MUHAMMAD ASGHAR Versus PAKISTAN TOURISM DEVELOPMENT CORPORATION
This is a petition under section 25‑A I.R.0..1969 filed by Muhammad Asghar Khan challenging the dismissal order, dated 12‑11‑1980 and a final order, dated 30‑6‑1983 passed by the respondent. The brief facts as mentioned in the petition are that the petitioner was employed as a Junior Clerk on 17‑3‑1977 and was confirmed in that post on 11‑6‑1977. The relevant document is Exh. P.I. The petition states that the petitioner was performing his duties diligently and efficiently and there was no complaint against him throughout his service. The petitioner suddenly received a letter, dated 14=1‑1980 in which it was alleged that he‑had drawn the, salary of one Zulqarnain, a Waiter in the P.T.D.C. Motels at Gilgit, for the months of October and December, 1979 on the authority letter produced by him though he had been absent without prior approval w.e.f. 24‑10‑1979. Zulqarnain Waiter had been marked present w.e.f. November 1979 in the Attendance Register being maintained by the petitioner against serial No. 19. It was alleged that Zulqarnain had been marked present though there was no transfer order transferring him from Gilgit ‑to the P.T.D.C. Secretariat. The petitioner submitted his reply Exh.P.3 on 17‑1‑1980 to the letter, dated 14‑1‑1980 Exh. P.2. He stated therein that he had acted in accordance with the policy of the previous management and that his explanation had been called for after three months. The explanation of the petitioner was not considered satisfactory and, as such, an Inquiry Officer was appointed., The inquiry proceedings are Exh.R.I. and the inquiry report is Exh. R.3. According to the petitioner he was not found guilty of all the charges but in spite of that he was dismissed from service vide order, dated 12‑11‑1980 Exh. P.4. The management assumed that all the charges had been proved against the petitioner in the domestic inquiry. Against that order the petitioner filed a departmental appeal to the Deputy Managing Director vide Exh.P.6. The appeal was rejected on 30‑6‑1983 vide Exh. P.7. Then the petitioner served a grievance notice on 26‑9‑1983 vide Exh.P.8. The petitioner then tiled an appeal before the Federal Service Tribunal but it was returned to him to be placed before a Court of competent jurisdiction vide order, dated 12‑10‑1983.
2. The respondent submitted written reply alleging therein that no grievance notice had been served and, therefore, the pet1ftion under section 25‑A was not competent. It was also alleged that the petition was time‑barred because Muhammad Asghar had been dismissed from service on 12‑11‑1980 whereas he filed the application on 18‑11‑1983. The reply on merits was that the petitioner had marked Zulqarnain present and he was available in Rawalpindi and had not been posted there either.
3. The parties led evidence on 18‑1‑1986. The predecessor of this Court dismissed the petition on the ground that the grievance notice had not been served. The petitioner then filed an appeal before the Punjab Labour Appellate Tribunal., Lahore. The honourable Tribunal accepted the appeal on 18‑4‑1986 and was pleased to remand the case for decision afresh after permitting the parties to lead additional evidence. The petitioner then submitted an application for summoning certain witnesses but all the witnesses were not permitted to be examined, because it was necessary to confine the proceedings to the remand order, dated 18‑4‑1986 passed by the Punjab Labour Appellate Tribunal, Lahore.
4. In post remand proceedings the petitioner examined Mst. Hajra Dar as P.W.2 whose statement was recorded on 18‑10‑1987. The respondent did not lead any evidence on this point after the case had been remanded.
