed that it is an axiomatic principle of evidentiary law stemming from the "best evidence rule" and the "rule against hearsay" that the documents can, ordinarily, be produced in evidence by their maker, and in case of tape-recordings, this principle has been interpreted to mean that tapes can be admitted in evidence, if they are produced by the person, who has recorded the tapes, and the said person is in a position to identify the voice on the tapes. It was further observed that even in the best circumstances, Courts have been cautious in admitting tape-record on the ground that it is too unreliable and too prone to tampering. The essential prerequisites for the admissibility of tape-recording as evidence are that accuracy of the recording has to be proved, the voice recorded properly identified the court must consider the genuineness of the tape before it is accepted, and must guard itself against all possible tampering and manufacturing, and should also look for independent corroboration and intrinsic evidence before it relies on the tape. The voice of the person alleged to be speaking must be duly identified by the matter of the record or by others who know it. Accuracy of what was actually recorded has to be proved by the maker of the record and satisfactory evidence direct or circumstantial has to be there so as to rule out possibilities of tampering with the record, eliminating erasing of the recorded tape. The court must be satisfied beyond reasonable that the record has not been tampered with. The voice must be compared with that of concerned person. In the case of River Steam Navigation Co. Limited v. A.B.S. Choudhury and others reported in PLD 1958 SC (Pak.) 418 the Hon'ble Supreme Court found itself in agreement with the observation in Punjab National Bank's Case (1952)

2. Labour Law Journal Page 658 that strike may be illegal on account of contravention of Section 22 or 23 of Industrial Disputes Act, though it may be perfectly justified or a strike though illegal by reason of these provisions may be the result of provocation on the part of the employer or such a strike may last for a very short time. Modern concepts of social justice would be outraged if in such cases the employer could dismiss a workman fore his mere absence due to his participation in such a strike. It may be observed that no one should decide cases on the basis of their personal knowledge as in that case he becomes party to the proceedings. The competent authority under the law should sit with judicious mind and impartially listens to the defence and response of the accused/plaintiffs. Only by adopting such principle the justice will appear to have been done and in the case they decide the issues on the basis of their personal knowledge, hearsay the justice would seem to have been lost or at least not appears to have been done. Insofar as other application under section 94, C.P.C. in terms whereof the plaintiffs have prayed that their salaries and other benefits may not be discontinued by the defendant is concerned, I am of the view that so long plaintiffs continue as employees, they are entitled for all such benefits as they were receiving earlier. In view of the above, I would dispose of all other applications with the direction as under:- (i) That all those officers and/or authority who have dispensed with holding of inquiry against the accused persons/plaintiffs have rendered themselves as unfit persons to take any further steps in hearing/proceeding the matters in relation to the disciplinary proceedings against the plaintiffs; (ii) That all those/plaintiffs against whom the defendant has raised allegations of misconduct and some disciplinary proceedings were initiated, shall be provided with all such material available with the defendant which it feel is sufficient to dispense with holding of inquiry against them. A reasonable opportunity shall be provided to them, which may not in any case exceed one week for filing reply thereto by the accused/plaintiffs which shall be considered at the time of hearing for passing appropriate orders in terms of Regulation 79 of PIAC Regulations. (iii) In case the defendant Corporation decides to proceed under Regulation 79, it share such material before making any decision in relation to the inquiry, the decision to such reply in shape of either holding of an inquiry or dispensing with it be provided to plaintiff and the entire process be completed preferably within four weeks; (iv) In case of a decision (final decision) against plaintiffs/accused they would be at liberty to avail their remedy available under Rule 86 of PIAC Rules. (v) Salaries and other benefits of the plaintiffs may not be discontinued by the defendant till such time they continue to be employees of the defendants. Application stands disposed of. ZC/M-81/Sindh Order accordingly.