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Appeal No. HYD‑630 of 198,2, heard on 3rd May, 1983.

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

‑‑ S: O. 15 (3) and Railway Servants (Efficiency and Discipline) Rules, 1975, r. 5 (3)‑Misconduct‑Temporary short absence from duty‑Does not amount to misconduct‑Railway servant (Cabinman) temporarily absenting from duty on pretext of answering the call of nature‑Penalty of stoppage of increment for one year imposed Such penalty, held, by Labour Court as invalid and unjustified because allegation did not amount to misconduct under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑On appeal before Labour Appellate Tribunal plea raised that action was taken under Railway Servants (Efficiency and Discipline) Rules, 1975‑Such plea, held, could not be allowed to be raised for first time at appellate stage‑Record indicating that neither any inquiry conducted nor any formal order passed by Authorised Officer to dispense with enquiry as per requirement of r. 5 (3) of said rules‑Appeal, in circumstances, held, without merits hence dismissed‑Industrial Relations Ordinance (XXIII of 1969),

Ahsan Ahmad v. Ministry of Finance 1982 P L C 692 rel.

Iqbal Jafry for Appellant.

S. Yawar Hussain for Respondent.

Date of hearing : 3rd May, 1983.

The sole issue which falls to be considered in this appeal by the Railway administration is whether the act of the respondent, who at the relevant time was employed as a Cabinman, constitutes misconduct for which the punishment of withholding of an increment for one year could be imposed on him either under the Standing Orders or under any other law. It is an admitted position that on Ist July, 1981, the respondent was employed as a Cabinman at the East Cabin, Hyderabad of the Pakistan Railways. There was also another Cabinman along with the respondent. On the same date, at about 4.00 a. m., derailment of Railway wagons took place. The respondent was found to be absent at the time of derailment though the other Cabinman were present. The explana tion of the respondent for his absence at the time of derailment was that he had gone to answer the call of nature and had informed his co‑worker of the same as he could not contact the Assistant Station Master Incharge. The view taken by the Railway administration was that the absence of the respondent without permission constituted negligence on his part and accor dingly a notice of punishment dated 27th November, 1981, imposing on him the penalty of stoppage of increment for one year, was served on him. The respondent preferred a grievance petition against the imposition. of the said penalty to the learned Labour Court which has held that such a penalty could only be imposed on the respondent for an act which constitutes misconduct for the purpose of Standing Order 15, but as the temporary absence of the respondent on the relevant date does not fall within the ambit of misconduct under the said Standing Order, the imposition of penalty of stoppage of increment for one year by the Railway administration was unjustified and invalid. 1t has accordingly set aside the said order. Aggrieved by this decision the Railway administration has come up in appeal to this Tribunal. ‑

2. It was frankly and fairly conceded by Mr. Iqbal Jafry, the learned counsel for the Railway administration that a temporary absence of the respondent at the relevant time does not strictly constitute an act of mis conduct as specified in clause (3) of Standing Order 15. He, however, sought to argue that the said act of ‑the respondent constitutes misconduct as defined in the Railway Servants (Efficiency & Discipline) Rules, 1975, and that the respondent has been punished in accordance with the provi sions of the said Rules. The Rules in question are applicable to every person to whom the Pakistan Railway Establishment Code applies except the person who is a Civil Servant within the meaning of the Civil Servants Act, 1973. The respondent prima facie does not appear to be a Civil Servant and hence it would appear that the said Rules are applicable to him. However, neither the notice imposing the penalty on the respondent specifies that the action taken against him is in accordance with the said Rules nor a plea has been raised before the learned Labour Court that the action has been taken against the respondent in accordance with the said Rules. Since this plea was not raised before the learned Labour Court, the Railway administration cannot be allowed to take .up this plea for the first time before this Tribunal in an appeal, specially as the respondent does not have the opportunity of refuting the contention of the Railway administration that action was taken against him under the Efficiency and Discipline Rules or alternatively that the procedure laid down in the said Rules was adopted. It is an admitted position that no enquiry was held against the respondent before the penalty was imposed. Sub‑rule (3) of rule 5 of the Efficiency and Discipline Rules empowers the authorized officer to dispense with the holding of an enquiry, but as pointed out by the Federal Service Tribunal in the case reported as Ahsan Ahmad v. Ministry of Finance (

), the authorized officer is enabled to dispense with an enquiry only where the facts are fairly established, not requiring formal confirmation or proof, and further the authorized officer must take formal decision and state the reasons for adopting the show‑cause notice proce dure and dispensing with a formal enquiry. This Tribunal has also taken a similar view in the cases of Bank employees. As pointed out earlier neither an enquiry was held in the instant case nor there is on record a formal, order of the authorized officer dispensing with the holding of an enquiry.

3. For the reasons discussed by me above I find no merit in' this appeal and would dismiss the same.

A. E. Appeal dismissed,

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