1993 PLP 994 (PLC)

‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Domestic enquiry‑‑‑Prosecution has to stand on its own legs ‑‑‑Chowkidar of post office charged for absence from duty for one night‑‑ Plea of Chowkidar that he was on leave proved to be false‑‑‑Mere fact that theft took place during night, held, not sufficient to say that Chowkidar was either absent or that he was not vigilant. Appellant in person. Qamar Riaz Hussain for Respondent. Date of hearing: 30th November 1986. This is an appeal directed against the decision dated 17‑6‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No. 9, Multan, whereby the grievance petition of the appellant for his reinstatement in service was dismissed on the grounds that the appellant was not covered by the definition of workman, that the allegation of absence from duty amounted to misconduct and that by the prosecution evidence the charges had been established.

2. The learned lower Court has not said under which law the appellant was not proved to be a workman. The definition of a workman is given in section 2(xxiii) of the Industrial Relations Ordinance, 1969 and in section 2(i) of the Standing Orders Ordinance, 1968. Chowkidars are not covered by the definition of workman given in the latter law as they do not perform manual duties but they are covered by the definition of workman given in section 2(xxviii) of the Industrial Relations Ordinance, 1969. There are two restrictions in the definition of workman given in the Industrial Relations Ordinance, 1969. One is that the person should not be covered by the definition of employer and the second is that he should not have managerial or supervisory powers and getting pay of more than Rs.800. Obviously, a Chowkidar cannot have supervisory powers as his duty is to guard the premises at night and he has not to supervise the work of any person. Belonging to a menial staff, he cannot be called an employer. So, according to his duties, he is covered by the definition of workman given in the Industrial Relations Ordinance. So far as Standing Orders Ordinance is concerned, if the Post Office, D.G. Khan which admittedly is a department of the Central Government, has its own statutory rules,' the said Ordinance would not apply, but the learned lower Court has not recorded any fording on the point. If Standing Orders Ordinance is not applicable, even then under the rules of the Post Offices and according to the rule of natural justice, holding of inquiry is a must and if by the prosecution evidence produced during the inquiry, a charge is not established, the employee cannot be removed from service.

3. So far as the facts of the case are concerned, no doubt the learned lower Court has remarked that the charge has been established but the evidence has not been discussed. The charge was of absence and if Standing Orders Ordinance is applicable, absence for a single day would not amount to misconduct. The allegation is not that the appellant remained absent for more than ten days or that he was a habitual absentee. So far as negligence is concerned, habitual negligence amounts to misconduct. The learned lower Court has observed that the appellant was guilty of neglect of duty. I am afraid this was not the allegation against the appellant who had to defend himself against the charges which had been actually levelled against him in the charge sheet and not others. So far as the prosecution evidence produced at the inquiry, is concerned, it is self‑contradictory. The statements of PWs. 1 and 2 show that the appellant was not absent from duty. P.W. 1 deposed that on the night of the occurrence at 10 p.m. the appellant had come to his residence and he had advised him to do his duty vigilantly. The witness did not say that leaving his duty the appellant had come to his house. The witness further stated that at 1‑00 a.m. when he came out of his house, he saw the Chowkidar coming out of his quarter and he again asked him to perform his duty vigilantly to which he replied that he should rest assured he was vigilant. The witness did not say that the appellant had left his place of duty. There is no evidence that the quarter of the appellant was situated outside the post office premises, Usually the Chowkidars are accommodated within the compound of the premises to be guarded by them, therefore, in the absence of the evidence that a particular Chowkidar had his quarter away from the place of his duty, the presumption is that he resides within the compound of the place of his duty, P.W. 2 contradicted the statement of P.W. 1 and stated that on the night o1 occurrence the appellant was absent from duty at 9‑00 a.m. P.W. 3 did not say if the appellant was or was not absent from his duty on the night of the occurrence. P.W. 4 deposed that on the night of the occurrence he had seen the appellant at his quarter busy in taking care ‑of his horse and tonga. The witness did not give the time when he had found the appellant present at his quarter. The witness also said that he was sleeping outside the quarter of Mr. Allah Nawaz alongwith the latter's guests. P.W. 5 gave the evidence of the commission of theft but did not say if the appellant was absent or present from the post office on the night of occurrence. He actually stated that when in the morning he went to the post office to clean it, he found the lock broken and theft committed. P.W. 6 did not say anything about the incident but stated that he had checked the appellant twice and once he was found present but for the second time he was absent from duty, whereupon he had verbally advised him to attend his duties, otherwise action would be taken against him. Evidence of P.W.7 does not say anything about the presence or absence of the appellant from the place of his duty. The appellant took up the plea that he had taken leave on account of his illness. No doubt, the appellant took up the plea that he was not present at the time of occurrence and was on leave, but he appears to have taken this plea falsely. The prosecution in such cases has to stand on its own legs. When the case of the prosecution is that the appellant was present but did his duty negligently, it cannot be said that he was absent from duty. The mere fact that theft took place on the night of occurrence is not sufficient to say that either the appellant was absent from duty or that he was not vigilant. Thieves always take the chance when a Chowkidar while petrolling is away from the place from where they have to effect entry into the building for committing theft. Needless to say that a Chowkidar has to make a round and it is not his duty to stand or sit at a particular place throughout the whole period of his duty. The prosecution, therefore, failed to establish the charge.

4. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be reinstated in service. He did not assert in his statement that he from the date of his dismissal had remained jobless. So, he is not entitled to back benefits. A.E./236/Lb.P Appeal accepted.