5. After evidence of both sides had been closed I heard arguments of both sides and have carefully attended to the record. Two preliminary objections must be dealt with first of all. First is that no grievance notice was served without which the petition under section 25‑A is incompetent. The second is that the petition is time‑barred and is liable to be dismissed on this ground alone. As regards the first objection, it is necessary to advert to the statement of Mst. Hajra Dar P.W.2 recorded after remand order. She stated that she had received an application written in urdu from the petitioner. She further states that she made an entry of this application in the Diary and had it sent to the Manager. She further states that she had brought with her the Despatch Register in which the application is mentioned at item No.83, dated 28‑9‑1983. Since the Manager ordered that the application should be filed, therefore, it was filed. This witness was subjected to lengthy cross‑examination. The relevant d6citment is Exh. P.8 and the witness has categorically stated that she had received it on 20‑10‑1983 and had thereafter made an entry. She stated that the application Exh. P.8 was actually received on 26‑9‑1983 but its entry was made in the register on 20‑10‑1983. She is unable to say why she made the entry so late. She does not remember whether the application was lying with her all this time or not. She had been cross‑examined with respect to other entries but those are not relevant for the purposes of this case. She has denied other suggestions.
6. It is clear from a reading of the statement of Mst. Hajra Dar that she had received Ex. P.8 but it is not certain whether it was attended to or not. It was the duty of the management to take notice of it if it was brought to their attention by Mst. Hajra Dar. If she failed in her duty then it was not fault of the petitioner. At this stage it is important to mention that Mr. Nisar Ahmad P.W.2 denied any knowledge of Mst. Hajra Dar. It is incredible that while Mst. Hajra Dar appeared alongwith the register and deposed fairly confidently before this Court yet Nisar Ahmad stated that he did not know her at all. I am, therefore, unable to accept the contention of the respondent that no grievance notice was served at all by the petitioner. It has been proved from the mouth of Mst. Hajra Dar and just because she made a late entry would not go to show that the petitioner was at fault.
7. With regard to the other preliminary objection that the petition was time barred, it is necessary to recall some facts. The petitioner was dismissed on 12‑11‑1980 vide Exh.P.4. He filed a departmental appeal on 6‑12‑1980 vide Exh. P.6. The appeal was dismissed on 30‑6‑1983 vide Exh. P.7. The petitioner has relied on a booklet in which it is stated that in terms of Rules 105 a remedy is provided by way of departmental appeal. Thus, an appeal is provided and since the petitioner filed an appeal before the Service Tribunal which was returned to him, it cannot be said he was not pursuing his remedy diligently. Soon after the return of the appeal by the Federal Service Tribunal the petitioner approached this Court. I am, therefore, of the view that the petition before this Court was within time. The departmental appeal was rejected on 30‑6‑1983 and the grievance notice was served on 26‑9‑1983 vide Exh. P.8. The petition was filed in this Court on 18‑10‑1983. These facts would bring the case, of the petitioner within law of limitation.'"
8. As regards the merits of this case I find that though the inquiry was properly held yet the inquiry Officer has come to the conclusion that in his opinion Asghar petitioner cannot be held responsible for the mistakes of others. This would go to show that the Inquiry Officer had not held the petitioner guilty. Yet the Appointing Authority proceeded to dismiss the petitioner on the ground that the charges levelled against the petitioner had been proved. If the competent authority was of the opinion that the charges had been proved it was necessary to give the petitioner another notice asking him to explain why he should not be dismissed from service. This has been so held in Muhammad Ehsan's case P L D 1963 Lah. 265. In that case it was held that if the competent authority differs with the findings of the Inquiry Officer then a fresh notice must be given to the petitioner to explain his position. There is no evidence that such a notice was served. Learned counsel has relied on 1980 P L C 930 in which it has been held that if there are two or three charges against the petitioner and two of them do, not amount to misconduct then no action can be taken against him on the i assumption that all tile charges stood proved against him.
9. The counsel for the respondent has argued that the evidence of Mst. Hajra Dar does not inspire any confidence and should, therefore, not be relied upon. I have already attended to this point arid found that the evidence of Mst. Hajra Dar can be relied upon for the purposes of showing that the petitioner did serve grievance notice. As rcgards the point of limitation. I have already come to the conclusion that the petition is within time. The inquiry does not show that the petitioner is guilty.
10. I have carefully considered the material on record. My opinion is that the petitioner was wrongly dismissed from service. The allegations against him were not proved. In the light of all the circumstances of the case I accept the petition.
The result is that the petitioner, is reinstated in service with back benefits.
N.Y.H./Lb. p
Petition allowed