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Petition No., 504-P of 1976, decided on 15th April 1976.

---S. 34-Forfeiture of pay during suspension period-Sanitary Ins pector's version being use of harsh words by petitioner sweeper amount ing to indiscipline and petitioner's witnesses stating harsh words having been used by Sanitary Inspector and his also having slapped peti tioner--Not clear, in circumstances, as to which of two parties gave provocation-Stand taken by petitioner before Sanitary Inspector being correct, probable in circumstances for Sanitary Inspector to have given provocation and used some language resulting in petitioner's remark that his conduct was of a tyrannical nature-Evidence on record, held, did not prove any misconduct against petitioner and finding of Inquiry Officer not based on clear evidence and perverse-- Petition accepted and forfeited wages ordered to be paid to petitioner.

Petitioner in person.

Respondent in person.

The petitioner, Noor Masih Shah is employed as Sweeper in the Municipal Committee, Kamalia. He remained under suspension for eight months. On 20-11-75 he was re-instated but his pay for suspension period was forfeited as punishment, He challenged this order in a petition filed under section 25-A of the Industrial Relations Ordinance, 1969.

2. The facts of the case are these. On 2(1-3-1975, the petitioner obtained the leave and went to Vehari. His uncle died there on the next day. He bad to attend his funeral. He sent a telegram from Vehari to the Adminis trator, Municipal Committee for granting him leave for 21-3-1975. He resum ed duty on 22-3-75. His immediate officers were Jamadar, and the Sanitary Inspector. The telegram had not reached them because it was addressed to the Administrator. They thought that the petitioner remained absent for 21-3-75. Accordingly a notice was issued by the Sanitary Inspector calling upon the petitioner to explain his absence from duty. The notice was received by the petitioner on 21-3-75 in the evening when he came back from Vehari. On the next day he appeared before the Sanitary Inspector in his office. He informed the Sanitary Inspector that he had sent a telegram about his leave and so why a notice had been served on him. The Sanitary Inspector informed him that he should furnish his explanation in writing. On 24-3-1975 the Sanitary Inspector made a report to the Administrator that the petitioner had misbehaved and he was guilty of misconduct. On 29-3-1975 the Jamadar reported that the work of the petitioner was unsatisfactory and he should be marked absent for the said date. In view of this report a charge sheet was framed. The following two charges were levelled against the petitioner.

(1) That he insulted the Sanitary Inspector on 22-3-75 in his office in the persence of vaccinators, peons and drivers and it amounted to misconduct.

(2) that his work was unsatisfactory on 29-3-75 and the residents of his locality had complaints against him.

3. During the inquiry the petitioner submitted an application of the residents of his locality where they have stated that work of the petitioner was satisfactory on 29-3-75. During the inquiry witnesses on both the sides were examined. All the witnesses of the prosecution stated that the petitioner had entered into the office of Sanitary Inspector and told that he had applied for leave by a telegram and so no notice should have been served upon him for absence of duty, that the Sanitary Inspector answered that the should give in writing his explanation but the petitioner uttered the following words:-

"You are a tyrant and you are holding a rod of tyranny."

4. On behalf of the petitioner some sweepers appeared as witnesses. They said that the Sanitary Inspector was rude. He gave abuses and he gave slap at the face of the petitioner. The Inquiry Officer held that the petitioner was not guilty for the second charge because he attended to his duty and the residents had no complaint against him. On Vie first charge the Inquiry Officer was also not very sure. He held that the petitioner had actually applied for leave of 21-3-75 because his uncle had died and he was justified to tell the Sanitary Inspector that the notice issued to him was wrong. He found that the Sanitary Inspector did not slap at the face of the petitioner. However, on the misconduct of the petitioner he observed as under:-

"Although Noor Masih used improper words on account of being truthful but be must care for the respect of his superiors and it was his duty to explain his position while remaining within the scope of official decorum. He is therefore, partially guilty."

5. File of the inquiry has been placed before me as Exh. P. I and all the facts mentioned above have been taken from the same file. On the merits of the case d am satisfied that the petitioner was not guilty of any misconduct. Firstly, it is not proved which of the two versions was correct. Definitely both the parties have one version. The version of the Sanitary Inspector was that the petitioner had used harsh words and they amounted to indiscipline. On the other hand the witnesses of the petitioner said that the harsh words were used by the Sanitary Inspector. He also gave a slap at the face of the petitioner. It is not clear as to which of the two parties gave provocation. It is an admitted fact that the stand taken by the petitioner before the Sanitary Inspector was correct. The probabilities are that the Sanitary Inspector his given provocation and must have used some language on account of his status that the petitioner had to tell him that his conduct was of tyrannical nature. My finding is that the evidence on record does not prove any misconduct against the petitioner the finding of the Inquiry Officer is not based on clear evidence and is perverse.

6. For the above reasons the petition is accepted and the respondent is directed to pay the wages which had been forfeited as a measure of punishment.

Note:--The file of the Municipal Committee shall be returned after the period of appeal if any.

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