DEPUTY POST-MASTER (DELIVERY), HYDERABAD Versus NIZAMUDDIN

DECISION

This is an appeal against the order of learned Presiding Officer Sindh Labour Court No.VI at Hyderabed, dated 21-2-1991, whereby grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Mr. Sultan Ahmed Khan, learned Advocate for the appellant and Mr. Syed Fasahat Hussain Rizvi, learned counsel for the respondent and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that respondent was admittedly working with the appellants as Mail Peon/Postman. It is alleged that he received Rs.1,000 from one Abdul Hafeez for the purpose of money order on 2-9-1987 but issued only `Katcha receipt' to the sender and also that he did not send the amount to the addressee but misappropriated the same. 4On the complaint of Abdul Hafeez, the matter was enquired into and the respondent was charge?-sheeted on 14-2-1988. After the Departmental Enquiry, he was found guilty and was dismissed from service vide order, dated 6-7-1987. After serving grievance notice upon the appellants the respondent filed the grievance petition before the learned Labour Court which was resisted by the appellants inter alia on the ground, that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the `Ordinance') was not applicable in view of first proviso to Section 1(4) of the Ordinance. Admittedly the respondent is not `Civil Servant' as defined under the Civil Servants Act. Mr. Sultan Ahmed Khan, however, contends that the Government Servants (Efficiency and Discipline) Rules, 1960 were applicable to all the Government Servants including those who are now considered as workmen under the Civil Servants Act, 1973. He contends that they have not been repealed in toto by Rule 11 of Government Servants (Efficiency and Discipline) Rules, 1973 and as such they would be deemed to be applicable so far as the respondent is concerned. It may be pertinent to reproduce Rule 11 of Government Servants (Efficiency & Discipline) Rules, 1973 which reads as under:-

"11. Repeal .--The Government Servants (Efficiency & Discipline) Rules, 1960 in their application to the Government Servants to whom these rules apply and the Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961 are hereby repealed, but the repeal shall not affect any action taken on any thing done or suffered there-under.-

It may be pointed out that `Civil Servant' was not defined in the Government Servants (Efficiency and Discipline) Rules, 1960 or any other statute in force at that time, whereby two distinct categories of Government Servants were created viz `Civil Servants' and `workmen'. `Civil Servant' has been defined for the first time in Civil Servants Act, 1973, whereby some Government Servants defined as workmen have been taken out of the category of the Civil Servants.

4. Mr. Syed Fasahat Hussain Rizvi has contended that the workmen working in the appellant's Department had been allowed to form `Trade Union' under the I.R.O., 1969, which fact is also admitted by Mr. Sultan Ahmed Khan. He contends that the Government has purposely not framed any Efficiency and Discipline Rules for the workmen employed by various Departments of Government and have left them to be governed by the relevant labour laws. He contends that this argument gets support from the fact that Government allowed the workmen working as Government Servants to form Unions and recognised their unions. Mr. Rizvi further contends that even if it is held that Standing Orders Ordinance is not applicable to the case of respondent, still tile enquiry conducted by the Enquiry Officer on the basis of whose report the appellant was dismissed was not fair as only the respondent was examined by the Enquiry Officer and no other witnesses were examined on behalf of the prosecution. Mr. Sultan Ahmed Khan contended, that the respondent had admitted his guilt in Ex.R/3. Mr. Syed Fasahat Hussain Rizvi has contended that statement Ex.R/3 was obtained from the respondent by coercion by his superiors whereas in reply to the charge-sheet ExA/3 the respondent had clearly stated that he was asked by the Postmaster to receive the money order in his absence and he had given this amount to Postmaster.

5. It appears that no regular enquiry was held by the Enquiry Officer, except that statement of the respondent was taken which has been produced as R/12. In this statement he has stated that whatever statement he had made in reply to the charge-sheet should be taken as statement and the incriminatory admission should be considered as void and that he was innocent. Admittedly neither postman was examined before the Enquiry Officer, nor the complainant who had given Rs.1,000 to the respondent after respondent was A examined. This statement of Enquiry Officer R/12 cannot be considered as a statement admitting guilt.

6. The question that requires consideration is two-fold firstly whether the Standing Orders Ordinance is applicable to the case of the respondent and secondly if it is not applicable, whether still the respondent could move the Labour Court under section 25-A to get relief.

7. Even if for the sake of arguments, it is held that the Government a Servants (Efficiency & Discipline) Rules, 1969 are still applicable to those categories of employees of appellants, who de not fall within the definition of Civil Servants, still such category of Government Servants would be workmen and as such provisions of I.R.O., 1969, would be applicable to then:. Such employees, including the present respondent, could seek relief under section 25-A of I.R.O., 1969 if any right guaranteed to him under any law or settlement or award is infringed. The Government Servants (Efficiency and Discipline) Rules, 1960 being Statutory Rules have got force of law and lay down the procedure under which the enquiries are to be, held against the Government Servants. The respondent had a right that the said rules be observed while holding enquiry against him.

8. Under Rule 6-A(3) the `Enquiry Officer shall hold an enquiry at which oral evidence shall be heard as to such of the allegations as are not admitted and the accused shall be entitled to cross-examine the witness against him'. In the instant case this rule does not appear to have been complied with. As pointed out above the main witnesses against the respondent namely the Postmaster and the Complainant were not examined by the Enquiry Officer nor was the respondent given any chance to cross-examine them. Even Enquiry k Officer was not examined before the learned Labour Court. The respondent has thus been denied his legal right to have witnesses against him examined and to exercise right of cross-examination. He has not admitted his guilt before Enquiry Officer. The Enquiry Officer, from his report which has been produced as Ex.A5(1), does not appear to have applied his mind to the facts of the case. The order of dismissal passed on the report of such enquiry is not tenable under the law and has rightly been set aside by the learned Labour Court.

9. The appeal is, therefore, dismissed.

H.B.T./1977/Lb. S ?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.