' AKBAR M. MEMON (MEMBER).---Appellant, hereinabove, who was lastly working as Assistant with the respondents, has challenged the dismissal order dated 21-5-1999 passed by the respondent.
The order in question is reproduced hereunder: "We refer to the charge-sheet No,ARS/7020/SKP-02 dated, 8th March, 1999, served upon you for an act of misconduct under Standing Order 15-3 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and subsequent Enquiry Notices dated 2nd and 12th April, 1999.
' Upon conclusion of the enquiry held on 20-4-1999 the Enquiry Officer has submitted his findings holding you guilty of the charge of misconduct as contained in the above referred charge sheet.
The Management has gone through the enquiry proceedings and findings of the Enquiry Officer and concurs with the same.
' As the charge of misconduct leveled against you has been duly established, therefore, it has been decided to award you the penalty of dismissal. Consequently, you are hereby dismissed from the service of the Company with immediate effect.
' You are directed to deposit Company's Identity Card, Medical Folder and/or any other Company's property in your possession to Installation Manager, Shikarpur Terminal.
' Your settlement of accounts shall be duly processed upon compliance of para. 4 above.
' You may collect your dues, if any, from Payroll Section, PSO House, Karachi."
2. Mr. Abdul Ghafoor Mangi, learned counsel for appellant has contended that the appellant was appointed by the respondents as Assistant on 11-7-1996 on probation for a period of three months and as per clause 6 of the appointment letter he stood automatically confirmed as no adverse report was ever made against the appellant while serving the respondents during that period. He has, however, contended that while working as Assistant at Shikarpur Terminal his explanation was called for in respect of missing of S.D.D. Which was replied but the same was not considered on which inquiry was ordered. He has contended that due to some mischief in the office he has been involved in this case as the S.D.D. Was misplaced which was subsequently traced out and when it was taken to the Installation Manager, he was asked by him to put his signature on the back-side of the S.D.D. As a token of having stolen the same. He has contended that during the course of inquiry he had denied the allegations, then too, he was held guilty and dismissal order was issued.
He has contended that at the most it was a clerical mistake for which punishment of dismissal was too harsh. He has contended that no final Show-cause Notice was issued, no inquiry report was supplied and no personal hearing was given to him which shows that he was condemned unheard.
At the same time, he has contended that other incumbent whose explanation was also called for was warned and is still serving the respondents. He has further contended that no loss has been sustained by the respondent-Company and the appellant could not have deposited the S.D.D. In has account. Touching the legal aspect of the case, he has contended that section 15(3)(b) of the Standing Order Ordinance doesn't apply as it is neither a case of theft nor misconduct mens rea is to be seen. At the same time, he has contended that the General Manager is the competent authority whereas Department Appeal has been rejected by the Senior General Manager (AL&HR).
He has contended that instead of rejecting the Departmental Appeal, the same ought to have been sent to the Managing Director when the General Manager was of the opinion that it was a case of dismissal. In such circumstances, he has contended that the appellant has been made victim of some conspiracy in the office, as such, impugned order be set aside and he be reinstated in service with all back-benefits.
3. Mr. Raja Haq Nawaz, learned Counsel for the respondents, at the very outset, has contended that appeal is time-barred. He has contended that the order was passed on 21-5-1999 whereas the appeal has been filed on 12-8-1999, as such, the same is barred by 53 days. In support of his contention, he has placed reliance on 1999 SCMR 197. He has also referred to photocopy of judgment of Hon'ble Supreme Court in C.P. No, 2048-L, 2050-L and 2051-L of 1989 and also PLD 1999 SC 692. He has further contended that final Show-cause Notice was not necessary in the circumstances of the case and in this connection, he has placed reliance on PLD 1981 SC 275, 1991 SCMR 1237, PLD 1968 Karachi 422 and PLD 1976 SC 530. At the same time, he has contended that the appellant has been dismissed from service on the basis of paras 6 and 14 of the terms and conditions of the appointment letter. He has contended that full-fledged inquiry was conducted where officers of the respondent-Organization were examined and the appellant was afforded full chance to cross-examine the witnesses and since the case stood fully proved, the order passed by the respondent-Organization is not liable to be set aside as there is no infringement of terms and conditions of service contract. Even otherwise, he has contended that he respondent-Company is a commercial organization and the appellant has been dealt with according to the doctrine of Indoor Management, as such, Civil Servants Act and rules made there under do not apply to the case of the appellant. Lastly he has contended that other enquiries were also pending against the appellant, but since he was dismissed on the report of first enquiry, no further action was taken against him. In support of his contentions, he has placed reliance on PLD 1956 Karachi 315, PLD 1970 Lahore 25, 1985 CLC 178 and 2000 SCMR 506.
