RIAZ MUHAMMAD Versus THE PAKISTAN RAILWAYS
ORDER
1. The applicant was employed as Sub‑Fire Master in C & W Shops, Hyderabad. He was performing skilled and manual duties which are specifically specified in para 2 of the petition and so he claims himself to be covered by the provisions of Standing Orders Ordinance 1968. On 2‑5‑1984 he was charge‑sheeted for remaining absent from 16‑4‑1984 without any leave or intimation. It was duly replied and then after some proceedings he was dismissed from service in December, 1984. This order was subsequently set aside by this Court in petition No.13 of 1985 and he was ordered to be re‑instated with an option to hold a fresh enquiry.
2. It appears that the department held a fresh enquiry and after issuance of second show‑cause notice dated 26‑7‑1986, he was again dismissed by order dated 23‑8‑1986, and which has now been assailed in this petition. After preferring departmental appeal on 6‑10‑1986 and serving grievance notice dated 12‑11‑1986 he has filed this petition for his re‑instatement with back benefits. The grounds urged in this petition in nut‑shell are that the charge‑sheet was issued by an incompetent person and further that the enquiry was also ordered by some un-authorized person and so the impugned order is not warranted by law. The dismissal order was also said to have been passed by an incompetent person. It has also been pleaded that in fact the point before the Enquiry Committee was in regard to the time of the commencement of duty and not the absence from duty and which point was never appreciated either by the Enquiry Committee or by the person who ordered the dismissal of the applicant.
3. In the reply statement, it has specifically been pleaded that the applicant did not come within the category of workman inasmuch as he was performing the duties of a Supervisor and never performed any skilled or manual duties. Accordingly, he was not covered by the provisions of Standing Order Ordinance, 1968. On merits it has been pleaded that the applicant was charge‑sheeted for absconding from duty from 16‑4‑1984 and such charge‑sheet was issued by a competent person in accordance with Railway Servants (E&D) Rules of 1975. Enquiry was also rightly ordered by a competent person. Since the reply of the applicant was unsatisfactory, enquiry was conducted against him and wherein he was afforded full and fair opportunity of defence. On the basis of the findings of the Enquiry Committee against the applicant, a second show‑cause notice was also issued and then he was rightly and legally dismissed from service by a competent authority and so the said order cannot be questioned in these proceedings particularly when this Court has no jurisdiction.
4. In support of his case, applicant appeared as his own witness and he was duly cross‑examined on behalf of the Respondent. M/s Bashir Ahmed, Head Timekeeper, Muhammad Wasif Malik, Enquiry Officer and Mirza Muhammad Sabir Raza, Head Clerk C&W Shops, Hyderabad were tendered in evidence on behalf of the Respondent. After evidence, I have heard Mr. M. Bashir Awan, Advocate for the applicant, and Mr. M. Ishaque Abbasi, Counsel for the Respondent. I have also examined the material on record.
5. Mr. Abbasi has vehemently contended that this application is not maintainable for the simple reason that the applicant is not a workman and provisions of Standing Orders Ordinance are not applicable to him. He has referred to some pieces of evidence to substantiate his submission and submitted that according to this material on record it has been established that the applicant was only a Supervisor and cannot be brought in the category of a workman. Mr. Awan, on the other hand, submits that the applicant was undisputedly performing skilled and manual duties. He was supposed to check, repair and maintain Fire Fighting Equipments and further that he was also covered by the provisions of Workmen's Compensation Act as also Factories Act. Learned counsel also submits that because of this factual position, the applicant was always treated by the respondent as workman and he was accordingly dealt with under the provisions of Factories Act.
6. I have given my anxious consideration to this legal proposition and I have no hesitation to hold that the applicant has been a workman and his status as such cannot be assailed in these proceedings. Admittedly, in earlier proceedings he was held to be a workman and so his re‑instatement was ordered by this Court. The said order attained finality because it was never assailed in appeal and, on the contrary, fresh enquiry was held by the respondent in accordance with the directions of this Court. Having once accepted this position and acted according to the directions of this Court, the respondent cannot be permitted to re‑open this issue or to question the jurisdiction of this Court. In any case, even the material on record does prove that the applicant was performing skilled and manual duties and so he cannot be excluded from the category of a workman. This submission of Mr. Abbasi is, therefore, repelled.
