2003 PLP 324 (PLC)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 10-5-2001 passed by the Punjab Service Tribunal, Lahore, in a service appeal.

2. The relevant facts giving rise to this petition are that petitioner, an employee of Directorate of Poultry Research Institute, Rawalpindi, was proceeded against under Punjab Civil Servants (E&D) Rules, 1999 for the following charges:-- "As per para. 3 of his representation dated 16-9-1999 filed before NIRC, Islamabad, he has stated that he took Mr. Farhat Iqbal, Assistant, PRI, Rawalpindi into confidence and discussed with him regarding formation of Trade Union while sitting in the Canteen. Whereas Mr. Farhat Iqbal, Assistant, furnished an affidavit dated 20-9-1999 that nothing was discussed with him by the appellant about formation of Trade Union. Thus, he made false statement and committed misconduct."

3. The Inquiry Officer on conclusion of inquiry, found the petitioner guilty of the charges and the competent authority in the light of recommendations of Inquiry Officer imposed upon him the penalty of one step reduction in pay scale. The petitioner on dismissal of the departmental appeal filed a service appeal before the Punjab Service Tribunal, Lahore, but remained unsuccessful.

4. Learned counsel for the petitioner contended that the respondents being annoyed with the petitioner for his approaching NIRC for redressal of his grievance relating to his transfer from Rawalpindi to Attock, initiated disciplinary action against him under Punjab Civil Servants (E&D) Rules, 1999. The learned counsel submitted that plea of unfair labour practice taken by him in support of the petition before NIRC did not find favour to the Member NIRC who dismissed the same with the observation that it was an administrative matter and not a case of unfair labour practice. Learned counsel argued that the consultation of the petitioner with his colleagues about the formation of trade union was not an act of misconduct and further his failure to establish the plea of unfair labor tr practice before the NIRC would not bring the matter within the ambit of misconduct. The learned counsel for the respondents-caveators, on the other hand, has submitted that the petitioner by making a false statement in the judicial proceedings acted in a manner prejudicial to the good order and service discipline and, therefore, has committed gross misconduct. Learned counsel, however, conceded that Farhat Iqbal, Assistant, neither made an oral statement before NIRC in affirmation nor he was examined by Inquiry Officer to ascertain the correctness of the affidavit.

5. The petitioner was charge-sheeted for committing an act of misconduct in terms of rule 2(e) of Punjab Civil Servants (E&D) Rules, 1999. The "misconduct" has been defined in the above said rules as under:-- 'misconduct' means conduct prejudicial to good order or service discipline or contrary to the Punjab Government Servants (Conduct) Rules, 1966 or conduct unbecoming of an officer and a gentleman and includes any act on the part of a civil servant to bring or attempt to bring political, or directly or indirectly to bear on the Governor, the Chief Minister, a Minister, or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other condition of service of a civil servant."

6. The conversation between the petitioner and Farhat Iqbal, if any, relating to the formation of trade union in the department being their private matter, would neither be objectionable nor it was an act falling in the definition of misconduct. The failure of petitioner to establish the ground of unfair labour practice taken by him in support of his application before the NIRC would not be a valid ground to charge him for making a false statement in the judicial proceedings unless he would have been found guilty of such an act by the concerned judicial authority The petitioner having the bona fide impression that he was transferred from Rawalpindi to Attock for his activities of forming trade union approached NIRC and his failure in proving the said plea would not be termed as 'misconduct' as defined in section 2(e) of Punjab Civil Servants (E&D) Rules, 1999.

7. The competent authority while raising a presumption on the basis of affidavit given by Farhat Iqbal in rebuttal to the statement of facts made by the petitioner in his application before NIRC, held the petitioner guilty or misconduct without ascertaining the correctness of the affidavit in question. The non-recording of statement of Farhat Iqbal by the Inquiry Officer would amount to deprive the petitioner from fair chance of defence. The correctness or otherwise of affidavit was not ascertained either in the judicial proceedings in the NIRC nor by the Inquiry Officer to be used as an evidence in proof of the charge which remained unproved.

8. For the foregoing reasons, we while converting this petition into an appeal, set aside the impugned judgment of Service Tribunal and allow the appeal with no order as to costs. M.H./D-31/S Appeal allowed.