GENERAL MANAGER, PAKISTAN RAILWAYS, LAHORE Versus ABDUL LATIF SHEIKH
DECISION
These two appeals from the contesting parties, against the order of the Labour Court No. V at Karachi arise in the following circumstances.
2. Abdul Latif Shaikh the appellant in Appeal No. 486 of 1991 and respondent in Appeal No. 484 of 1991 was employed as a Mistry in the Railway Department in 1952 and at the material time was working in Grade‑16, as inspector Works Grade‑II.
3. Proper details have not been brought on the record but it emerges that Abdul Latif Shaikh was on leave on medical ground for some considerable time in 1989‑90 and was referred to the Medical Officer of the Department for a report as to whether he was fit enough to report on duty. He was found fit and the divergence in the narration of events starts from here. The petitioner's version is that he had appeared before the ‑ Divisional Medical Officer, Railways, Karachi Cantt who had issued duty Certificate dated 24‑4‑1990, which was submitted to the Department. However, he was not allowed to resume his duty in spite of repeated efforts. On the other hand the petitioner was being pressed to resign from his job which suggestion he declined to accept.
4. While matters stood thus the petitioner read a notice in the Morning News dated 20‑12‑1990 that he had been charge‑sheeted, and that he could obtain the copy thereof within 14 days of the publication of this news. The petitioner made personal approaches and also applied in writing, but in spite of an order dated 1‑1‑1991 issued by the General Manager (Headquarters), Lahore for his posting as Inspector of Works Grade‑II, the petitioner was neither given any posting, nor provided with a copy of the charge‑sheet. Later he came across another notice published in the Daily `Business Recorder' dated 17‑1‑1991, that an ex parte decision had been taken against him and he stood removed from service with effect from 10‑1‑1991. Aggrieved by this order he had submitted a grievance notice which was followed by the grievance petition.
5. The Labour Court by its order, dated 8‑10‑1991 found that the name of the Enquiry Officer had not even been disclosed, and that there was no clear indication that any inquiry had been held at all. There were however notices in the papers galore. It also found that there was no proof of any attempt of actual service on the petitioner and therefore the order of termination was bad in law and liable to be set aside. However, he ordered a fresh enquiry regarding the long period of unauthorised absence which was to be completed within three months. The order ends as follows:‑‑
"On the disciplinary ground the applicant cannot be allowed by this Court to join the duty against the wishes of the respondent till disposal of the enquiry against him as the justification for long absconsion period of about 15 to 16 months had not been brought by him in the notice of the Court. He has not come with clean hands:'
6. The appeal filed by the petitioner calls in question this order of fresh enquiry and the Railway Department has found fault with this fresh opportunity, as according to them the petition deserved an outright dismissal.
7. The salient features of the allegation have not been expressly denied in the Written Reply filed by the Department. On the other hand the order of posting as Estate Inspector (I.O.W. Grade 2) "in his own pay and scale was to be given effect," is explicitly admitted in paragraph 7 thereof.
8. The witness appearing on behalf of the respondent in his cross-?examination admits that the various Annexures detailed by the petitioner were duly received by the office and the few about which he showed ignorance, he had to admit that the same bore the stamp of the D.S. Karachi. It is also admitted by him that the charge‑sheet was never sent to the home address of the petitioner, and there was no proof of any despatch either through postal receipt or otherwise. We are not informed even as to who was the Enquiry Officer appointed. Nor is there any indication that any Enquiry was held and on what dates.
9. There was no averment of any absence from 9‑9‑1989 to 24‑4‑1990 in the Written Reply or otherwise on the record. Mr. Muhammad Ashraf Khan, under the circumstances, rightly maintained that there was no ground made out at all for the publication of the notices, and in that context he referred to the case of Hidayatullah etc. v. Noor Muhammad etc. which is a judgment of the Supreme Court reported in PLD 1986 Quetta 107. There was also reference to the decision from the Lahore High Court in the case of Municipal Corporation, Faisalabad v. Niamat Masih and others 1992 PLC 56 in which it was held that as "there was no proof on the record to show that the service of the enquiry notice was effected on the respondent, the order of dismissal was a nullity in law."
10. The order of a fresh enquiry looking to the state of the record and the evidence led by the Department was hardly warranted. If the Railway Department did not care to bestow the necessary attention to the conduct of the case before the Court, they have to thank themselves for the consequences. However as abundantly made out from the record there was no room at all for a fresh enquiry. I will, therefore, dismiss the Appeal No. KAR‑484 of 1991, filed by the (Department) Pakistan Railways and allow Appeal No. KAR‑4861 of 1991, filed by the appellant Abdul Latif Shaikh. The said appellant Abdul I Latif Shaikh will be entitled to full back benefits.
H.B.T./2061/Lb.S ??????????????????????????????????????????????????????????????????????????????? Order accordingly.