' The applicant Rao Mohammad Khalil has moved this application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against the respondent Pakistan Steel Mills Corporation Limited seeking his re-instatement on the ground that his services were illegally dismissed by the respondent. The facts as disclosed by the applicant are that he received a show cause dated 3rd September, 1978 on 20th September, 1978 containing allegations that on 28th July 1978 due to rash driving he collided his vehicle with another vehicle of the respondent-Company thereby causing a loss of Rs, 41,500 to the vehicle driven by the applicant. It was also stated in the said show-cause notice that due to the said accident which was caused by over speeding, rash and negligent operation of the vehicle, the applicant committed a misconduct as defined under section 15(3)(i) of the West Pakistan (Standing Order) Ordinance, 1968. The applicant submitted his explanation on 7th October, 1978 explaining the cause of accident. The explanation was not found satisfactory and an enquiry was scheduled to take place on 2nd October, 1978 vide notice dated 30th September, 1978. The applicant made an application to the Enquiry Officer stating that the show-cause notice is time barred on the ground that it was given more than one month after the cause of action. The Inquiry Officer did not acknowledge this letter, hence the applicant sent it through registered post.
A copy of the application alongwith postal receipt has been annexed as A/3 with the complaint.
The Enquiry Officer did not examine any witness and in fact did not hold any enquiry. A copy of the Enquiry report was enclosed as Annexure A/7 with the application. A second show-cause notice dated 25th October, 1978 was received by the applicant on 30th October, 1978. He replied the second show-cause notice on 30th November, 1978 and sent its copies to various authorities.
However, his services were dismissed on 14th December, 1978. He gave a grievance notice to the respondent on 25th January, 1979.
2. The applicant then moved the Labour Court under section 25-A of the Industrial Relations Ordinance, 1969 where the respondent raised an objection on 28th October, 1979 that the application is not maintainablit on the ground that the respondent-Company is covered under the Pakistan Essential Services (Maintenance) Act, 1952. This objection was upheld and the application under section 25-A of the Ordinance was dismissed. The applicant then preferred an appeal and the Sind Labour Appellate Tribunal upheld the decision of the learned Labour Court vide its order dated 3rd April, 1980. The applicant on the same day moved an application for obtaining the certified copy and received the same on 5th April, 1980. The present application was filed before the Commission on 7th April, 1980. The delay in filing the application has been explained satisfactorily and is condoned.
3. Two legal objections were raised by the respondent in their reply statement; (1) that the application is barred by time, (2) that as the applicant's services have been terminated after good cause, the application is not maintainable. I have already decided the first objection in favour of the applicant. The second objection has also no force.
4. On merits of the facts, the respondent admitted that the show-cause notice was issued to the applicant on 3rd September, 1978 but took the position that the services of the applicant were not dismissed in pursuance of the said show-cause notice. It was submitted that the applicant was also charged for another misconduct by another show-cause notice dated 23rd July, 1978 which was delivered to the applicant on 25th July, 1978 to which the applicant made a reply on 30th July, 1978.
5. A perusal of the dismissal order dated 14th December, 1978 show that a domestic enquiry was ordered to probe into the charges as contained in the show-cause notice No, CB/MB/R-8/78/1814 dated 23rd July, 1978 issued to the applicant. It further reveals that a second show-cause notice was issued to the applicant on 25th October, 1978. The dismissal order further reveals that prior to this offence for which he was dismissed he was also issued two show-cause notices for damaging the vehicles of Rs, 485 and 41,500.
6. The contention of the applicant is that even the charge-sheet dated 23rd July, 1978 is time barred as it was served on the applicant on 30th July, 1978 while the misconduct for which this notice was issued is alleged to have been committed on 29th June, 1978. He has further taken the plea that even if the applicant is held to be found guilty of negligent driving on 29th June, 1978, it was a single act of negligence on his part and he is not guilty of misconduct as defined in Standing Order 15(3)(i) because it is the habitual negligence which constitutes the misconduct. He has further submitted that no letter of enquiry was sent to him in respect of show-cause notice dated 23rd July, 1978. The applicant relying on para. 6 of the reply statement filed by the respondent contended that the respondents have themselves admitted that the notice of enquiry issued to the applicant was dated 30th September, 1978 at Annexure A/2 with the petition which relates to show- cause notice dated 3rd September, 1978 and not to the show-cause notice dated 23rd July, 1978. It appears that the contention of the applicant is correct and no notice of enquiry was served on the applicant in respect of show-cause notice dated 23rd July, 1978. Through a letter dated 9th July, 1980 the respondents were called upon to submit the following documents :-
(1) Show-cause notice dated 23rd July, 1978.
