' JUSTICE (RETD.) TANVIR AHMAD KHAN (CHAIRMAN/RITU).---The applicant/petitioner filed this application seeking permission as required under section 20 subsection (15) of the I.R.O., 2002 hereinafter referred to as Ordinance to proceed further in the disciplinary matter against the respondent, inquiry of which has already been completed on 22nd of August, 2005.
2. It is the case of the applicant/petitioner that the respondent was issued a charge-sheet Bearing No, HR/SP/EMP/21416 on 10th of June 2005 for various acts of misconduct within the meaning of section 3(1)(b) read with section 2(b) of Removal from Service (Special Powers) Ordinance, 2000.
The respondent filed reply on 21st of June, 2005 denying all the charges. Since the reply submitted by respondent was not satisfactory as such a full-fledged inquiry was held wherein the respondent was given full opportunity of participation.
3. The respondent tiled a case No,4A(97)/05-K taking exception to the charge-sheet issued against him. The learned Single Member initially granted the restraint order but subsequently through detailed judgment dated 10-8-2005 dismissed the stay application and fixed the case for evidence of the parties.
4. The applicant/petitioner from the very beginning was against the jurisdiction of the learned Single Member in view of the bar placed by section 2-A of the Service Tribunals Act, 1973 as such a Constitutional petition No, CPD 1168/05 was preferred before the Honourable Sindh High Court. A learned Division Bench through its orders dated 26th of September, 2005 has stayed the proceedings before the learned Single Member of the N.I.R.C.
5. The applicant/petitioner after the receipt of the inquiry report issued another show-cause notice on 25th of August, 2005. In the meantime an order dated 4th of October, 2005 was passed by the Commission directing the Deputy Registrar Karachi Bench for holding of referendum in terms of section 20 of the Ordinance, in the applicant establishment. This being the situation the applicant/petitioner cannot proceed further in the disciplinary matter unless and until permission is sought under section 20 (15) of the Ordinance.
6. The respondent has submitted reply and has stated that the matter is pending in the Honourable Sindh High Court. He has also taken exception to the inquiry as according to him the same has not yet been completed.
7. I have considered the contentions and gone through the documents appended with this petition.
8. The plea of the respondent taken in parawise comments that this matter be deferred till the decision of the constitutional petition filed by the petitioner/applicant before the Honourable Sindh High Court is devoid of any force. It is pointed out that petitioner/applicant by filing the constitutional petition in the High Court taken exception to the very jurisdiction of this Commission to deal in this matter. This pendency has got no effect whatsoever upon the present proceedings wherein permission has been sought as required under law.
9. It is to be appreciated that while granting permission, the Commission has to see whether a prima facie case has been made out for the grant of the same. The reading of the charge-sheet, reply of the respondent and the inquiry proceedings in juxtaposition brings me to a conclusion that a prime facie case has been made out for allowing the permission. However, the interest of justice demands that a restraint be exercised at this juncture/stage in exercise of powers under section 20(15) of the Ordinance in the present circumstances when hardly 4/5 days are left in the holding of secret ballot. I am of the opinion that if such permission is granted at this stage when the referendum is within sight, it may have adverse effect on the industrial peace. However, this order is of tentative in nature and petitioner/applicant would be well within its right to proceed in the matter in accordance with law thereafter particularly so when the learned Single Member has declined to issue a restraint order. The respondent till date has not raised any finger against the same which according to the learned counsel appearing for the petitioner/applicant impliedly demonstrates that he has accepted the same determination. I have deliberately not discussed the merits of this case lest it may prejudice the case of either party. However, I entertain no doubt in my mind that the competent authority if it thinks proper to proceed further in the matter would provide full opportunity to the respondent and decide the same uninfluenced by any observations made in this order.
10. Resultantly for what has been stated above this petition is disposed of in the above terms.