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Applications Nos. 70 and 71 of 1984, decided on 10th December, 1985.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--
---S.O. 15 (3) (i)--Misconduct--Single act of neglect of work, held, was sufficient to constitute misconduct.
--- Domestic enquiry--Minor discrepancies in manner of enquiry not causing prejudice to accused, held, would be immaterial.
Ali Amjad for Applicant. S.M. Yaqoob for Respondents.
This order disposes of both applications of workers under section 25-A of I.R.O. 1969 filed by them against their dismissal from service by the respondents.
Case of applicant Pervez Akhter is this that he was a permanent workman and employee as Tally Clerk. That on 6th March, 1983 he was served with a charge-sheet wherein it was alleged that he permitted loading of 91 Bars in truck No. 808-725 which was not rejected "C" grade shafting, though written instructions issued specifically requiring that rejected "C" grade shafting marked with red paint shall be dispatched. The applicant Pervez Akhter replied the charge-sheet. The respondents were not satisfied with the reply submitted by the applicant and, therefore, domestic inquiry was held into these charges. The Inquiry Officer after holding departmental inquiry recommended the dismissal of the applicant. The respondents, therefore, dismissed the applicant for misconduct gross neglect and disobedience of orders.
Applicant, therefore, challenged the said dismissal by way of the present applicant before this Court.
The case of the applicant Mr. Azizul Haque is this that he was a permanent workman and employed as clerk and had put in 10 years of service with respondents. That on 6th March, 1983 the applicant was served with a charge-sheet wherein it was alleged that the applicant supervised the weighment of truck No. 808-725 on 8-2-1983 loading with rejected "C" grade shafting by other officer. That some material was later unloaded by authorities and on the second weighment of the truck, the applicant instead of preparing a fresh weighment slip, had made additions and alterations on the said slip with intention of concealing a weight and disobedience of order by the fellow Tally Clerk Parvez Akhtar. Applicant submitted the reply to the charge-sheet and the respondents were not satisfied with the reply and, therefore, the respondents appointed an inquiry officer. The General Manager of the respondents appears to have made a personal inquiry into these allegations without giving applicant any opportunity to participate. On the basis of the report of the Inquiry Officer the respondents dismissed the applicant on 23-2-1984 for misconduct, fraud, and dishonesty. According to applicant the dismissal order is mala fide, illegal and based on no evidence of allegation of misconduct.
The applicant submitted grievance notice, which was rejected by the respondents and, therefore, applicant approached this Court with a prayer to re-instate him with back benefits.
The respondents filed separate reply statements. The respondents stated that both the applicants were employed as Tally Clerk and clerk respectively. That charge-sheet was issued against both of them. Both the applicants submitted reply to the charge-sheet. The respondents considered the reply of both the applicants unsatisfactory and, therefore, the respondents management appointed inquiry officer to hold domestic inquiry against both the applicants. Both the applicants fully participated in the inquiry, cross-examined the witnesses produced against them. The minutes of the inquiry were also supplied to both the applicants. The preliminary investigation was made before the issuance of charge-sheet. The inquiry officer after holding inquiry found both the applicants guilty of misconduct and, therefore, recommended major penalty of dismissal.
The respondents management after considering the inquiry report dismissed both the applicants. It is submitted by the respondents managements that there is no force in the applications under section 25-A of I.R.O. 1969 as these applications are misconceived, unwarranted and without merit.
Applicant Pervez Akhtar examined himself and he was cross-examined by the representative of respondents. The respondents examined Amir Azam Khan and Muhammad Ismail and were cross-examined by Advocate for applicants.
Mr. Azizul Haque examined himself and he was cross-examined by the representative of the respondents. The respondents examined Mr. Amir Azam Khan and Muhammad Ismail and both of them were cross-examined by Advocate for applicants.
I have heard the learned Advocate for applicants and representative for respondents and perused the evidence brought on record.
Mr. Ali Amjad the learned counsel for applicants urged before me that allegations levelled against both the applicants do not constitute misconduct or wilful insubordination or disobedience under Standing Order Ordinance, 1968.
The learned counsel contended that management failed to establish the allegations levelled in the charge-sheet and the inquiry was not conducted and in accordance with the law.
According to learned counsel in absence of sufficient evidence the dismissal is illegal and both the applicants are entitled to re-instatement with full back benefits.
Mr. S.M. Yaqoob appearing for respondents contended that both the applicants fully participated in the inquiry. Both the applicants cross-examined the witnesses produced against them.