4. Mr. Abdul Ghafoor Managi, learned Counsel for the appellant, in reply, has contended that only difficulty was that of reconciliation otherwise it is not a case in which allegation of misappropriation could have been alleged against the appellant.
5. After hearing arguments of the learned counsel appearing for the parties we haye gone through the entire appeal file and so also the authorities cited by Mr. Raja Haq Nawaz, Advocate of the respondents.
6. The case in hand is outcome of misplacement of S.D.D., which was sent by a dealer, but the same was not accounted for by the appellant due to which it was alleged that the same was stolen by him. Inquiry papers reveal that the said S.D.D. Was traced out and was taken by the appellant to the Installation Manager akr g with Mr. Ali Mehr, Union representative where the Installation Manager obtained the signature of the appellant on the back side of the S.D.D. No, doubt, the story put forth by the appellant that his signature was obtained under coercion and with a promise that the Installation Manager would save his job due to which the appellant put his signature on the back side of the S.D.D., but this part of the story has not been believed by the Enquiry Officer. However, there is no denial of the fact that the signature of the appellant was obtained by the Installation Manager on the back side of the S.D.D. And in such circumstances, mens rea element is to be seen Admittedly the S.D.D. Was in favor of the respondents and the same could not have been encashed per bearer and at the best it could have been deposited in the account of the respondents and none-else. At the most if there was any element of theft or misappropriation the draft in question could have been given to the dealer by the appellant which too could have been encashed when such clearance certificate was issued by the respondents.
Throughout it has come in the papers that S.D.D. Was not traceable and when it was traced out, it has been said that it was stolen by the appellant for which act the Installation Manager obtained his signature on the back side of the S.D.D. Whatever may be the story, we are of the view that the signature of the appellant was obtained under coercion and promise and in such circumstances the so-called admission on the part of the appellant cannot be considered to be an outcome of a consent or free will of the appellant.
7. No doubt there are cuttings in the record which have been alleged against the appellant, but the same appears to be result of non-maintenance of proper record as in case had there been proper reconciliation there would have been no case of interpolation/overwriting in the figures as admittedly 30,000 liters were dispatched on that day by three Tankers carrying 10,000 liters each, but when the persons available in the office were not able to trace out the S.D.D. For the third Tanker, the over-writing might have been made showing dispatch of two Tankers carrying 15,000 liters each. At the same time, it is the fault of the office as the procedure is that whenever Tanker enters along with requisite S.D.D. Such mention is to be made on the entrance gage and when it is dispatched after receiving the documents then such entry is also made at the outer gate and any defect arising out of such a transaction prove that there was lack of reconciliation as well as supervision for which only the appellant has been made scapegoat.
8. Coming to the legal objection raised by the learned counsel for the respondents that the appeal is hit by 53 days as the appellant was required to file appeal before this Tribunal directly after passing of the impugned order, we are of the view that for the purpose of coming to this Tribunal filing of the Departmental Appeal is made mandatory as required under section 4 Service Tribunals Act, 1973. At the same time, it will be pertinent to place reliance on case of Narian Das v. Federation of Pakistan reported in 2002 SCMR 82 where it was held: "(c) Service Tribunal Act (LXX of 1973)--- ---Ss. 2-A & 4---Appeal before Service Tribunal---Right of filing departmental representation--- Person, who was deemed to be a civil servant for purposes of Service Tribunals Act, 1973 could make a representation before competent Authority, even if no departmental appeal had been provided."
