This appeal is directed against the decision of the learned had Labour Court, given on 29th May, 1980, dismissing the appellant workman's grievance petition challenging the orders of his dismissal from service.
2. The appellant, who was employed as a Crane Driver in the respondent Company, was charge- sheeted for quarrelling and misbehaving with and abusing Mr. Majid Ali. Supervisor in the office of the P & I. R. Manager. A domestic enquiry was thereafter held by Major (Rtd.) Iqbal Ahmad Khan, the Manager (Services Co-ordination) in the respondent-Company. On the basis of his report, wherein he opined that the charges against the appellant stood established, the appellant was dismissed from service, after he was served with a second show-cause notice. The appellant challenged the dismissal orders before the IInd Labour Court which dismissed his grievance petition. In consequence, the appellant has preferred this appeal to this Tribunal.
3. The sole point which has been canvassed by Mr. M. L. Shahani, the learned counsel for the appellant, is that the enquiry proceedings are invalid in that the Enquiry Officer was not an independent person. The learned counsel submitted that inasmuch as the show-cause notice to the appellant was ordered to be issued by Major Iqbal Ahmad Khan, as admitted by him his cross- examination before the learned Labour Court, he stood disqualified from functioning as the Enquiry Officer. Clause (4) of Standing Order 15 requires that the employer shall institute independent enquiries before dealing with charges against a workman. The expression "independent enquiries postulates not only that the enquiries must be held in a fair and impartial manner but that further they must be conducted by a person who is independent and unconnected with either the charges against the offending workman, the person preferring the charges against him and the initiation of proceedings against him. The issuance of a show cause notice is undoubtedly the initiation of disciplinary proceedings and in fact is the first step in the taking of such proceedings. In my opinion, therefore, a person who orders issuance of such a notice cannot be said to be an independent person who could appropriately be appointed as the Enquiry Officer against the offending workman. Mr. Yakub, the learned representative for the respendent company, strongly urged that the issuance of a show-cause notice is in fact the giving of an opportunity to a party to explain his conduct and hence Major lqbal, merely by directing the issuance of a show-cause notice to the appellant, cannot be considered to have rendered himself ineligible for being appointed as the Enquiry Officer. In support of his contention, the learned representative relied upon the observations made by a learned Single Judge of the Lahore High Court in the case of Haideri International Finance Ltd. v. State Bank of Pakistan . That was a case in which the State Bank of Pakistan had taken action under section 43-B of the Banking Companies Ordinance of 1962 in regard to a party which was said to be carrying on the business of banking. In that connection, the State Bank of Pakistan had also issued a show-cause notice to the Banking Company. It was observed by the learned Single Judge that a show-cause notice never requires an authority for being issued, that by itself a show-cause notice cannot do any harm to any one, that one may even elect to ignore it, that it is issued really for the benefit of the person to whom it is issued and he cannot therefore, feel aggrieved on account of it. No question arose before the learned Judge whether a person issuing a show cause notice is a proper or fit person for holding the enquiry in respect of the matter for which the show-cause notice was issued. In the case of Mohsin Siddiqi v.
Government of West Pakistan , their Lordships of the Supreme Court emphasised that a departmental enquiry must be conducted in accordance with the principles of justice and that the superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors. Judges and punishing authorities, when they themselves are the complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the rules. No doubt, in the instant case, Major Iqbal Ahmad was neither the prosecutor nor the dismissing authority, but since he admittedly ordered the issuance of the show cause notice to the appellant, he unfortunately allied himself with the proceedings against the appellant and, therefore, in my opinion, he was inelligible for appointment as the Enquiry Officer. In the case of Khaiber Tobacco Company v. Labour Union , the learned Chairman, Labour Appellate Tribunal, Peshawar, has pointed out that an important principle of natural justice is a hearing before an impartial Tribunal. It can hardly be said that a person who had directed the issuance of show-cause notice to a workman is an impartial Tribunal for holding an enquiry against him. A certain amount of prejudice is bound, in such cases to be generated against the workman ever amongst the best motivated persons.
4. Since I am of the view that the domestic enquiry, upon the basis whereof the dismissal orders were issued, was not conducted by an impartial Enquiry Officer, and that, in other words, there were no independent enquiries instituted by the employer, as required by the law, the dismissal orders in respect of the appellant cannot be sustained. I would, according, set aside the same as also the decision of the learned Labour Court and would direct the respondent company to re-instate the appellant in service within one week of the date of this order. Since the dismissal orders are being set aside on purely technical grounds, it will be open to the respondent-Company to hold a fresh enquiry by an Independent Enquiry Officer on the basis of the show-cause notice, dated 13th February, 1979. The question of payment of back benefits to the appellant would be dependent upon the result of any such enquiry. The enquiry should be held and completed within a reasonable period. 1 2 3