The applicants signed each page of the minutes of the inquiry. According to learned counsel the inquiry officer found the applicants guilty and, therefore, the management had rightly dismissed both the applicants, Mr. S.M. Yaqoob further, urged that charges levelled in the charge-sheets clearly established the misconduct on the part of both the applicants. The management proved the charges against both the applicants. According to him the management had rightly dismissed the applicants and there is no force in both applications under section 25-A of I.R.O. and both applications are liable to be dismissed.
I have carefully considered the contentions advanced before me.
Whether the allegations in the charge-sheets against both the applicants constitute misconduct within the meaning of Standing Order Ordinance, 1968. To constitute, theft, dishonesty or fraud it is not necessary that the culprit must run away with the material or property so that the offence can be said to be a theft, dishonesty or fraud.
According to section 15 subsection (3) clause (b), it is mentioned that following acts and omission shall be treated as misconduct, theft, fraud and dishonesty in connection with the employers business.
The allegations of dishonesty and fraud are specifically shown in the charge-sheets and the management has, therefore, proved that the allegations of misconduct is within the meaning of Standing Order Ordinance, 1968.
The contentions of Mr. Ali Amjad that no case of theft, fraud or dishonesty is made out against the applicants has got no force.
In the case of Mr. Pervez Akhter there is not only allegation of gross neglect of work but also there is allegation of disobedience of order within the meaning of Standing Order Ordinance, 1968.
The contentions that management failed to prove wilful insubordination or disobedience to bring the case within the mischief of misconduct have equally no force.
There is written order in the minutes of the proceedings and the disobedience of such an order by worker is a misconduct. Single act of neglect of work is sufficient to constitute misconduct.
I am, therefore, of the view that charges levelled against both the applicants are covered by the provisions of misconduct as defined in Standing Order Ordinance, 1968.
The other contentions that management failed to establish charge against both applicants. In this regard the management examined Amir Azam Khan and Muhammad Ismail the Inquiry Officer to establish the charges levelled against both the applicants. Mr. Amir Ahmad Khan filed affidavit in evidence in which he implicated both the applicants.
Amir Azam Khan was extensively cross-examined by the Advocate for applicant. The management examined the Inquiry Officer and the said Inquiry Officer was also cross-examined by the Advocate for applicant. Nothing substantial has been brought to show that charges are disproved.
The point is this that an Inquiry Officer is not a judicial officer to conduct the inquiry in consonance with the provisions of law. In domestic inquiries the management appoints a senior person to hold domestic inquiry against the worker. In both cases the perusal of inquiry proceedings show that ample opportunities were given to the applicants to cross-examine the management's witness. The inquiry officer found both of them guilty. There is no illegality or bias in the report of the inquiry officer. Both the applicants have admitted the nature of their duties in cross-examination.
Applicant Pervez Akhter in league with Azizul Haque tried to give benefit to the party dishonestly in defiance of the said written order and, therefore, it can be said that both the applicants wilfully and knowingly committed the acts alleged against them.
Both the applicants did not produce any defence witness in the inquiry. The perusal of the evidence brought on record clearly shows that the management is able to establish the guilt of both the applicants and I, therefore, agree with Mr. S.M. Yaqoob who appeared for respondents that both the applicants participated in the domestic inquiry and the management established the guilt of both the applicants.
The last contention raised by Mr. Ali Amjad is this that inquiry officer did not conduct the inquiry in accordance with the provisions of law.
The perusal of the evidence recorded by the Inquiry Officer shows that he recorded the evidence of management witness and allowed the applicant to cross-examine the said witness. There are minor discrepancies in the manner the inquiry was conducted against both B the applicants. The point for consideration is this whether any prejudice was caused to the applicants.
The main contention against the impartiality of the inquiry officer is this that some documents were brought on record at the back of the applicants.
Annexure "Z" which is letter addressed to the inquiry officer about his appointment as inquiry Officer. Alongwith this letter five documents are listed and the written order, dated 1-2-1983 and weigthment slip No. 205 are also attached. The Inquiry Officer is of course not a judicial officer but under the circumstances I do not find any bias in the inquiry officer and at the same time the careful examination of the inquiry report shows that the management proved its case against both the applicants. No prejudice is caused to both the applicants. The acts of both the applicants are clearly acts of misconduct as defined under the Standing Order Ordinance, 1968. The management had, therefore, rightly dismissed both the applicants.
Considering the evidence I find that there is no force in the applications under section 25-A of I.R.O. of Pervez Akhter and Azizul Haque. I hereby dismiss both the applications.
A.E.
Applications dismissed.
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