' Similarly in a case reported in 1998 TD (Service) 83 it was held: "Appeal before Tribunal not maintainable when failed to file Department Appeal".
9. Even otherwise, in a case reported in 2002 PLC (C.S.) 1083 in the case of Abdul Hafeez Abbasi v.
P.I.A.C. It was held at placitum (b) that in absence of statutory rules governing the affairs of the service of the employees which could not be legally compelled to file appeals/representations to the authority or next higher authority for approaching the Service Tribunal for redressal of the their grievance. Since word 'could' has been used, as such, it was necessary for the Appellant to have filed his Departmental Appeal. Following the above legal position, it could not be said that the appeal in hand is barred by limitation as he had filed his Departmental Appeal in the first instance thereafter he approached this Tribunal by filing his service appeal. Even otherwise, the respondents had also remained silent in. The matter when they received the Departmental Appeal. In case it was made to a wrong forum' or it was not be sent to the respondents, then it should have returned back following their rules. In such a situation, the legal position should have been followed by the respondents, but it was not done. On this point, we are fortified by view taken by the Hon'ble Supreme Court reported in 1992 SCMR 1789 where it was held:- "(b) Service Tribunals Act (LXX of 1973)-=- ----S.4---Civil Servants Act (LXXI of 1973): S.22---Appeal before Service Tribunal---Limitation--- Representation by civil servant before Authority---Filing of---No departmental appeal having been provided. Chairman of Authority to whom departmental appeal was submitted, in all fairness, could treat such appeal as representation and pass on same for disposal to Authority next above him. Appellant could not be made to suffer for failure of Authority, in failing to do what he was expected to do---Appellant's appeal to authority was to be treated as representation and same having not been decided, one way or the other, after expiry of ninety days, he justifiably preferred appeal before Tribunal which was within time---Service Tribunal fell into error to hold that such appeal was time-barred--Appellant's appeal before Service Tribunal would be deemed to be pending to be disposed of afresh in accordance with law."
10. Raja Haq Nawaz, learned counsel for the respondents has also taken a plea that since the respondents have no statutory rules, principle of master and servant has to apply in the case of the appellant and he could not have filed appeal for reinstatement and at the most he could have filed suit for damages, as such, this Tribunal has no jurisdiction. In this connection we simply place reliance on a latest dictum of law laid down by Hon'ble Supreme Court in the case of Abdul Hafeez Abbasi v. P.I.A.C. Reported in 2002 PLC (C.S.) 1083 which reads: "(1) Service Tribunals Act (LXX of 1973)--- ----Ss.2-A, 4 & 5---Constitution of Pakistan (1973), Art, 212 (3)----Employees of Pakistan International Airlines Corporation---Master and servant, relationship of---Termination of service without show-cause notice---Service Tribunal ordered the re-instatement of employees--- Contention of the Corporation was that service of the employees were governed by the principle of Master and Servant, thus, Service Tribunal had no jurisdiction to grant the relief of re-instatement, but in such situation at the best, employees would have claimed damages--- Supreme Court repelled the contention while holding that it was wrong to contend that on the theory of the master and servant relationship, Service Tribunal has no jurisdiction to reinstate an employee, whose service had been illegally terminated."
' This rule has even been followed in the case of Saleem Mustafa Sheikh and Narian Das, as such the arguments advanced by Mr. Haq on this point are devoid of merits.
11. At the same time, it has been contended by the learned counsel for the respondents that the appellant was a contract employee, as such no vested right had accrued to him in case of dismissal from service. In this connection he had particularly placed reliance on the case of Anwar Ali Sehto, reported in PLD 2002 SC 101. In all fairness we disagree with the arguments put forth by Mr. Haq learned counsel for the respondent as the appellant initially appointed on probation as is evident from letter dated 11-7-1995. Para 6 of the appointment is very material, as such, the same is reproduced hereunder.
