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Appeal No. SUK‑260 of 1982, decided on 22nd December, 1982.

(a)

West Pakistan

‑‑ S. O. 15 (4)‑Domestic enquiry‑Statements of accused or witnesses, recording of‑Statements in question and answer form- Not violative of provisions of S. O. 15 (4) or principles of natural justice unless such procedure causing prejudice to accused.

Merck Sharp & Dohme of Pakistan v. Labour Appellate Tribunal 1982 P L C 148 distinguished.

Ghulam Hussain v. N. V. De Meyor Lalzate 1981 P L C 762 rel.

(b)

West Pakistan

--‑‑S. J. 15 (3) (i)‑"Habitual negligence"‑Habit‑To be proved by aggregate facts‑Mere suspicion or complicity in isolated acts would not constitute habit‑Accused a shovel operator charged for negligence in causing fire to shovel resulting in its destruction-Enquiry Committee to its findings holding accused 'guilty of other acts regarding collusion of a dumper and misbehaviour etc. neither referred in charge‑sheet nor any evidence relating thereto led before Enquiry Committee‑Conclusions of Enquiry Committee in support of charge of habitual negligence based upon such extraneous matters, in circumstances, held, not warranted 'and could not form basis of charge of habitual negligence‑Domestic . enquiry on basis of which dismissal from service ordered suffering from serious infir mities and irregularities‑Such infirmities and irregularities, held, would not wash away guilty of accused‑Order of Labour Court awarding re‑instatement upheld by Appellate Tribunal giving option to employer to hold fresh enquiry‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 31.

Shero v. State P L D 1978 Kar. 368 and Islamabad Club v. Punjab Labour Court No. 2 P L D 1980 S C 307 rel.

Muhammad Abdul Ghani for Appellant.

Hasan Hameedi for Respondent.

Date of hearing : 20th November, 1982.

DECISION

This appeal is directed against the decision of the learned VII Labour Court, Sukkur, given on 20th April, 1981, allowing the grievance petition preferred by the respondent challenging his dismissal from service and praying for reinstatement in service with back benefits.

The admitted facts of the case, shortly stated, are that on 29th May; 1981, while the respondent was operating the appellant's Diesel Shovel, UH‑20, near the quarry of the appellants at Rohr, it caught tire and was completely destroyed. A show‑cause notice, dated 28th June, 1981, in respect of this incident was served upon the respondent, which reads as follows :‑

Mr. Ali Goher, Heavy Equipment Operator, Quarry Department Rohri Cement Works.

Sub: Show‑cause notice.

On 29th May, 1081, while you were on duty in the 1lnd Shift and were operating the Diesel Shovel UH‑20, this machine caught fire at about 2.45 p. m. and was completely gutted. A preliminary enquiry was immediately ordered which reveals that prima facie, this incident happened due to your acts of gross negligence and wilful damage/loss to the Organization's property. It also came out in this preliminary enquiry that you are in the habit of performing your duties in a highly negligent and careless manner. We may mention here that apart from the heavy finan cial loss of about 20 lacs of Rupees on account of the cost of the machinery, the organization is daily sustaining substantial produ ction loss. Your aforemention(ed) acts amount to misconduct as contemplated by sections 15(3) (c) and 15(3) (i) of the Standing Orders Ordinance, 1968 (us amended) up‑to‑date.

You are, therefore, called upon to explain in writing within 3 days of the receipt of this letter as to why strict disciplinary action should not be taken against you, failing which the matter will be decided ex parte.

GENERAL MANAGER,

ROHRI CEMENT WORKS."

The respondent claims that he submitted a reply to the show‑cause notice but the reply is not on‑ the record of ‑charges learned Labour Court. A domestic enquiry in respect of the above charges was held against the respondent by an Enquiry Committee of two officers of the appel lants, Ch. Fakir Muhammad and Muhammad Jamil. The Enquiry Committee examined in all 26 witnesses including four witnesses cited by the respondent. In the domestic enquiry the respondent was assisted by a co‑worker, Riazuddin. The Enquiry Committee also put a number of‑ questions to the respondent despite the fact that' he submitted an application to the effect that his statement in the earlier (preliminary) enquiry had been recorded and he had nothing to add to that statement. The Enquiry Committee, in its report. dated 18th August, 1981, held that the incident of the destruction of the diesel shovel occurred mainly due to the negligence of the respondent. The Enquiry ' Committee, in its report, also referred to an incident. which is said to have occurred on 2nd July, 1976, in which the respondent, while driving a dumper is alleged to have had a head on collision with another dumper, in support of its finding of negligence of the respondent in the performance of his duties, particularly in operating dumpers and shovels. The Com mittee also found the following incidences of misconduct committed by the respondent though no reference to such misconduct was made in the show‑cause notice served upon the respondent nor is there anything in the enquiry proceedings to indicate that the evidence of. such mis conduct was led before the Enquiry Committee: ‑

"(1) Riotous behaviour of slapping a person in the face on 15th September, 1975.