(2) Explanation of the applicant Rao Mohammad Khalil.
(3) Enquiry proceedings.
(4) Enquiry Report.
(5) Reply of the grievance notice given by the applicant dated 25th January, 1979.
(6) Reply submitted by the respondent in the Labour Court in the proceedings under section 25-A moved by the applicant before the Labour Court.
7. The enquiry proceedings have not been submitted by the respondent on the ground that the applicant had refused to attend the enquiry. However, a copy of the enquiry report has been placed on record. The enquiry report reveals that Rao Mohammad Khalil made his submissions regarding show-cause notice dated 3rd September, 1978 before the Enquiry Officer and not with reference to show cause-notice dated 23rd July, 1978. An extract from the enquiry report is reproduced below :- "Mr. Rao Mohammad Khalil the above-named incumbent submitted his reply to the show cause for battery burnt out and battery cover broken. He has inserted show cause notice No, CB/MB/R- 8/78/1314 instead CB/MB/R-8/78/1814 dated 23rd July, 1978."
' It goes to prove the contention of the applicant that he had not received any notice of enquiry in connection with show cause notice dated 23rd July, 1980. Moreover as stated ahove, the enquiry proceedings in respect of the show-cause notice have also not been produced by the respondents.
8. A perusal of the enquiry report shows that the applicant before the Enquiry Officer took the plea that the charge-sheet is time barred. The Enquiry Officer it appears did not pass any order himself on the above issue of limitation. He forwarded the issue to be decided by the Project Incharge (CB) which is evident from the enquiry report reproduced below:- ' Mr. Rao Mohammad Khalil the above-named Dumper Operator was served with a show-cause notice No, CB/MB/R-8/78/2813 dated 3rd September, 1978 which was for the damages worth Rs, 41,500. (Previous to this there was another show cause for battery damages). He was also suspended with effect from 10th September, 1978 to 7th October, 1978 and re-instated fi on 8th October, 1978. In this case he failed to reply. Resultantly the enquiry letter was issued to him. Instead prepared for enquiry, he brought a legal objection in Urdu script and wanted the reply instead of allowing to conduct the enquiry and afterwards added the remarks on that letter with different ink that 'Enquiry Officer refused to conduct the enquiry". In the circumstances, a noting with two captions (battery case and damages worth Rs, 41,500) was submitted to Project Incharge (CB) which was returned by Project Incharge (CB) to CB-Admn with the following remarks :- "I have seen the rules, proceed against him in the normal way. If does not attend the enquiry ex parte decision will be taken.
(Sd.) M. Karimullah, PI (CB) 9/10/78."
' The above act of the incumbent left no other way for us to proceed with the enquiry and his action and behaviour compels us to deduce that he has nothing to say in his defence and he is trying to save his skin under the legal objection shelter. The conclusion is that the misconduct is there."
' A perusal of the enquiry report would further reveal that the enquiry was conducted into charges vide show-cause notice dated 3rd September, 1978. There is no reference of the show-cause notice dated 23rd July, 1978. There is only a passing remark that "previously there was another show cause for battery damages". It further supports the contention of the applicant that he was unaware of any enquiry conducted into show-cause notice dated 23rd July, 1978. Even it is assumed that the enquiry was in respect of both the show-cause notices dated 3rd September, 1978 and 23rd July, 1978, the Enquiry Officer should have served another notice on the applicant after he received orders from the Project Incharge to proceed against him in the normal way. There is nothing on record to show that the Enquiry Officer called the applicant again after the issue of limitation was decided by the Project Incharge. Moreover the Enquiry Officer has not recorded any evidence to prove that the applicant is guilty of misconduct. He has failed to make any independent enquiry himself. Even if the applicant had not participated in the enquiry, it was the duty of the Enquiry Officer to have investigated in the matter to have come to a finding that the incident took place because of the negligence of the applicant.
9. A careful scrutiny of show-cause notice dated 23rd July, 1978 revealsf that it was issued to the applicant on 30th July 1978 and as such it is timejC barred as it relates to an offence which is alleged to have been committed by the applicant on 30th June, 1978.
10. The upshot of the discussion is that I hold that the applicant was illegally dismissed from service.
I therefore, direct the respondents to re-instate him in service with the benefit of continuity of service. However the period after his dismissal shall be treated as leave without pay.