JAVED AHMED Versus Messrs ALLIED BANK OF PAKISTAN LTD

ORDER

1. Applicant was admittedly permanently employed as messenger and was lastly posted at Latifabad Branch of the respondent. He was also covered by the provisions of Wage Commission Award as also the Standing Orders Ordinance of 1968. He fell ill and so he remained under the treatment of Dr. Aziz Khan Pathan from 5‑10‑1986 to 30‑10‑1986 for which he gave necessary intimation. He was then admitted in Liaquat Medical College Hospital, Hyderabad where he remained as indoor patient from 1‑11‑1986 to 1‑1‑1987 and he was advised one month bed rest. He again‑remained under the treatment of Jinnah Hospital, Karachi from 1‑2‑1987 to 9‑6‑1987. He was said to have been charge‑sheeted on 23‑10‑1986 and then one enquiry was held against him on 28‑2‑1987 but after recording his statement only, he was allowed to go by the Enquiry Officer without further action or direction as he was undisputedly ill. None was however examined in that enquiry in his presence. He was again charge‑sheeted on 22‑4‑1987 but it was not served on him because he was already a patient of Jinnah Hospital. He however submitted his reply dated 27‑6‑1987 but without holding any enquiry whatsoever, he was dismissed on 30‑6‑1987. He accordingly preferred departmental appeal dated 3‑8‑1987 and in spite of issuing reminders dated 24‑8‑1987 and 13‑9‑1987 he was not replied and so he sent grievance notice dated 3‑10‑1987 and then filed the present petition for his reinstatement with consequential benefits.

2. In its vague reply statement, it has only been pleaded that the applicant was absent from 5‑10‑1986 and after service of one charge‑sheet an enquiry was conducted on 28‑2‑1987 wherein the applicant had assured of resumption of duty on the following day. Since he did not fulfil his promise, he was again charge‑sheeted on 22‑4‑1987 and so after holding enquiry against him he was rightly dismissed from service. His grievance petition has been pleaded as time‑barred.

3. The applicant alone examined himself in support of his case, while the respondent tendered M/s. Syed Usman Ali, Zonal Chief, and Abdul Ghaffar Khan, Enquiry Officer in evidence on behalf of the respondent. I have heard Mr. Muhammad Bashir Awan, Advocate for the Applicant, and Mr. R. M. Mushtaq, learned Counsel for the Respondent. I have also examined the material on record.

4. The first submission, which has been advanced before me on behalf of the applicant is that the entire proceedings against the applicant were bad in law and without jurisdiction because admittedly the Zonal Chief of the respondent was an incompetent person to proceed against the applicant. Mr. Mushtaq has not controverted this plea of fir. Awan but has only submitted that since this point was not agitated in the grievance notice or petition, it cannot be considered. I feel that the submission of Mr. Mushtaq is wholly misconceived and against record as well. It has been constantly pleaded by the applicant that the impugned action was wholly illegal and without jurisdiction and so it cannot be argued on behalf of the respondent that such a plea was never advanced. Moreover, it is a pure question of law based on the admitted factual position and so it can be raised at the time of arguments. The Zonal Chief examined by the respondent in this Court has candidly admitted in his cross ?examination that the Zonal Chief of Hyderabad was not competent to take any action against the applicant or to dismiss him and further that it was only the Head Office which was competent to pass the impugned order. In view of this admitted position, since the impugned action was taken by the Zonal Chief and who was incompetent, the impugned dismissal order 'is not sustainable in law and has to be set aside on this score alone.

5. The second point urged by Mr. Awan is that in fact no enquiry was conducted and a false proceeding was prepared by the Enquiry Officer. To substantiate his submission he has referred to the proceedings and submits that admittedly neither the proceedings nor the report do show when enquiry was actually conducted and when the report was submitted to the Zonal Chief. Not only this but the record also falsified the Enquiry Officer in regard to his holding enquiry on 15‑6‑1987 by the attendance sheet said to have been produced before the Enquiry Officer. This attendance sheet pertains to June 1987 and mentions attendance upto 28‑6‑1987. Neither the Enquiry Officer could explain this position nor Mr. Mushtaq has been ‑able to say anything about it. If the enquiry was conducted on 15‑6‑1987 as pleaded by the respondent, the attendance sheet showing attendance upto 28‑6‑1987 could not have been produced before the Enquiry Officer. This confirms that in fact no enquiry was conducted at least prior to 28‑6‑1987 and so the impugned action was based on no enquiry. Accordingly, the impugned order is liable to be set aside on this second ground as well.

6. The third point canvassed before me is that according to the reply statement the applicant was charge‑sheeted in 1986 and enquiry was conducted on 28‑2‑1987. No such proceedings have been produced in this Court. The proceedings on record however show that the Enquiry Officer had conducted the enquiry on the charge‑sheet dated 22‑4‑1987. In fact, according to the respondent, the applicant was served by five different charge‑sheets, all in regard to unauthorised absence, but nothing can be said on which charge‑sheet the applicant was actually proceeded against and was finally dismissed. 11 is an admitted fact that the applicant remained ill and also as indoor patient from time to time during the period he was said to be absent from duty. Accordingly, he could not have been treated as unauthorisedly absent because his absence was certified by the medical certificates. Moreover, as has rightly been submitted by Mr. Awan, not only the leave on medical ground could not be refused under Wage Commission Award but further that his leave had already been treated as leave without pay and once such period of absence was condoned, the applicant could not have been proceeded against. In any case, since the applicant was absent because of his serious illness and since his illness was duly certified by the competent Medical Experts and since the impugned dismissal order was passed without any enquiry as also by an incompetent person, his dismissal order is unwarranted and is liable to be set aside.

7. In view of the above, I accept this petition and direct the reinstatement of the applicant forthwith with consequential benefits.

8. A.E./1218/Lb.S ???????????

9. Petition accepted.