7. Reverting to the merits of this case, it has been contended by Mr. Awan that the applicant admittedly never remained absconder but in fact the dispute from the very beginning is in regard to the timings of the duties of the applicant. According to the applicant, he was to start his duties from 8 A.M. while the plea of the respondent is that he was to perform his duties from 7 A.M. Mr. Awan submits that there is no material on record to show that the applicant had actually remained absent. Morever, his presence on duty during the disputed period was also fully established by the evidence of an independent and neutral person Mr. Ghulam Mustafa Niazi. He further submits that according to the Head Timekeeper on whose report the charge‑sheet was issued, the applicant had been attending the workshop at about 8 A.M. and so it cannot be said that the applicant remained absent from duty. P.W. Mirza Sabir Raza had no personal knowledge and so his evidence is of no legal value. In regard to the enquiry, the learned counsel submits that the Enquiry Officer was wholly partial. Moreover, he had a personal knowledge about the factual position of this case and so he was not competent to hold the enquiry, Besides this, he never appreciated the actual point involved but only acted in accordance with the wishes of the management. Mr. Abbasi, on the other hand, submits that the applicant had never complained about the dispute in regard to the timings of his duties and so he cannot raise this dispute at this belated stage. Moreover, mere coming to office or roaming about in the workshop does not mean that the applicant was physically on duty. The evidence on record, according to Mr. Abbasi, has established that the applicant remained absent willfully from 16‑4‑1984 and so he was rightly dismissed from service.
8. The record shows that the reply statement in this case was filed only by the Assistant Works Manager respondent No.4 herein and this written statement was subsequently adopted by respondents Nos.1 to 3 as per the statement of Mr. Abbasi learned counsel for the Railways. However, this statement for adoption has not been I signed by any of the respondents. In any case, none of the respondents including the respondent No.4 appeared in this Court to give evidence or to offer themselves for cross‑examination. They also never authorized any person to give evidence on their behalf in this Court. Accordingly, the written statement filed in this Court has to be excluded from consideration.
9. Charge‑sheet was issued on the report of Head Timekeeper Bashir Ahmed, by Assistant Works Manager. The plea of the applicant however, is that this A.W.M. was incompetent to issue such charge‑sheet. As stated above, this A.W.M. did not appear in this Court to clarify his position or authority. No other material has also been brought on record to show that this Officer was competent or authorised to proceed against the applicant. Learned Railways Counsel has placed reliance on R‑9 which is a Notification specifying the authorities to proceed against various classes of railway employees. ‑Though it has not been shown on behalf of the Railways that this Notification has any legal value but even if it is relied upon, still it does not support the respondents. According to clause (3), the employees in NPS‑8 can be proceeded against by Officers of Scale, No.18. Nothing is on record to show that this A.W.M. was in scale No. 18 and was competent to proceed against the applicant. Accordingly, there is a substance in the submission of Mr. Awan that not only the charge‑sheet but even the enquiry letter were issued by an incompetent person and so the entire subsequent action is void and un‑warranted by law.
10. Reverting to the merits the charge against the applicant is that he absented from duty from 16‑4‑1984. The Head Timekeeper Bashir Ahmed has admitted that at least upto 21‑4‑1984 the applicant used to attend duties though after the prescribed time. The plea of the applicant is that his duty hours were from 8 A.M. and when he was marked absent by the Head Timekeeper he submitted an application to the authorities on 28‑4‑1984 but it was never replied, and, on the contrary, the impugned charge‑sheet was issued to him on 2‑5ed984. This contention of the applicant has not at all been disputed on behalf of the Railways at any stage. A number of documents in support of his plea as to the timings of his duties have also been brought on record on behalf of the applicant, the authenticity of such documents has also not been questioned. The defence witness, who is undisputedly an independent person, has also certified the presence of the applicant during working hours during the period in dispute. His statement has also not been assailed in any manner. This being the factual position, it cannot be said that the applicant remained absent from duty particularly when no evidence whatsoever has been led on behalf of the Railways to show that the applicant never performed his duties during the period in dispute. In this view of the matter it is evident that the real dispute was only in regard to the timings of the duties and not the absence of the applicant and so this point ought to have been specifically determined and adjudicated upon by the competent authority. Without deciding this important dispute, and which was specifically raised by the applicant much before the charge‑sheet, the applicant could not have been treated as absent from duty. Accordingly, in view of the evidence on record and the points discussed hereinabove, I would conclude that the applicant was never absent from duty and was illegally charge‑sheeted as also subsequently dismissed from service. Such dismissal order cannot, therefore, be maintained.
11. In view of the above, this application is allowed and the applicant is directed to be re‑instated in service with all consequential benefits.
12. A.A. /980/Lb.S
13. Application allowed