(2) Filling Woollen (wooden) crates in his dumper and taking them out with the intention of pilferage on 19th January, 1977."

On the basis of the Enquiry Committee's report a second show cause notice, dated 5th September, 1981, was served upon the respon dent, to which he submitted a lengthy reply, dated 8th September, 1981 denying the allegations/charges levelled against him, asserting that the machine was defective and he as well as other operators of the machine had submitted several reports to this effect to the authorities, accusing the Enquiry Committee of partisanship and prejudice against him and contending that the enquiry proceedings suffer from grave irregularities.

The explanation of the respondent to the second show‑cause notice did not find favour with the Management and he was dismissed from service by order, dated 30th September, 1981.

The learned Labour Court has allowed the grievance petition of the respondent on the grounds that none of the witnesses examined by the Enquiry Officer/Committee have stated that the respondent was negligent and caused wilful damage to the property. that from the statement of Munnu Khan, Sardar, Daud and Masud Ahmed it appears that the diesel shovel was defective for which the operators had made complaints to the authorities several times but it was not repaired, that from the cross‑examination of the witness of the appellants (Lai Khan) it appears that he deliberately suppressed the facts which were known to him long ago regarding the' defects in the diesel shovel and that the Enquiry Committee had not recorded the statements of 13 witnesses but they were put searching questions to implicate the respon dent. The learned Labour Court unfortunately has not discussed or referred to the evidence in support of the above grounds except that it has reproduced a part of the statement of Muhammad Yasin, who had operated the diesel shovel in question on the same day in the earlier shift, made before the Enquiry Committee.

‑ Mr. Mahmood Abdul Ghani, the learned counsel for the appellants assailed the decision of the learned Labour Court on the two‑fold grounds :‑

(i) that the there examination in question and answer form of some of the witnesses by the Enquiry Committee does not vitiate the enquiry proceedings; and

(ii) that there is tangible evidence on record to establish that the respondent was negligent in operating the diesel shovel and in consequence of his negligence huge loss was caused to the appellants.

In support of his first contention the learned counsel relied upon the decision of Karachi High Court in the case reported as Merck Sharp and Dohme of Pakistan v. Labour Appellate Tribunal (1982 P L C 148) and the decision of this Tribunal in the cases of Ghulam Hussain v. N. V. De Meyor Lalzate (1981 P L C 762) and National Bank of Pakistan v. Farooq Ahrnad Memon (Appeal No. HYD ‑ 39/82), decided on.21st October, 1982. The decision of the High Court in the case of Merck Sharp and Dohme does not deal with the issue whether examination of a witness by the Enquiry Officer in question and answer from invalidates the enquiry proceedings and hence is not relevant for the purposes of this issue. However, the above two decisions of this Tribunal appear to support the contention of the learned counsel. In the case of Ghulam Hussain it was held by this Tribunal that as no specific procedure is prescribed for the examination of witnesses in a domestic enquiry, any reasonable procedure which does not cause prejudice to the person being proceeded against in his defence, would be permissible. In the case of the National Bank of Pakistan it was observed by this Tribunal that the recording of the statements of witnesses, including the employee who is being proceeded against in question and answer form in a domestic enquiry would not he viola tive of the provisions of clause (4) of Standing Order 15 or of the A principles of natural justice unless it can be shown that the procedure adopted has caused prejudice to the employee being proceeded against.

In support of his second contention that there is tangible evidence on record to establish the misconduct of the respondent, Mr. Mahmood Ghani relied upon the admission of the respondent himself before the Enquiry Committee that when he started the diesel shovel for operating it the oil pressure gauge on the operator's side was near the danger point, and the statement before the Enquiry Committee of Munnu Khan, Supervisor, who was present when the diesel shovel caught fire.

Mr. Mahmood Abdul Ghani, however, submitted that in case any irregularity or illegality in the domestic enquiry proceeding is found, which in the opinion of this Tribunal vitiates the said proceedings, the appellants should be given an opportunity of holding a fresh enquiry against the respondent for a mere error, however, serious, in the enquiry proceedings does not wash away the misconduct of the offending work man or exonerate him from liability for any misconduct which he .a,1 have committed.

