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Application No. 241 of 83, decided on 10th May, 1984.
‑‑‑S.2(1)(n)(ii) read with Schedule 2(xiii)‑‑Workman‑‑Sorter in Railway Mail Service‑‑Employed in Postal Service, a Central Government Department, held, workman and excluded from category of Civil Servant.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑--
‑‑‑S.O.15(4)‑‑Dismissal from service‑‑Petitioner contends that no proper enquiry was conducted‑‑Respondent's witness not sure whether examination of witnesses during enquiry proceedings was made in presence of petitioner‑‑Enquiry Officer not examined nor enquiry proceedings produced before Court‑‑Presumption drawn against respondent that enquiry was not proper‑‑Order of dismissal set aside and petitioner re‑instated in service‑‑Respondent at liberty to hold fresh enquiry providing full opportunity to petitioner to cross‑examine witnesses.
P L D 1978 S C 207 rel.
Ali Amjad for Applicant.
Izhar Alam Farooqui for Respondents.
This is a petition under section 25‑A of the I. R.O., filed by the applicant for setting aside his dismissal order and re‑instating him with back benefits.
The facts in brief are that the petitioner was a permanent workman in the Railway Mail Service and had been working in different posts. On 2‑7‑1980 he was performing his duties as a clerk. On 7‑3‑1981 he was charge‑sheeted. He replied to the allegations of the charge‑sheet on 2‑5‑1981. An enquiry was held against him and on conclusion thereof the enquiry report was prepared on 13‑3‑1982 wherein adverse finding was given against the applicant hence on 4‑9‑1982 the dismissal order was passed against him which he received on 16‑9‑1982. On 16‑10‑1982 the applicant filed a departmental appeal which was rejected on 11‑5‑1983 hence grievance notice given by the applicant on 24‑5‑1983 and thereafter the present application on 3‑8‑1983.
The respondent contested the petition and filed their Reply Statement. At the outset the respondents took the preliminary objection that the petition is not maintainable at law and is time‑barred. Further that the applicant has no cause of action to file this application. On the factual aspect the respondents have denied the averments of the petition. According to the respondents the applicant was rightly dismissed from service after proper and legal enquiry and he was given every opportunity to defend himself. The respondents urge that the application of the applicant be dismissed.
Both the parties filed affidavits in evidence in support of their case. The applicant filed his own affidavit (Exh.4) affirming the .contents of his petition and was cross‑examined by the representative of the respondents. On behalf of the, respondents affidavit of S. M. Raza has been filed (Exh.5) in support of the case of the respondent. He has been cross‑examined by the learned representative of the applicant. Out of the pleadings the following issues arise for the purpose of the appreciation of the merits of the case.
(1) Whether the application is not maintainable at law
(2) Whether the applicant is a workman and could invoke the juris dictions of this Court
(3) Whether this application is time‑barred
(4) Whether the order of dismissal was not just and proper as no proper enquiry was held
(5) Is the applicant entitled to the relief claimed for by him
(6) What should the order be
Both issues are connected with each other and I propose to dispose them of together.
It has been contended by the learned representative of the respondent that the applicant was a Civil Servant as he was employed in the Postal Service which is Central Government Department and all the employees of this department are Civil Servants hence the petitioner not being a workman cannot come to this Court by under section 25‑A of the I.R.O., at law. This has been affirmed by the witness S.M. Raza, examined by the respondents.
The learned representative of the applicant has vehemently opposed this proposition. According to him, the fact that the applicant was a sorter in the Railway Mail Service which is not denied. He contended that the provisions of section 2(n)(ii) of Workmen's Compensation Act Schedule 2 (xiii) clearly show that the applicant is a workman and therefore is excluded from the category of civil servants consequently, the applicant could take the protection of Section 25‑A of the I.R.O.
I have examined this position and the provisions of the Workmen' Compensation Act which make it clear that the applicant was not Civil Servant and fell within the category of a workman. Hence hi could invoke the jurisdiction of this Court. These issues are answered accordingly.
The learned counsel for the respondents has contended that the entire matter was time‑barred as the applicant has filed this petition almost after a lapse of ten months from the date of dismissal i.e. 16‑9‑1982. According to the learned representative of the respondent the maximum period which could be availed of by the applicant was five months consequently the application is miserably time‑barred and should be dismissed only on this score.
Admittedly, the applicant was dismissed on 16‑9‑1982. He filed the departmental appeal on 16‑10‑1982 which was rejected on 11‑5‑1983. He therefore gave a grievance notice on 24‑5‑1983 and then filed the present petition on 3‑8‑1983.It is a settled law that the time absorbed during the departmental appeal can be availed of by the applicant. Therefore, the date when the Grievance Notice was given on 24‑5‑1983 was the crucial date. Two and a half months if counted from this date then too the last day of limitation would fall on 8‑8‑1983 which is in time. This issue is therefore, held within negative.
The burden of proving that the order of dismissal was not just and proper and no proper enquiry was held in this matter lay upon this applicant. The petitioner during his cross‑examination to explain the circumstances as to how the enquiry had been conducted has not been put wherein. Only plain suggestions have been put to him that he was rightly dismissed and that the enquiry was legal both these suggestions have been denied.
On the other hand the respondents witness S.M. Raza, has frankly said in his cross‑examination that he is not sure if the Enquiry Officer did not examine the witnesses in presence of the applicant during the enquiry proceedings. The benefit of this reply supports the case of the applicant and establishes the fact that the witnesses were not examined in the presence of the applicant, by the Enquiry Officer. Above all, the respondents have failed to examine the enquiry officer nor have produced the enquiry proceeding before the Court. This was essential and in absence of this the presumption be drawn against the respondents in view of P L D 1978 S C 207. 'Thus for these reasons I am constrained to hold that the enquiry was not proper and %s such the dismissal Order was not proper. This issue is decided accordingly.
In view of my finding on above issue find that the applicant is entitled to the relief claimed for by him.
In the result of my finding on issue No.5, the dismissal order passed by the respondents is set aside. The respondents are directed to re‑instate the applicant within seven days. Since the dismissal order, has been set aside on the technical ground, I order that the respondents, if they choose may hold a fresh enquiry within two months of this P order, by an independent officer other than the present enquiry officer. In this enquiry the applicant will have full opportunity to cross‑examine the witnesses and to examine his defence. The back benefits shall depend on the result of this enquiry.
M. I.
Petition accepted.
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