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Application No. 27 of 1983, decided on 19th November, 1984.

‑‑‑Domestic enquiry‑‑Basic requirement‑‑Independent and impartial justice‑‑Enquiry essential for misconduct resulting in dismissal only‑ Enquiry if conducted for imposition of penalty other than dismissal must also be according to rules of justice‑‑Show‑cause notice for imposition of penalty of withholding increment‑‑Enquiry conducted by complainant and witness to be impeached‑‑Penalty of withholding, in circumstances, held, not sustainable.

1980 P L C 699 and 1981 P L C 849 ref.

‑‑‑Suspension‑‑Precedes enquiry for penalty of dismissal‑‑Show‑cause notice not for dismissal‑‑Suspension, in circumstances, held, not legal.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 0 15(4)‑‑Misconduct proceedings‑‑Findings of fact not given by Enquiry Officer‑‑Matter, in circumstances, held, outside scope of S. 25‑A, Industrial Relations Ordinance, 1969‑‑‑Workman charged for absence‑‑Medical Certificate in support of justification for absence in dispute‑‑Employer, in circumstances, held, justified to take proceedings and workman has to justify whether absence was intentional or not wilful‑‑Labour Court, in circumstances, refraining from reaching its own conclusion about medical certificate and leaving same for Enquiry Officer to decide and for creating cause of action for application before Labour Court.

Ashraf Husain Rizvi for Applicant.

Kamal Mansur Alam for Respondents.

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This is an application under section 25‑A of the Industrial Relations Ordinance, 1969, filed by Muhammad Ibrahim, against the Pakistan Steel Mills, for seeking directions to the effect, that the order passed, dated 23‑12‑1982, be set aside and the respondents be restrained from withholding the annual increment of the applicant and further to direct the respondents to release his increment for due date, and also to direct the respondents, to release the pay of the applicant, for the extra period for which, it has been withheld, including the period of suspension, from 7‑12‑1982 to‑18‑12‑1982, and the period from 4‑10‑1982 to 31‑10‑1982, for which he has submitted the medical certificate and also to restrain the respondents from subjecting the disciplinary action, for absence, from 4‑10‑1982 to 31‑10‑1982, on account of illness and under medical advice. The impugned order, for withholding the increment which was due on 15‑3‑1983, is challenged, as illegal.

2. The applicant is a permanent workman, since 15‑3‑1977. Applicant was suffering from illness from 4‑10‑1982 and was under the treatment of Dr. Asrarul Hassan. Under these circumstances, applicant applied for leave, dated 7‑10‑1982, and the applicant submitted another application, dated 6‑10‑1982, supported by the medical certificate of taking rest from 4‑10‑1982 to 31‑10‑1982.

3. Applicant joined his duties on 1‑11‑1982 and when he submitted the joining report, with the fitness certificate, the period of absence from 4‑10‑1982 to 31‑10‑1982 was not regularised and the pay of the applicant for the period from 4‑10‑1982 to 31‑10‑1982 was not released. The respondent further stopped the. pay after joining his duty. Thereafter, the applicant was served with the show‑cause notice for his absence. He submitted explanation and after finding the explanation unsatisfactory, was placed under suspension, dated 7‑12‑1982. Applicant was kept on suspension foil 12 days from 7‑12‑1982 to 18‑12‑1982. Though he attended the duty and marked present. On 19‑12‑1982, applicant was directed to attend the enquiry on 21‑12‑1982 in the Office of Mr. Mahmood Asghar Qureshi, and applicant made application for the change of the enquiry officer. The request was not accepted. Thereafter, he participated in the proceedings, but found that there was no prosecution evidence, and finally, held guilty of the charge. No copy of the enquiry report was also furnished or the enquiry proceedings were at all, proper proceedings, with absolute impartiality. However, it was noticed that the competent authority passed the order, that .the annual increment which is due to him on 15‑3‑1982, is withheld.

4. Petitioner has raised number of contentions, that there was no material to hold him guilty. The Chief Engineer (HSM) was himself the complainant, being the Head of the Complex. The same Chief Engineer issued order of suspension and instituted the enquiry. Secondly, the pay of the applicant from 1‑10‑1982 was stopped on the orders of the Chief Engineer.

5. Respondent has filed the reply, that due to unauthorised absence of the applicant, instructions were issued to the Department for the stoppage of his pay for the period of his absence. As regards the enquiry proceedings, they have fully supported, that proceedings were impartial and it was rightly taken as an action, when his absence was unauthorised and, therefore, the period under absence was not regularised.

6. Mr. Muhammad Ibrahim has claimed number of reliefs, namely, the withholding of increment, which was illegal. Secondly, the supension, which was without any lawful authority and thirdly, leave from 4‑10‑1982 to 31‑10‑1982, during illness, when he was advised to have 4 weeks' rest by the medical officer of the respondent mill and, lastly, to restrain the respondent, not to take disciplinary action, during the absence.