On the other hand, Mr. Hasan Hameedi, the learned counsel for the respondent, strongly supported the decision of the learned Labour Court and submitted that no negligence in operating the diesel show was established against the respondent and that the cause of the diesel shovel catching fire and destruction was the fact that it was seriously defective and the defects in the shovel were repeatedly pointed out to the workshop not only by the respondent but the other operators also.

In my opinion the domestic enquiry proceedings suffer from a number of serious defects. In the first place though the charges against the respondent as communicated to him on the show‑cause notice, were that he was grossly negligent in operating the diesel shovel on 29th May, 1981, that due to his negligence the shovel caught fire and was completely gutted and that further he (the respondent) was in the habit of performing the duties in a highly negligent and careless manner, the Enquiry Committee, as already indicated, have also held the respondent guilty of the following acts, constituting misconduct, which were neither referred to in the charge‑sheet served upon the respondent nor was any other notice in respect of them given to the respondent :‑

(i) That when the respondent was a dumper driver and was driving a dumper on 2nd July, 1976, he had a head on colli sion with another dumper ;

(ii) riotous behaviour of slapping a person in the face on 15th September, 1975, and

(iii) filing wooden crates in his dumper and taking them out with the intention of pilferage on 19th January, 1977.

Not only no reference to the aforesaid three acts of alleged mis conduct on the part of the respondent has been made in the charge sheet served upon him, but further there appears to have been no evidence led before the Enquiry Committee to establish these acts of misconduct. It appears from the report of the Enquiry Committee that finding regarding the respondent being responsible for a head on collision on 2nd July, 1976 was based on the records in the personal file of the respondent. However, neither the records nor the personal file of the respondent was produced before the learned Labour Court or made a part of the enquiry proceedings. Moreover, since the afore said acts are said to have been committed by the ' respondent in the years 1975, 1976 and 1977 and there is no evidence that the said acts. were brought to the notice of the respondent within one month of their commission or at any rate within one month of their coming to the notice of the appellants, as required by clause (4) of Standing Order 15, the said acts could not be .made the basis, by themselves or in conjunction with other acts, of dismissal from service of the respondent.

Although the respondent was charge‑sheeted for habitual negligence in the performance of his duties and this charge according to the Enquiry Committee was established against him there was no tangible evidence before the Enquiry Committee to establish this charge. In the case reported as Shero v. State (P L D 1978 Kar.368), a learned Single Judge of the Karachi High Court has construed the words "habit" and "habitual" as implying a tendency or capacity resulting from the repetition of the same acts, frequent indulgence in such acts, and moreover evidence of the com mission by the person concerned of a number of similar acts, for habit has to be proved by aggregate facts and mere suspicion or complicity in isolated acts would not constitute habit. In the instant case, apart from the incident of 29th May, 1981, in which the diesel shovel, which was being operated by the respondent, was burnt down, the only other act of negligence alleged against the respondent is that o 2nd July, 1976 the dumper which he was driving had a head o collision with another dumper. Now apart from the fact that the said collision took place some five years prior to the burning down of the diesel shovel, there is no evidence on record to establish that the collision of the dumper in 1976 was due to the negligence of the‑ respondent or even that such a collision in fact took place.

It may further be pointed out that according to the report of the Enquiry Committee before the respondent started operating the diesel shovel on 29th May, 1981, greaser Chuttal was operating the shovel with the consent and in the presence of the respondent, and as the said Chuttal was not an operator and was neither qualified nor authorised to operate the diesel shovel, the shovel must have got overheated and it was in this condition that the respondent operated the shovel. There is, however, no evidence on record in support of this finding or inference. Neither Chuttal stated before the Enquiry Com mittee that he at any time was operating the diesel shovel nor did Munnu Khan, who was present during the operation of the diesel shovel, so state. The finding or more correctly the assumption of the Enquiry Committee that Chuttal had been operating the diesel shovel is not warranted on the evidence on record.

As the domestic enquiry on the basis of which the respondent has been dismissed from service suffers from serious infirmities and irregularities, the dismissal order cannot be sustained. However, these infirmities and irregularities would not wash away the guilt of the respondent or absolve him from responsibility. for the burning of the diesel shovel if he was negligent in operating the same. I would, accor dingly, following the principal laid down by their Lordships of the Supreme Court to the case reported as Islamabad Club v. Punjab Labour Court No. 2 (1) while concurring in the decision of the learned Labour C Court re‑instating the respondent in service, would give an option to the appellants to hold a fresh enquiry against the respondent within a period of three months from the date of this order and would make the award of back benefits to the respondent dependent on the result of such enquiry. If no fresh enquiry is held against the respondent within the said period of three months the respondent would be entitled to back benefits.

Order accordingly.

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