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Appeal No. KAR-569 of 1983, decided on 6th November, 1984.

---Ss.25-A & 38(3)--Railway Servants (Efficiency and Discipline) Rules, 1975, r. 5(3)--Railway servant charged for causing damage to truck by negligent driving--Dismissed from service without defence opportunity- Labour Court accepting grievance petition awarding re-instatement with full back benefits--Order of Labour Court challenged in appeal without making re-instatement--Non-re-instatement, in circumstances, held, flagrant contravention of law--Fact of alleged damage taken into consideration by Appellate Tribunal hence back benefits from date of impugned dismissal order till date of order of Labour Court reduced to 75%.

A.T. Mahmood for Appellant.

M. M. Jeelani for Respondent.

Date of hearing: 4th November, 1984.

This is an appeal against the impugned order passed by the Sind Labour Court No.V, Karachi, on 6-8-1983, whereby he ordered that the respondent be re-instated with full back benefits.

2. Briefly the facts are that the respondent Shakoorullah Khan was a workman employed as Railway Fire Driver with the appellants establishment. He was charge-sheeted on 7-7-1981 for gross negligence on the grounds that he drove one truck without proper check and consequently, he met with mishap and caused damage to Gear-box. The respondent submitted his explanation and denied the charge of negligence. He was, however, put under suspension. The charge-sheet was issued and in consequence of an ex parte enquiry he was removed from service on 22-8-1981. However, he appealed but he was not replied despite one reminder. On 24-2-1982, he gave notice of grievance which was also not replied, therefore, he filed a grievance application under section 25-A, I.R.O., 1969. The Labour Court decided that the grievance, application was hit by the doctrine of limitation and, therefore, he dismissed the grievance application. However, in the appeal, this Tribunal decided that it was not hit by the doctrine of limitation and the case was remanded to the Labour Court to give decision on merits.

3. The respondent filed his affidavit in evidence and was cross- examined. So, also the appellants filed affidavits of Abdul Aziz and Amir Muhammad Malik. They were cross-examined in the lower Court.

4. I have heard the learned counsel Mr. A.T. Mahmood for the appellants and Mr. M.M. Jeelani for the respondent. One Amir Muhammad Malik was appointed as an Enquiry Officer who submitted his affidavit before the Labour Court. He was cross-examined. He stated that he was called by the Divisional Mechanical Engineer who informed him of his appointment as an Enquiry Officer. This was oral and no letter of appointment as an Enquiry Officer was given to him. He was supplied with only the file. No notice of enquiry was given to the respondent. He started the enquiry on the same day when he received the file and completed the same, on the same day. On the next day, he submitted his report. He has further stated that he did not know if any second show-cause notice was given to the respondent. He was serving as Loco Inspector Fuel. The other witness Abdul Aziz of the appellants states that no second show-cause notice was given. He does not know anything about the enquiry proceedings. In nutshell, from the evidence on record it appears that the respondent was not informed about the enquiry nor he was given any chance to defend himself.

5. Mr. A. T. Mahmood has argued that there was no necessity to give him notice as it was a summary procedure adopted under section 5(3) of the Railways Servants (Efficiency & Discipline) Rules, 1975 This summary procedure as adopted was rather hasty and no chance was given to the respondent whatsoever and he was plucked from the service and straightaway dismissed. This procedure was unwarranted specially when it entails to the dismissal of the respondent. The lower Court has justly observed that he was not satisfied with regard to the dismissal order of the respondent. I fully agree with the lower Court and maintain his order. However, the fact of gear-box was rendered useless in the truck and as such 1 modify the order and while maintaining his re-instatement. I order that only 75% of the back benefits be awarded to him from the date of his dismissal upto the date of the order of the Labour Court i.e. 6-8-1983. Mr. A. T. Mahmood had argued that the 75% back benefits be ordered from the date, this Tribunal decided the appeal, but as from the record, it appears that the respondent was not re-instated despite the order of the Labour Court which is a flagrant, contravention of the provisions of Law and, therefore, 75% back benefits be awarded only from the date of respondent's dismissal upto the date the Labour Court ordered.

A. E.

Orders accordingly.

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