1979 PLP 341 (PLC)

This is an appeal against the decision dated 6‑3‑1978 of Punjab Labour Court No. 1, Lahore.

2. Mushtaq Ahmad, appellant was employed as a Fitter in the Lahore Omnibus Service, Badamibagh Depot, Lahore. On 1‑3‑1975 Bus No. LEJ 8267 was brought out of the workshop by the appellant for road‑test. Three other employees namely, Nazir Ahmad, Mechanic, Allah Ditta, Fitter and Bashir Ahmad, Driver were also sitting in the bus. At Baghbanpura the bus collided with a Rehra, which got out of control and killed a child seven years' old by running over him. One Muhammad Anwar, a passer by, lodged the First Information Report at Police Station, Baghbanpura. A case under section 304‑4, P. P. C. was registered against the appellant. Bashir Ahmad Driver made a report to the District Manager of the Badami Bagh Depo about the accident. On receiving the report the District Manager deputed Riaz Ahmad, Assistant Traffic Manager to make an enquiry. He went to the spot at once and after enquiry reported that it was the appellant, who was driving the bus at the time of the accident without authorisation and as such he was responsible for the accident. He advised that disciplinary action be taken against the appellant. The charge‑sheet dated 13‑6‑1975 was, accordingly, served on the appellant, who did not submit any reply. Thereupon, an enquiry was held in which the appellant, in the earlier stages, participated. The Enquiry officer examined Riaz Ahmad, Assistant Traffic Manager, who was not an eye‑witness of the occurrence, and Bashir Ahmad Driver. They were cross‑examined by the appellant. Bashir Ahmad, Driver, in his examination‑in‑chief made the following statements :‑

"My Bus No. 8267 was on docking. Docking was done by the work shop workers. After docking, the bus was taken out for road‑test. At Baghbanpura it struck against a Rehra, which went out of order. The child was ran over by it. The passersby raised alarm and stopped the bus. They stated that they had caused the accident. A dispute arose. He sent a boy to the office to inform about the accident. Our officers came at the spot." In his cross‑examination, however, he stated that it was the appellant who had taken the bus out of the workshop. The appellant refused or give a statement or to produce evidence in his defence before the Enquiry Officer, who after taking ex parte proceedings, found the appellant guilty. Accordingly, second show‑cause notice on 14‑3‑1977 was served upon the appellant, who replied that the charge‑sheet was illegal. He also stated that be was not given a chance to produce defence. On his representa tion the District Manager granted another opportunity to the appellant to produce defence evidence. He, accordingly, asked the Enquiry Officer to finalise the enquiry after recording the defence evidence. The appellant again did not produce any evidence in his defence. The Enquiry Officer, thereupon, finalised his report on 23‑5‑1977 in which he found the appellant guilty. Accordingly, another second show‑cause notice dated 26‑5‑1977 was issued to the appellant who submitted reply on 10‑6‑1977. His reply was found unsatisfactory and. so be was dismissed from service on 25‑7‑1977.

3. The appellant, thereafter, served a grievance notice on 28‑7‑1977 and filed a petition under section 25‑A of Industrial Relations Ordinance, 1969 on 28‑8‑1977 before the Labour Court, which dismissed the same, vide decision in appeal.

4. Aggrieved by the above decision, Mushtaq Ahmad, appellant has preferred this appeal.

5. The learned counsel for the appellant contended that the order of dismissal passed on 25‑7‑1977 was without lawful authority. In this con nection he referred to Standing Order 15(4) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which reads as under :‑

No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged mis conduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent enquiries before dealing with charges against a workman. The underlined portion came into force on 23‑12‑1975 by Labour Laws (Amendment) Ordinance XXVI of 1975. According to the learned counsel, since the order of dismissal was passed after the aforementioned amendment had come into force, the said order of dismissal was illegal because the charge‑sheet had not been served within one month of the date of the misconduct alleged against the appellant. It is no doubt true that prior to 23‑12‑1975, the dismissal order could be made even if the charge sheet was not served within one month of the alleged misconduct, but after the amendment, no order of dismissal could be made unless the charge sheet was served within one month of the date of the alleged misconduct.

6. In the instant case, the alleged misconduct took place on 1‑3‑1975, i.e., prior to the amendment, therefore, at that time, the charge‑sheet which was served on the appellant on 13‑6‑1975, was in order. But from the wording of Standing Order 15(4) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it appears that after the coming into force of the amendment on 23‑12‑1975, no order of dismissal could be made unless the workman concerned was informed in writing of the alleged misconduct within one month of the date of such misconduct. Since the order of dismissal was made on 2 5‑7‑1977, i.e., after 23‑12‑1975, on the basis of the charge‑sheet, which was not served within one month of the date of the misconduct, it was without lawful authority. It is well‑established that when law requires a particular thin to be done in a particular way, the provisions of such law must be complied with. Failure to do so renders proceedings invalid. This is based on the principle that when a Legislature intends a thing to be done m a particular manner, the thing must be done in that and in no other manner.

7. Even on merits, I find that the appellant has a good case. Before the Enquiry Officer only one eye‑witness, i.e., Bashir Ahmad, Driver, was examined in spite of the fact that there were also two other eye‑witnesses, who were travelling in the bus and were available. The solitary eye witness Bashir Ahmad did not implicate the appellant. He did not say that at the time of the accident, the bus was being driven by the appellant. In his examination‑in‑chief he did not mention as to who was driving the bus. In cross‑examination, however, he only stated that the bus was taken out of the workshop by the appellant. This does not mean that at the time of the accident the bus was being driven by the appellant. The evidence of Riaz Ahmad, the other witness examined by the Enquiry Officer, who was not an eye‑witness to the accident, has no value, because it based on hearsay. He, after making enquiry at the place, where the accident took place, came to the conclusion that the bus was being driven by the appellant. No chance was given to the appellant to cross‑examine the witnesses, who had given the impression to Riaz Ahmad that at the time of the accident the bus was being driven by the appellant. Thus, this is a case of no evidence against the appellant.

8. I. accordingly, accept the appeal, set aside the decision of the Labour Court and direct that the appellant be reinstated with back benefits. Appeal accepted.