7. On these points of factual and legal interest, evidence is examined of the parties. Mr. Mansur Alam has referred to the decision of the learned Labour Court Judge, in case of Syed Nazar Husain v. Pakistan Steel Mill, where the contention was raised, that, except the charge of dismissal, no enquiry is necessary under the Standing Orders and referred to the observations of the learned Judge, where he has also based his decision on the reported decision, 1980 P L C 699 and 1981 P L C 849.

8. I refer to the relevant observation of the learned Labour Court Judge, in that case, which has been produced in this Court:

"I have gone through the afforested authorities, wherein it has been held that the provisions of Standing Order 15(4), requiring the issuance of charge‑sheet within 30 days of the misconduct, being brought to the notice of the employer, and holding the domestic enquiry, are to be adhered to the cases only, where the punishment of dismissal is to be awarded and not in the cases of other punishments."

9. In the present case, if this Court takes the view, that, the enquiry was not necessary, in the case of withholding of increment, which, only occurs in the case of dismissal, as a minor punishment and the employer is not under the obligation to hold enquiry when the impugned action of the negligent of duty, that, he left the official file unattended on the table, whether, is, within the purview of the Standing Orders, to challenge the enquiry procedings of the employer.

10. If I am to take this view that the enquiry is not necessary but the relief, which is claimed by the applicant, that the impugned action is without lawful authority, whether can be challenged in the application under section 25‑A, where the right also, if it is secured or guaranteed by the terms of the employment, can be challenged. The Court is of this view, that if the right is claimed of increment, and this applicant Muhammad Ibrahim is also given the show‑cause notice and the enquiry also is held by the employer, before awarding punishment, on the principles of the rules of natural justice, whether once the enquiry is ordered, whether it fulfilled the requirements of law.

11. If the Court is of the opinion, that, if Mr. Ibrahim was facing the enquiry and Enquiry Officer Mr. Asghar Qureshi asked the questions, to impeach the sense of duty, by asking, regarding the accumulation of work on table, or lack of interest in the performance of duty, which resulted in neglect of work. Muhammad Ibrahim, has also referred the names of Asghar Qureshi, Executive Engineer, in the enquiry proceedings, and Mr. Manzoor Shaikh, that, by these authority of officers, concerned, he was asked to work on the site whether the respondent management did change enquiry officer, to another enquiry officer, when Mr. Asghar Qureshi himself could not be the Judge of the fact, itself, under the impeachment. The basic requirement of enquiry, in the Court's opinion, is the independent and impartial justice, which I am‑ afraid, was not done in the case, by referring the enquiry B to the person, not concerned or Mr. Asghar Qureshi, itself, could move the respondent on its motion, for the change of enquiry officer, due to ‑his personal interest.

12. Basically, the evidence of respondent on this point of charge sheet, which they have undertaken, is not according to the rules, on its perusal, so also the suspension, because the suspension precedes the enquiry as contemplated under the Standing Orders, when the enquiry of dismissal is contemplated, within the required period. If it is the contention, that, it was the punishment of increment, and not the case of dismissal, no enquiry was necessary, and even if there was enquiry, arid there is nothing in the show‑cause notice, that, he was facing the minor punishment, in clear words, the suspension, as understood in the provisions of the Standing Orders, is only in the cases, of dismissal, which is not the case here. Mr. Muhammad Ibrahim attended the duty, even during the suspension, which is confirmed from the attendance register.

13. Lastly, the question is of the absence of Mr. Muhammad Ibrahim, whether, the absence was authorised Respondent has examined Mr. Mehfooz and Mr. Fayyaz Ahmed, Assistant Managers. What Mr. Fayyaz Ahmed has said in the evidence, is to this effect, that, applicant remained absent from duty from 10‑11‑1981 without leave and reported on 29‑11‑1981 When he made application, which was not granted, and then, in pare. 7 of the affidavit he has said, that the enquiry officer submitted the enquiry report, and the proceedings, which is the document R/2, but it is not produced in the evidence.

14. Mr. Mehfooz states, that, he applied for sick leave on 7‑10‑1982 and informed on 17‑10‑1982, that he is not granted the leave, for unlimited period, and he should produce the medical certificate. Where after applicant forwarded the medical certificate, according to which, applicant was said to have been suffering from hepatitis. This certificate was not approved and the applicant was referred to the Chief Medical Officer. The Chief Medical Officer further informed, that, the applicant did not indicate any sign of hipatatis and, therefore, his leave was treated without pay.

15. In this context, Dr. Capt. A.H. Farooqi is examined. He has confirmed, that, Muhammad Ibrahim remained under his treatment, from 4‑10‑1982 to 31‑10‑1982, and was suffering from jaundis, which was the point of issue.

16. Then on the record of the respondent evidence, two letters are produced in this Court, one is the letter of Chief Medical Officer Muhammad Salim Qureshi, who has not agreed with clinical test, undertaken by Dr. Farooqi and also removed him from panel. Second letter is, dated 17‑10‑1982, by which Mr. Ibrahim was advised to produce the medical certificate, to whom he was registered as patient.