"6. On successful completion of the probationary period you will be confirmed as a permanent employee. Thereafter, to terminate your employment, one month's notice or pay for one month in lieu of notice will be required from either side. Such notice or the pay in lieu of notice will not be required if your services are terminated for misconduct."
' The appointment was made in the year 1996' but no document whatsoever has been produced, which could show that the probation period was terminated or the same was extended. Looking to the said para., we are of the view that since no adverse report is available, as such following para. 6 of the appellant was deemed to be a permanent employee, therefore, the arguments that he was a contract employee is also devoid of merits. Even the doctrine of Indoor Management could not be applicable in this case as sometimes said clerical mistakes do occur where there is over-writing or cutting even in the Cash Books, but such harsh type of action cannot be taken under the garb of doctrine of Indoor Management.
12. We have gone through the inquiry proceedings minutely. The Enquiry Officer has not believed the word of the appellant and had given preference to the words of the witnesses though it has come on record that the signature of the appellant was taken by the Installation Manager on the back side of the S.D.D. The circumstances stated by the appellant ought to have been taken into consideration by the Enquiry Officer. But it was not done. In case the reconciliation had been made on the same day, this would have not been the position. At the same time, the word of the appellant that the account had tallied with gate sheet was not considered to be proper, Subsequently, when the missing S.D.D. Was traced out, it was being said that it was stolen by the appellant on which he has been imposed the penalty of dismissal from service on the allegation of theft/fraud, which, in our view, has only been made to save some body in the office and the glaring example is that of Muhammad Hanif, who has simply been warned, otherwise, the stock card was delivered by the appellant to one Mr. Tanvir Soomro, who had tallied the same on that very day. We don't want to enter into any sort of , discussion further as Installation Manager at that time was Mr. Abdul Waheed Soomro whereas the other employee Mr. Tanvir Soomro was also of the same caste, but the present appellant has been roped in the alleged incident. The respondents have tried to get rid of the appellant as during the course of arguments mention has been made in respect of other inquires which clearly speak of mala fide intention of the respondents. Even otherwise, the impugned order dated 21-5-1999 whereby the appellant was imposed major penalty of dismissal from service shows that appellant was dismissed under Standing Order 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 where sub-para (3) ibid makes mention of theft, fraud or dishonesty in connection with employer's business or property, whereas the point which is to be taken into consideration relates to misplacement of S.D.D. Which was, in fact, in the name of the respondent-Company, and the' S.D.D. In question could neither be enchased nor the same could have been deposited in the account of the appellant, as such, the said charge is also devoid of merits as there is D absolutely no element of mens rea of the appellant. In case the S.D.D. Was misplaced and was subsequently traced out but the story which has been put forth is that the same was produced by the appellant whereafter his signature was obtained on the back side of the S.D.D. Due to which he has been roped with the allegation of stealing the S.D.D.
13. As a result of the above, we are of the considered opinion that the so-called admission of appellant in the shape of putting signature on the back side of S.D.D. Was obtained by the Installation Manager under coercion which was without consent or free-will, as such, the appellant cannot be roped with charge of having committed theft of the said S.D.D. At the same time, we are of the view that the inquiry which was conducted by the Enquiry Officer was outcome of a biased mind due to which the entire responsibility has been trusted upon the appellant though there were some others who were also responsible for reconciliation and tallying the dispatch transaction with the gate sheet. We are also conscious of the fact that the respondents had made up their mind to initiate other inquires which speak of the mala fide intention on their part, as such, we, while allowing the appeal, set aside the impugned order and direct the respondents to reinstate the appellant on the same position from which he was dismissed from service with 50% back-benefits looking to the length of service of the appellant and to release the said benefits within four months of this judgment.
14. With this observation appeal in hand stands disposed of with no order as to costs. Parties be informed accordingly.