' This is an application filed by S. A. Kemal son of (late) Atiqur Re man against the Pakistan Petroleum Limited, under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 praying for a declaration that his removal from service was unlawful and for a direction for his re- instatement in service with full back benefits.
2. The applicant had completed about twenty-three years of service with the respondent and was last serving as an Assistant Typist Grade (iii) in the Finance Department of the respondents. It is his case that his services were found satisfactory, so much so that he received letters of appreciation and tokens of good service after completing fifteen years and twenty years service respectively. In the year 1976 he was elected and took active part as General Secretary of the Pakistan Petroleum Limited Employees' Union to the displeasure and annoyance of the Management. That since a few years before his dismissal from service he was suffering from jacksonian fits and convulsions and suffering from depressions as a result of which he had been availing of medical leave from the Chief Medical Officer and was unable to attend duty on several dates. In the year, 1978, his ailments deteriorated and as he had failed to report for duty, he was given show-cause notice dated 4th December, 1978 to explain for being absent from duty without leave during the months of January to 19th October 1978. A further show-cause notice was given to him on 7th January, 1979 showing absence from duty for additional two months of November and December, 1978 and thereby charging him for habitual absence without leave from January to December, 1978 which constituted misconduct under Standing Order 15 (3) (c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He submitted an explanation to both the show-cause notices pleading that his absence from time to time was due to his aforesaid ailment of jacksonian fits and depressions and pleading further that the notices were time-barred.
Thereupon the Respondents appointed Mr. S. R. H. Kauther, Administrative Officer, as an Enquiry Officer.
3. Before the hearing commenced, the applicant requested to be supplied with copies of Attendance Register and other documents relied upon in support of the charge. However, it is not disputed that only the Attendance register was produced on the first date of hearing but no copies of the other records were supplied, such as, medical leave record, wage slips, notes to the wage section and computor division and other records. It is the case of the applicant that the enquiry which was conducted against him was unfair and biased, that he was denied inspection and production of the relevant record and data and the procedure followed by the Enquiry Officer was perverse, as will be presently discussed.
4. The Management examined Mr. Lqbal Bengali, Senior Accountant, Finance Department and Mr. D.
N. Lemos, Assistant Accountant and they were cross-examined by the applicant, Thereafter, the statement of applicant was recorded and he was allowed to be cross-examined by the Management witness Mr. Iqbal Bengali, which it is contended was a serious irregularity. Thereafter, the Enquiry Officer on his own examined Dr. M. Aman, Chief Medical Officer and allowed the applicant to cross-examine him. The Enquiry Officer concluded the enquiry on 25th July, 1979 and submitted his report in which he found the applicant guilty of misconduct on account of habitual absence without leave under Standing Order 15(3(e) of the Standing Orders Ordinance. A second show-cause notice was issued to the applicant on 13th August, 1979. The applicant submitted an interim explanation on 18th August, 1979 stating that in spite of repeated requests no copy of the enquiry proceedings were supplied to him as a result of which he was handicaped in submitting full reply. He also alleged that the enquiry was mala fide in nature and that the Enquiry Officer was biased and that he has been denied full opportunity of defending himself and otherwise, he has been victimised by the Management on account of his past Trade Union activities.
5. Copies of the enquiry proceedings were not supplied to him and on 26th November, 1979 he received order of dismissal from service. After filing an abortive Civil suit against the respondent, he approached the NIRC with the present application.
6. I have heard Mr. Mamoon A. Kazi learned Advocate, for the petitioner and Ghulam Hussain learned Representative for the respondents. Mr. Mamoon A. Kazi has attacked the dismissal order on legal as well as factual grounds. His first submission is that both the show-cause notices dated 4th December, 1978 and 7th January, 1979 were time-barred. It is his contention that under Standing Order t5 (4) of the Ordinance show-cause notice of the alleged misconduct has to be served within one month of the date of such misconduct and that the time expired on the first show-cause notice on 19th November, 1978, the last date of absence being 19th October, 1978, while in the case of show-cause notice dated 7th January, 1979, the dates of absence for November, 1978, became time-barred, thus leaving only two days of absence in December, 1978. In support of his contention that in the case of habitual absence without leave, the cause of action accrues to the employer where the last absence takes place and therefore show-cause notice was to be given within one month thereafter, he cited 1978 PLC 708 and 1978 PLC 256 and 374. In these cases, the employer had come to know that the worker had been absent without leave for several days during the previous calendar year, but the charge-sheet was issued more than one month from the end of the calendar year. It was held that they were time-barred. Mr. Ghulam Hussain learned Representative for the respondent submitted that the time limit mentioned in Standing Order 15(4) of Ordinance, 1968 related to individual misconduct, and was irrelevant, since habitual absence comprised several incidents spread over a long period and there was no time limit prescribed for taking action for habitual absence. He cited 1980 PLC 701.
7. I have considered these legal objections and inclined to agree With the submissions of Mr. Ghulam Hussain. However, the question dote not arise for decision in the present case as I would consider that both the show-cause notices dated 4th December, 1978 and 7th January, 1979 be treated as a single show-cause notice and in that case, even on the submission of Mr. Mamoon A.
Kazi, the show-cause notice dated 7th January, 1979 would be in time.
8. On facts, Mr. Mamoon A. Kazi's submissions have great weight that the enquiry appears to be biased and unfair. The petitioner was not informed the name of the complainant nor he was supplied copy of the Attendance register of the medical record, records of dates on which his pay was deducted for the days of absence or record a casual leave. The only documentary evidence produced against to petitioner was the attendance register at the hearing, which showed merely the dates of his absence. Had the Management produced the record and information requested by the applicant, the applicant may have been able to show that in respect of some of the dates of absence, his pay was deducted and on other dates, he had been granted cause leave. This record was available with the Management and the failure to produce the same in spite of applicant's requests, had prejudiced the applicant in his defence. Dr. Aman, Chief Medical Officer, who was examined furnished the dates on which he granted medical leave, but not the dates on which medical leave was refused to the applicant when he allegedly found him fit for duty. Mr. Kazi further pointed out that the Enquiry Officer even allowed Mr. Iqbal Bengali, Management witness to cross- examine the petitioner and thus assumed the role of prosecutor, which further showed bias of the Enquiry Officer. Moreover, the Enquiry Officer himself summoned Dr. Aman, after the evidence was closed to "throw light on the statement made in defence" and thereby Enquiry Officer wanted to fill in the gap in the Respondent's evidence, and in this connection Mr. Kazi referred to 1979 PLC 229, para. 12.
9. As stated in 1979 PLC 250, para. 17, "bias works in the human mind in an imperceptible manner and is destructive of detached and impartial thinking. There is every danger of a biased Enquiry Office B distorting a sentence and injecting into the record of the case his biased feelings in a manner which may not be apparent to the illiterate worker present at the enquiry or to the Reviewing Authority."
10. After giving anxious thought to the submissions made by the learned counsel for both the parties. I am not satisfied that enquiry proceedings were free from bias against the applicant.
Accordingly, I would set aside the order of dismissal of the applicant. The applicant shall be considered to have remained in service from the date of termination of his service. The payment for this leave period will be disposed of in accordance with the respondent's service rules. However, the Management are at liberty to initiate fresh enquiry on the basis of the same allegations after supplying the applicant with the relevant record and data requested by him.
' Above directions shall be sent to the Interior Division for publication in the official Gazette.