MUHAMMAD AFSAR KHAN Versus MESSRS KARACHI METROPOLITAN CORPORATION

DECISION

This is an appeal filed by the appellant against an impugned order, dated 16‑1‑1986, passed by the Sind Labour Court No. 1 Karachi, who had dismissed the grievance petition of the appellant under section 25‑A, I.R.O. 1969.

2. Brief facts of the case are that the appellant was a permanent workman in the respondent corporation as a Driver since 4‑7‑1958. On 17‑8‑1981, he was charge‑sheeted for misconduct followed by a domestic enquiry resulting in the compulsorily retirement of the appellant from service with effect from 1‑12‑1981. As per claim of the appellant during the entire proceeding he remained under suspension. The appellant then filed a grievance notice and then the petition for his reinstatement in service with full back benefits.

3. The respondent Corporation resisted the petition of the appellant mainly on the objection that an action against the appellant was taken under Efficiency & Discipline Rules, 1974, therefore, the petition was hit by the proviso of sub‑section (c) of section 1 of the standing orders Ordinance, 1968, hence the petition be dismissed as not maintainable under section 25‑A, I.R.O. 1969. As regards the merits of the case it was submitted by the respondent Corporation that after affording full opportunity to defend himself and completing all the requirements of law, the appellant was rightly compulsorily retired from the service. It was also the claim of the respondent Corporation that prior to this misconduct, the service record of the appellant was also not un‑blemished.

4. Both the parties filed their affidavits‑in‑evidence and they were duly cross examined. Thereafter, the learned Labour Court had dismissed the grievance petition of the appellant, hence the present appeal.

5. I have heard Mr. M. M. Jeelani, the learned Advocate for the appellant and Mr. Yaseen Kayani, the learned Counsel on behalf of the respondent Corporation and I have also carefully perused the record & proceedings as well as the legal aspects of the case. I see no force in the contentions of Mr. Yaseen Kayani, the learned counsel on behalf of the respondent Corporation that as the action against the appellant was taken under the Sind Peoples Local Council Servants (Efficiency & Discipline) Rules, 1974, therefore, the provisions of I.R.O. 1969 on the Standing Orders Ordinance 1968 were not applicable. Mr. M. M. Jeelani, the learned Advocate for the appellant on the other hand, has submitted that it is an admitted position that there were two sets of case laws with regard to the applicability of Standing Orders Ordinance, 1968 to the employees of the respondent Corporation. Mr. Jeelani has referred to different decisions of this Tribunal as well as to the decision of Punjab Labour Appellate Tribunal in this behalf and has contended that it was held that Municipal Corporations, though have statutory rules governing service matters of their employees, are not run by or under authority of Government, but an independent body formed and functioning under law, therefore, are not ousted from the purview, of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. He has to these authorities reported in 1986 P L C at page 47 (S. L. A. T.), and 1983 P L C at page 581 (PLAT) Mr. M. M. Jeelani the learned Advocate for the appellant has further submitted that it was held by the superior Courts that a workman by covered definition as given in the I.R.O. employed in an establishment within the meaning of I.R.O. is entitled to invoke the provision of section 25‑A, I.R.O. 1969 for the enforcement of any right guaranteed and secured to him under any law, whether he is covered by the provisions of the Standing Orders Ordinance or not. In this respect, he has placed reliance on the cases reported in 1983 S C M R page 769; 1976 PLD Karachi at page 5141 and 1981 P L C at page 879 (SLAT). Mr. M. M. Jeelani has further placed his reliance on a Decision of this Tribunal in Appeal No.HYD‑4/83, decided on 8‑7‑1985. He has pleaded that in the view of the above authorities, it is clear that the K . M . C . i.e. the respondent Corporation is also covered by the Standing Orders Ordinance, 1968, and in the second instance, if the K. M. C. employee even not covered by the Standing Orders Ordinance, 1968, is entitled to invoke the provisions of section 25‑A, I.R.O. if he is aggrieved on account of violation of Statutory service Rules applicable to him, as has already been held by the superior Courts in the cases of K. P. T and the K. D. A. I n view of this admitted legal position and other relevant circumstances, I would hold that the appellant is fully competent to maintain grievance petition under section 25‑A, I.R.O. 1969 before the Labour Court.

6. As regards the merits of the case, it is an admitted position that the so‑called enquiry officer has put the cart before the horse and has miserably failed to adopt the proper procedure of holding enquiry by examining first complainant/prosecution witness, affording charge to the accused to cross examine and then to afford full opportunity to defend himself and produce defence witnesses. Further more, the prosecution witnesses were examined before each other, therefore, it was again contrary to the principles of Natural Justice and fair‑play. There is an admitted position that the Departmental Incharge, who is the person, mainly responsible for framing false charges against the appellant, remained present all along in the enquiry proceedings and all other prosecution witnesses, who are admittedly his subordinates, had recorded statements under fear and impression. 1 therefore, in view of this particular circumstances that In charge of the Department who remained present throughout in the domestic had got recorded his statement in the last, just to fill‑up the lacunas when in fact, he was supposed to do so. He was not eligible to be a witness. Under these circumstances, I would hold the entire enquiry proceedings as illegal and perverse, hence rejected. The impugned retirement order of the appellant, based on the findings a such type of enquiry proceeding is quite illegal and biased, hence, it is also set aside.

7. For the reasons stated by me above, I set aside the impugned order and would allow this appeal. The appellant is directed to be reinstated in service with full back benefits forthwith. The respondent Corporation may retire the appellant as per service applicable to him in due course.

S.Q./1033/Lb.S

Appeal allowed.