17. However, when referring to the certificate of Chief Medical Officer, it may be mentioned, that, Mr. Salim Qureshi, has not confirmed regarding medial certificate, that, it was a false certificate, but based his opinion, with these words, that, it teas doubtful, that any clinical test has been taken. There is no clear finding that it was false opinion, when two medical experts in the field of Medical science, have examined the patient.

18. The question now, that arises in this case is, whether the respondent has proceeded to charge‑sheet Mr. Ibrahim on the ground of absence and incorrect submission of medical certificate, which is not the case. If the prayer of Muhammad Ibrahim is, that, restraint order be issued for taking disciplinary processing, it is the misconception pf the petitioner. Under the law, employer is justified to take proceedings and the petitioner has to justify, whether his absence was intentional or not wilful. The fact, that, the medical certificate of medical officer is under the Court's investigation, the Court will still refrain from reaching the conclusion, when the enquiry officer has to decide this question, first, for him to create the cause of action, to come in the Labour Court, to challenge his findings, Chief Medical Officer is not examined in this Court, to impeach his evidence by the petitioner. Consequently, if no finding is given it is outside the scope of application, under section 25‑A, and farther it is the right of the employer, under section 15 of Standing Orders, to have the finding of the Enquiry Officer, in the first instance, and to find out by the Court, thereafter, whether the conclusion reached by the Enquiry Officer was based, on judicial consideration.

19. Finally, I refer to the service regulation. The service regulation referred to the person engaged on contract, or employed for short period, against ad hoc post, or on deputation.

20. If Chapter 60 is with reference to appeal that in any negligence, breach of disciplinary rules, or inefficiency, the corporation may proceed to punish any of the person employed therewith, the Court is of the view, that, if any right, regarding the employer and workman relationship, within the framework of the Labour laws, if it is neglected, within the Standing Orders, the Court will examine, whether the so‑called punishment was legal, under the Standing Orders. The respondent has to inform the petitioner that he is being Proceeded of enquiry, regarding minor punishment, expressly or to inform him that no enquiry is necessary, as it is contended by Mr. Mansur Alam, Advocate of the respondent.

21. It may also be mentioned that in case of suspension, assuming the Court is of the view that the proceedings of the enquiry resulting in suspension was intimated of misconduct, but, before the stage reached of dismissal, the minor punishment was awarded of withholding of the increment, whether the suspension is understood within the meaning of the enquiry, which preceded against the employee, regarding dismissal. I may refer that the show‑cause notice has not given clear indication, of dismissal, that, he will be awarded major penalty, if it is proved to take himself outside the scope of the right of enquiry or as the case may be.

22. In the result, the increment of Mr. Muhammad Ibrahim cannot be with hold, by the respondent, in this peculiar case, where once they have proceeded against him and the evidence is‑ not based on appreciation. If the respondent is to be proceeded on the charge of habitual neglect of work, where the word "habitual" is of legal import, the enquiry, in the manner it has taken place, by appointing Mr. Asghar Qureshi, as the Enquiry Officer, when he was himself the witness to be impeached, the increment of Muhammad Ibrahim now, cannot be withheld.

23. As regards the question of unauthorised absence, the relief cannot be granted, till the respondent has proceeded against Mr. Muhammad Ibrahim, on the charge‑sheet, to determine the correctness of medical certificate, he has, therefore, no cause of action, at present, or any restraint order can be issued, for taking disciplinary proceedings, or the law provides such remedies, when it is the employer's right to proceed against him and they have right to form opinion, unless the enquiry officer gives the conclusion, otherwise, in his favour.

24. As regards the case of suspension, this question has passed through my consideration, examining the show‑cause notice. Under the rules of discipline, employer can suspend any employee, if he wants to proceed against him, for the misconduct, leading the dismissal, in the manner as the Standing Orders governs, the right, but in this case, Mr. Mansur Alam has taken one specific plea, that, no enquiry is necessary in the case of minor punishment. If he would have said that the enquiry was to proceed for awarding major penalty, but, after the conclusion of the Enquiry Officer, they wanted to award minor punishment, then that was different question, because the suspension precedes the enquiry of dismissal, likewise, in the show‑cause notice, or the suspension, there is no clear indication, that, the misconduct of which he was being suspended, was to result in the major punishment, to invoke the jurisdiction of suspension, under the Standing Orders, within the requisite period of limitation of suspension. In the opinion of this Court, Mr. Muhammad Ibrahim, if he has worked physically during the suspension, and the suspension is a defective, and was the misconception of law, he is entitled to half of the pay.

25. Finally, the application is allowed, to that extent. Since, there is no impugned dismissal, the question of re‑instatement does not arise, he will be entitled to increment, as claimed by him, from the day, which is due.

26. Reference is made by Mr. Ashraf Husain Rizvi, to 1965 PLC 304, 1970 P L C 451 and 1970 P L C 90.

A.E.

Orders accordingly.

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