1. DECISION ' This petition has been submitted by one Ghulam Rabbani, ex-Crane Operator DNC Joint Venture, Tarbela Dam under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against the Personnel Manager DNC Joint Venture Tarbela Dam. He has submitted that he had been serving with the respondent-Company as Crane Operator since 1979 on Mobile Crane. He was served with a show-cause notice to which he had submitted his reply. An ex parte enquiry was however held and his objection was not accepted and a second show-cause notice was issued to him. He had prayed for an interim stay order till the case was decided by the competent authority.
2. ' The petitioner was informed that vide show-cause notice issued on 25th May, 1980 he had been informed that the charge levelled against him had been proved and he was, therefore, asked to show cause as to why he should not be dismissed from service. The petitioner was, therefore, required to submit his explanation to the second show-cause notice as no final decision in the matter had been taken by the respondent and no cause of action had arisen. He was advised to approach the Commission if he was not satisfied with the action taken against him on the basis of the explanation to be submitted by him. The petitioner appeared in person on 1st June, 1980 and submitted that he had been dismissed by the respondent-Company vide their order dated 27th May, 1980. A copy of the petition was, therefore, sent to the respondent for their comments which were submitted on 22nd June, 1980 and the case came up for arguments on 19th July, 1980.
3. ' The petitioner Ghulam Rabbani, Crane Operator was served with a show-cause notice dated 29th of April, 1980. He was charged that on 21st April, 1980 at about 10.30 hours when he was operating SLD Crane 162 it was observed that he was swinging the load in a very dangerous manner and was unable to control the operation of the swing and caused the load to smash into Re-bar on Unit No, 5 and nearly crushed Taj Bahadar Steel Erector between the load and the Re-bar. In this process three other employees were nearly knocked over the edge of the slab by the uncontrollable swing of the load. It was also stated in that show-cause notice that on the same day earlier he had caused the load to swing without directions from the Rigger and one Taj Bahadar had also nearly lost his fingers. He was charged with misconduct and was required to explain in writing.
4. ' The petitioner replied to the show-cause notice and stated that he was ordered by Mr. Mike Edwards to operate SLD Crane 162 and that he had been working on the crane quite efficiently on the day of incidence and was obeying the directions of the rigger in swinging the load but due to mechanical defect in the crane the slew handle had become loose and it received a jerk which was not due to any negligence or carelessness on his part. Mr. Abdul Saboor foreman was explained the position who subsequently explained the mechanical defect to Mr. Rex and Mr. Mike Edwards at that time. He submitted that the show-cause notice be withdrawn.
5. ' The learned Representative of the petitioner argued that the petitioner was hired as Crane Operator for Mobile Crane and was appointed as such on 1st April, 1979. He was however ordered to work on Derrick Crane. The petitioner found it difficult to operate that Crane and had informed the foreman that the lever of the crane was not working properly. He argued that the jerk the appened because of a mechanical defect and not due to any carelessness on the part of the petitioner. He submitted that the fact that there was some mechanical defect in the crane was admitted during the course of cross-examination in the enquiry held against the petitioner. There was no damage or loss to the property of the respondent and no one was injured due to the jerk taken by the crane.
6. He further submitted that an ex parte enquiry was held in his case and he could not produce his witnesses. As to the conduct of the petitioner he submitted that the applicant had received safety bonus/good conduct bonus which was allowed to the workers vide Circular No, 80/4/1, dated 5th of April, 1980. This bonus, he submitted, was paid after taking into consideration the conduct and safety record during each quarter and in that very circular it was mentioned that among others the unsafe operating practices or accidents will disentitle applicable employees from payment of the bonus. He, therefore, prayed that the petitioner be ordered to be re-instated in employment.
7. ' The learned counsel for the respondent argued that the petitioner was appointed as crane operator and he was expected to operate all sorts of cranes. He was charged for negligent working because he had caused hazards and endangered the lives of the workmen. He submitted that some workers were also injured due to unsafe operation by the petitioner. He also submitted that plea taken by the petitioner that the slew handle of the crane had come out was not correct. He did not participate in the enquiry saying that it was partial as the management did not agree to his request to change the Enquiry Officer because there was no valid reason for changing the Enquiry Officer. The petitioner was found guilty of the charges and he was given ample opportunity to defend his case. He submitted that the application should therefore, be dismissed.
8. I have heard the learned counsel for both the parties and have also gone through the enquiry proceedings and the report of the Enquiry Officer. The petitioner was appointed as Mobile Crane Operator which has been admitted in the cross-examination of Mike Edwards. The Mobile Crane is definitely different from the Derrick Crane. The petitioner was asked to operate the Derrick Crane and according to Mr. Mike Edwards when he took the petitioner to the Derrick crane he instructed Abdul Saboor, Rigger Foreman, to ensure that Mr. Ghulam Rabbani was made familiar with the location of the control levers. Mr. Mike Edwards however did not consider it necessary to instruct him on how to drive a crane as he was fully conversant with the methods of swinging, hoisting and buffing load.
9. ' The petitioner had not worked on Derrick crane before and apart from the fact that the petitioner was required to operate a different type of crane, there is nothing on record to show that he was made familiar with the levers of the Derrick crane as instructed by Mr. Mike Edwards. The erratic operation of the Derrick crane could not be directly attributed to Ghulam Rabbani's incompetence.
10. Even an ace car driver would not be able to drive a car smoothly which he had not driven before it he is required to drive that car because he may not be aware of the temperament of a new car and is therefore likely to commit mistakes. It takes sometime to become familiar with the working of a machine and in this case the crane being different from the one which the petitioner had been operating, it was likely to become bit difficult for him to operate it ' The petitioner has also submitted that the erratic operation of the Derrick crane was due to the fact that the slew handle had become loose and was pulled off during the course of operation although the mechanical/electrical foreman had checked the handle and found it perfectly sound and in correct manner but in cross-examination Mr. Mike Edwards admitted that the mechanical/electrical foreman had not given in writing that there was no mechanical defect in the Derrick crane.
11. ' The enquiry officer in his report has stated that it has been evidently proved that the petitioner lacked required proficiency to operate the Derrik crane which mainly contributed to the occurrence of the incidence under enquiry, It is also mentioned in the enquiry report that Mr. Rex Webb had also pointed out to Abdul Saboor Rigging Foreman that Ohulam Rabbani had no idea of the required skill of lifting, lowering and swinging this crane. The Enquiry Officer had come to the conclusion that the petitioner evidently lacked the required proficiency to operate the crane S L D No, 162 and had also failed in exercising due diligence and care in the performance of his duty which resulted in the repeated incidences of 21st April, 1980.
12. ' I have observed that the officers concerned as well as the Enquiry. Officer have mentioned that the petitioner lacked the required proficiency to operate the Derrick crane and in spite of this fact he was put to operate the Derrick crane which caused the incidences of 21st April, 1980. The petitioner should have been given proper instructions to operate this crane and should have been made conversant with the operation of the levers etc. Which was not done. I therefore, do not find that the petitioner could be held responsible for these incidences and accordingly, his termination from employment was not in order. I therefore, direct that he should be re-instated from the date of his termination with full back benefits.