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Case No. 18 (44) of 1981, decided on 2nd December, 1981.

‑‑ S. O. 15(2)‑Misconduct‑Punishment‑Quantum of‑‑Establish ment covered by Pakistan Essential Services (Maintenance) Act, 1952‑Security sergeant charged for misbehaving with superior officer during duty hours‑Charge established in impartial and fair inquiry‑Punishment of dismissal awarded‑Punishment of dis missal, held, quite harsh for disorderly behaviour particularly when accused had not committed any other misconduct‑Re instatement with full back benefits directed ‑ Management, however, held, not debarred to inflict any other prescribed punishment‑Pakistan Essential Services (Maintenance) Act (LIII of 1952), S. 6.

Ayub Shah for Petitioner.

Raja A. Rasheed for Respondents.

Durr Khan has submitted this petition under section 6 of the ,Pakistan Essential Services (Maintenance) Act, '1952 against the Deputy Agent and the Chief of Security, Indus River Contractors Limited, Tar bela Dam for re‑instatement in service. The petitioner was employed by the company on 12th September, 1980 on the post of Security Sergeant with higher grade of pay. On 2nd March, 1981, the services of the petitioner were terminated on the charge of misconduct. It has been submitted that he was not given chance to clear his position before the Management which was illegal and beyond the natural justice. The peti tioner was served with a show‑cause notice dated 1st February, 1981 and suspended from duty. He submitted his explanation which was rejected by the Chief of Security and an enquiry was ordered. The enquiry was conducted and the petitioner requested the Agent to issue orders for appearance of the Chief of Security as he had signed the said show‑cause notice but the Management refused to accept the request and as such the petitioner was not afforded any opportunity to cross examine the main witness who had charge‑sheeted the petitioner on mala ,fide grounds. It has been alleged that the Enquiry Officer after going through the statement did not decide the case impartially. It has been submitted that on receipt of the second show‑cause notice signed by the Chief of Security the peti tioner submitted his reply but it was not considered and the petitioner was dismissed. He was asked by the respondent No. 1 to take force reduction which proved that respondents Nos. 1 and 2 had made up their mind to get rid of the petitioner. The petitioner has been victimised and illegally dismissed without personal hearing and without affording any chance to question or cross examine the dismissing authority and that orders be issued to re‑instate the petitioner with full back benefits.

2. The respondents who were required to submit para‑wise com ments submitted that the petitioner had failed to serve the grievance notice on the employer and as such the petition was not maintainable. He was Security Sergeant and in view of his status he was disentitled from invoking the jurisdiction of NIRC under section 6 of the Essential Services (Maintenance) Act, 1952. The petition was also not maintainable in view of a Division Bench judgment of the Peshawar High Court in case titled as Mazhar Ali Rajput v. IRC. The petitioner was found guilty of mis conduct and after an independent enquiry his services were terminated with reasonable excuse.

3. According to the respondents the petitioner was hired as Security Sergeant and was given 4 advance raises. On 28th January, 1981 the Assistant Security Officer Mr. Janas Khan issued a notice wherein it was mentioned that duty roster of Security personnels for the period 1st February. 1981 to 15th February, 1981 for Dhal Sector will be prepared by the petitioner to be signed by ASO night shift on 29th January, 1981 and after approval by the respondent No. 2 typed on 30th January, 1981 for it to be made effective on Ist February, 1981. The petitioner without authorisation made a change in the duty roster whereby he changed the duty of a Security Guard, Barkat Shah from Sub‑Sector No. 3 to Sector No. 1 although he had been posted in Sub‑Sector No. 3 from sub‑Sector No. 1. The above change made by the petitioner was not accepted by the authorities approving the duty roster and the Security Guard Barkat Shah was posted in sub‑Sector No. 3 when the final duty roster was pre pared and typed on 30th January, 1981. In order to pressurise the ASO Mr. Janas Khan to accept his change in the posting of Security Guard the petitioner entered into the office of ASO on 30th January, 1981 at about 1730 hours and misbehaved, insulted and abused him. He moved forward to attack the ASO but he was restrained with effort by the other Security Guards present there in the office. The petitioner had no excuse to interfere in the sub‑Sector of another Security Guard and his staff.

4. The petitioner was given a show‑cause notice for disorderly behaviour during working hours at the establishment. His explanation was found unsatisfactory and the appointing authority decided to hold an enquiry into the allegations of which the petitioner was given full opportunity to defend himself which he availed. The right of cross -examination was fully exercised by the petitioner in his defence. He also led evidence in his defence. The enquiry officer found him guilty of the charge and he was given a second show‑cause notice long with enquiry report. The explanation of the petitioner to the second show‑cause notice was not found satisfactory and the appointing authority after going through the evidence recorded in the presence of the petitioner concurred with the findings of the Enquiry Officer and ordered the dismissal of the petitioner.

5. It has further been submitted that the petitioner availed full opportunity in the enquiry proceedings and not only cross‑examined the witnesses in support of the allegations but also produced defence wit nesses. The petitioner did submit an application to the agent to ask the respondent No. 2 to appear in the enquiry proceedings in support of the allegations so that the petitioner could cross‑examine him. The request of the petitioner was neither legal nor justified as respondent No. 2 was not an eye‑witness to the act of misconduct committed by the petitioner nor his name was cited as witness. The enquiry officer conducted the enquiry impartially which is evident from the record that the petitioner as well as his representative never objected to the impartiality of the enquiry officer at any stage of the enquiry. The offer of force reduction was made out of grace and compassion as it would have enabled the peti tioner to receive full terminal benefits as well as a certificate of service. It was submitted that the personal hearing was neither a statutory require ment nor any principle of natural justice.

6. I have gone through the enquiry report and find that Mr. Shahzad Khan, Pir Muhammad Head Custodian and Hayat Muhammad L. D. Driver corroborated the statement of Mr. Janas Khan and confirm ed that Mr. Durr Khan misbehaved with Mr. Janas Khan and said "I am your father" and, that Mr. Durr Khan moved forward to attack Mr. Janas Khan but before he could do so he was caught by Mr. Shahzad Khan and was taken out of office. The defence evidence in support of the allegations had established that Mr. Durr Khan was present in the office of Mr. Janas Khan and misbehaved with him. The Security Guard Barkat Shah deposed that Mr. Durr Khan asked Mr. Janas Khan to listen to.his request and that Mr. Janas Khan asked him as to who he was. Mr. Durr Khan then asked him "you do not recognise me as to who am I". He then further deposed that Shahzad Khan, Pir Muhammad and Hayat were there and they took Mr. Durr Khan out of the office. He submitted that no fighting took place between Mr. Janas Khan and Mr. Durr Khan.

7. Under Standing Orders 15(2) of the West Pakistan Industrial and Commercial Employment (Standing orders) Ordinance 1968 a working found guilty of misconduct shall be liable to any of the following punishments :‑

(i) Fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), upto three paisa, in the rupee of the wages payable to him in a month ;

(ii) withholding of increment or promotion for a specified period not exceeding one year;

(iii) reduction to a lower post ; or

(iv) dismissal without payment of any compensation in lieu of notice.

The Management has chosen to inflict the extreme punishment of dismissal from service on the petitioner. This I feel is quite harsh for disorderly behaviour during working hours particularly when the petitioner bad not committed any other misconduct.

8. I, therefore, direct that petitioner be reinstated in service with full back benefits. This will however not debar the respondent to inflict any other punishment as given in Standing Order 15(2) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968. .

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