Find a Lawyer

Application No. 239 of 1983, decided on 31st July, 1984.

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

‑‑‑S.O. 15(4)‑‑Assistance in enquiry‑‑Dismissal from service on charges of misconduct Employer failed to provide assistance nominated co‑worker‑‑ Denial of assistance of co‑worker at enquiry makes enquiry deficient and cannot be said to be properly held‑‑Case remanded for fresh enquiry, order of dismissal set aside and petitioner re‑instated in service.

Ali Amjad for Applicant. Samiullah Khan for Respondent.

This petition under section 25‑A of the I.R.O. is directed against the dismissal order dated 19‑5‑1983 passed against the applicant by the respondents.

The applicant was charged with two instances of misconduct against him. The first being that on 13‑3‑1983 while on training at Rawalpindi for Fire Fighting course, the applicant was found to be present in Lahore without any legal permission from his superiors. The second charge being that on the said date the applicant alongwith others including his brother Khalid Tauqir had beaten up their superior officer Malik Mohammad Ahmed. Thereafter, enquiry team was appointed to hold enquiry against the applicant, his brother and other colleagues. The applicant was found guilty by the Enquiry Officer and finally he was dismissed vide their impugned order dated 19‑5‑1983, which has been challenged by this petition.

The respondent contested the petition and filed their written statement/reply on 24‑8‑1983 wherein the respondents have challenged the maintainability of the petition. It has been reiterated by the respondents that the applicant had indulged in riotous and disorderly behaviour to the extent of physically assaulting an officer of the respondent organization. It has been denied by the respondents that the enquiry was unfair. The applicant was given every chance to contest the matter and cross‑examine the witnesses. The enquiry was held in a legal way. The copies of the enquiry proceedings were supplied to the applicant. He was heard in person and finally upon scrutiny the Enquiry Officer found him guilty of misconduct and finally he was dismissed from service on 18‑5‑1983. It is reiterated by the respondents that there was no violation legal provisions in holding the enquiry. It is said by the respondent that the applicant was informed to negotiate with the co‑worker by whom he wanted to be assisted. The Enquiry Officer were impartial and had taken every precaution to see that no injustice be made with the applicant and had given him full liberty and opportunity. The respondent say that there is no justification to allow this application as no illegality has been committed.

The applicant filed his own affidavit in evidence (Exh. 3). He has been cross‑examined at length and so also one of the Enquiry Officers Taufiq Ahmed on his Affidavit‑in‑evidence (Exh. 4).

I have gone through the entire evidence on the record and the documents as well. I have also heard the learned representative of the respective parties at length.

Admittedly, the enquiry was held at Lahore wherein the applicant had participated, of course without the assistance of a co‑worker. Admittedly, he had nominated one Maqsoom Ali a worker at the head office at Karachi. It is also admitted that the co‑worker at that time too was working in the respondent‑Company. It was an encumbent duty of the respondent to have deputed this nominee of the applicant to assist him at the enquiry as he could only attend the enquiry with the permission of the Head Office. Had he been employed in some other company having no concern with the respondent, the applicant was bound to produce him of his own accord. But as already mentioned, this Maqsoom Ali was the employee of the respondent it was their duty to make him available. No requisition for his attendance seem to have been made by the Enquiry Officers as well. Even this fact has not been put to the applicant in his cross‑examination by the representative of the respondent. Thus, this fact goes un-controverted and proved. It has also come in evidence that an important witness namely Subedar Mohammad Khan refused to answer a particular question during the enquiry in respect of his absence from the scene of occurrence. He was not forced by the so‑called enquiry team to answer this question. Not replying to this question would only suggest that he was not present at all at the time of incident. The presumption would go in favour of the applicant.

The denial of the assistance of co‑worker at the enquiry makes the enquiry deficient.

I, therefore, find that the enquiry held against the applicant suffers from material defect and cannot be said to be held properly, as such the dismissal order based therein is also not proper and justified. I, therefore, set aside the same and direct the respondent to hold a fresh enquiry through some independent person, at Karachi wherein the applicant be given a full opportunity to defend himself and the assistance of his co‑worker of his choice be provided. The questions of back benefits shall be decided after the result of the enquiry, to be commenced within two months. The applicant is re‑instated within one week of this order.

M. I.

Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.