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Appeal No. HYD‑775 of 1980, heard on 23rd February, 1981.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑ S. O. 15 (4)‑Domestic enquiry‑Enquiry officer‑‑ Appointment by person witnessing alleged misconduct‑Improper.

Bus Conductor charged for misconduct of not issuing tickets after having realised fair from passengers. Enquiry Officer appointed by District Manager of Transport Corporation who had witnessed the alleged incident. There were three District Managers involved in the proceedings against the accused (1) who issued the charge‑sheet; (2) who appointed the Enquiry Officer, and (3) who issued termina tion order based upon findings of enquiry. Grievance petition of accused was accepted by Labour Court setting aside impugned termination order on sole ground that Enquiry Officer ' was appointed by District Manager who had himself witnessed the alleged incident. Decision of Labour Court was upheld in appeal by Labour Appellate Tribunal.

Clause (4) of Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 requires that no order of dismissal shall be issued in respect of a workman unless the employer has instituted independent enquiries against the workman. No doubt, in the instant case, the respondent was not dismissed from service but since his services were terminated on the charge of misconduct, the procedure laid down in Standing Order 15 has to be followed, as provided in clause (5) of Standing Order 12. Where a witness to the act of misconduct appoints the Enquiry Officer, such appointment would at least be improper, as Enquiry Officer tray be considered as a nominee of the witness. Such an irregularity could per haps be over‑looked where either there is on other authority competent to appoint the Enquiry Officer or the Enquiry Officer is really an indepen dent person, and not a subordinate of the person appointed by him. In the instant case, there were 2 other District Managers who were com petent to appoint the Enquiry Officer. Furthermore, it was frankly con ceded that the Enquiry Officer, was a subordinate of the District Manager who had appointed him. The principle of natural justice that no person shall be Judge in his own cause would thus appear to be attracted in the circumstances of the case.

Mian Muhammad Mushtaq for Appellant.

Sheikh Bux for Respondent.

Date of hearing : 23rd February, 1981,

By an order, dated 21st January, 1980, the services of the respon dent, who was employed as a Bus Conductor in the appellant‑Corporation were terminated on the charge that he had not issued tickets to certain passengers on 4th March, 1979 who were found travelling in the bus of which he was the Conductor, though he had realized fare from them. The respondent challenged the orders of termination of his services before the learned VIth Labour Court, which has set aside the said orders and directed his re‑instatement in service with back benefits:

2. The sole ground upon‑which the decision of the learned Labour Court is founded is that the Enquiry Officer was appointed by District Manager Urz Mohammad Abro, who had himself witnessed the incident relating to the misconduct of the respondent. Aggrieved by this decision the appellant. Corporation has come up in appeal to this Tribunal. It was conceded by Mr. Mian Mohammad Mushtaq, the learned counsel for the appellant Corporation, that 3 District Managers were involved in the proceedings against the respondent. They are (1) Murad Sheikh,, who issued the charge‑sheet to the respondent, (2) Urz Mohammad Abro, who appointed the Enquiry Officer, and (3) Syed Niaz Mohammad Shah, who issued the orders for the termination of service of the respondent. Clause (4) of Standing Order 15 requires that no order of dismissal shall be issued in respect of a workman unless the employee has instituted independent enquiries against the workman. No doubt, in the instant case, the respondent was not dismissed from service but since his services were terminated on the charge of misconduct, the pro cedure laid down in Standing Order 15 has to be followed, as provided in clause (5) of Standing Order 12. Where a witness to the act of misconduct appoints the Enquiry Officer, such appointment would at least be improper, as Enquiry Officer may be considered as a nominee o the witness. Such an irregularity could perhaps be overlooked where either there is no other authority competent to appoint the Enquiry Officer or the enquiry officer is really an independent person and not subordinate of the person appointed by him. In the instant case, as already pointed out, there were ' 2 other District Managers who were competent to appoint the Enquiry Officer. Furthermore, it was frankly conceded Mr. Mian Muhammad Mushtaq that the Enquiry Officer, Salahuddin Fazlani, was a sub-ordinate Urz Muhammad Abro who had appointed him. The principle of natural justice that no person shall be Judge in his own cause would thus appear to be attracted in the circumst ances of the case. However, while the domestic enquiry held by Salahuddin Fulani would appear to be at least improper and possibly invalid, as also the superstructure based on the said enquiry including the order of termination of services of the respondent, since this would not wash away the charges alleged against the respondent and the same could even now be enquired into in accordance with law, an option has to be given to the appellant‑Corporation to hold a fresh enquiry in accordance with law against the respondent, Furthermore, the award of back benefits to the respondent should depend upon the result of such an enquiry, for if the charges against the respondent are established in a fair domestic enquiry, the respondent obviously would be disentitled to award of back benefits.

3. In the result, while upholding the order of the learned Labour Court for the re‑instatement of the respondent, I would give an option to the appellant‑Corporation to hold a fresh enquiry in accordance with law against the respondent and would make the award of back ‑ benefits to him dependent upon the holding of such an enquiry. In case the appellant‑Corporation does not hold any enquiry against the respondent within 3 months from the date of this order, it would be construed that the appellant‑Corporation has waived its right to hold such enquiry, and in that case, respondent would be entitled to full back benefits.

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