DECISION ' This appeal is directed against a decision of the learred Second Labour Court, given on 11th November. 1979, dismissing the appellant's grievance petition challenging his dismissal from service.
2. The appellant, who was working as Office Superintendent in the Stationery Branch of the respondent Society, was dismissed from service with effect from 21st October, 1978 on the charge of dishonestly and fraudulently obtaining an allotment order in respect of Plot No, S-21 instead of S-23, Mehmoodabad Road. The appellant challenged his dismissal order by way of a grievance petition before the learned Labour Court which has taken the view that the charge of wrongfully obtaining allotment order in respect of Plot No, S-21, measuring 1500 Sq. Yards, in lieu of Plot No, S-23, measuring 400 Sq. Yards, previously allotted to the appellant, had not only been established but was in fact admitted by the appellant and it accordingly dismissed his grievance petition.
3. I have heard Mr. S. H. Kohistani, who appeared for the appellant, and Mr. Syed Hamid Ali Rizvi, who represented the respondent Society. Mr. Kohistani assailed the impugned decision of the learned Labour Court on the following grounds :-
(i) That the act of the appellant did not constitute misconduct falling under Standing Order 15 since the appellant had paid normal charges for the plot of which he is stated to have obtained wrongful allotment ; (0 that the Enquiry Officer was appointed by the same order by which the charge-sheet was issued and no opportunity was given to the appellant to make a reply to the charge-sheet and to establish his innocence at the preliminary stage ;
(iii) that the charge-sheet was issued against the appellant after lapse of one year and consequently is invalid and violative of Standing Order 15(4) ; and
(iv) that the appellant having been awarded punishment of cancellation of his Plot and being administered a warning, the chapter was closed and he could not be further penalised thereafter.
4. Before examining the above contentions of Mr. Kohistani it may be pertinent to point out that the case of the respondent is that the appellant himself filled in the allotment order form in his name, alloting to himself Plot No, S-21 measuring 1500 Sq. Yards, in lieu of Plot No, S-23, measuring 400 Sq.
Yards, previously allotted to him, and directly put up the allotment order to the Secretary of the Society, Col. Nizamuddin, who signed the same, believing that the allotment had been put up in the normal course, after proper scrutiny by the Administrative Section and the Planning Section. The appellant himself appears to have admitted these allegations against him when he was called by Col. Nizamuddin and asked to explain his position, as appears from the evidence of Col. Nizamuddin, who was examined by this Tribunal and also from the note recorded by Col. Nizamuddin and the Office Order, dated 16th May, 1977, cancelling the plot allotted to the appellant.
5. Now as regards the first contention of Mr. Kohistani that the acts alleged against the appellant do not constitute misconduct for the purposes of Standing Order 15, I regret that I find no substance therein. It is well known that the Defence Officers' Housing Society is considered the elite Housing Society in Karachi and Plots in that Society are much in demand. The action of the appellant in unauthorisedly obtaining a large plot, measuring 1500 Sq. Yards, instead of the plot already allotted to him, by surreptitiously putting up an allotment order direct to Col. Nizamuddin instead of routing the papers through the Administrative and Planning Section, according to the normal practice, clearly amounts to dishonesty and fraud. As such, his action clearly amounts to misconduct falling under sub-clause (b) of clause (3) of Standing Order 15.
6. I also find no substance in the second contention of Mr. Kohistani that any illegality has been committed or any law has been violated by the simultaneous issuance of the charge-sheet and the appointment of the Enquiry Officer. Mr. Kohistani was unable to produce any authority or law in support of his contention that simultaneous issuance of charge-sheet and appointment of enquiry officer is invalid or prohibited by any law or rule.
7. The third contention of Mr. Kohistani that the charge-sheet, which was issued on 15th September, 1978 in respect of misconduct which came to the notice of the Society on 16th May, 1977, was hit by the provisions of clause (4) of Standing Order 15, also appears to be without any merit. It is true that the charge-sheet was issued to the appellant more than a year after the misconduct came to the notice of the respondent Society, but it appears that the misconduct was brought to the notice of the appellant as early as on 5th May, 1977. When he was called by Col. Nizamuddin who personally made enquiries from him in this behalf and to whom he admitted his guilt. It may be pointed out that clause (4) of Standing Order 15 does not provide for service of the charge-sheet nor does it even make mention of charge-sheet. All that the said clause requires is that the act of misconduct should be brought to the notice of the offending workman within one month of its coming to the notice of the employer. This has been done in the instant case. As such, the requirement of law has been fully met.
8. It remains to be considered whether the respondent Society was competent to dismiss the appellant after he had already been awarded punishment for his misconduct. Col. Nizamuddin, in his evidence before this Tribunal, has stated that he had cancelled the plot of the appellant and also administered a warning to him. He has further stated that these actions were taken by him against the appellant by way of punishment for the misconduct of the appellant in wrongfully and fraudulently obtaining allotment order in respect of Plot No, S-21. He stated that he considered this punishment to be adequate. What Col. Nizamuddin has stated in his evidence finds support from his office note, dated 5th May, 1977 and the office order, dated 16th May, 1977. It was strongly urged by Mr. Kohistani that in view of these punishments awarded to the appellant by the competent authority, who was the Chief Executive of the Society, the Society was precluded from taking further action against the appellant imposing any other penalty upon him in respect of the same action.
Mr. Rizvi, on the other hand, contended that the misconduct of the appellant was, firstly, that he dishonestly obtained a plot for himself to which he was not entitled and secondly, that he violated the rules of the Society in submitting papers directly to the Secretary of the Society instead of routing them through the Administrative and Planning Sections. Mr. Rizvi's contention was that Col. Nizamuddin had punished the appellant only for the former breach or wrongful action and hence it was open to the Society to punish him for the latter lapse on his part. It, however, appears from the evidence of Col. Nizamuddin that he had imposed the penalties on the appellant in respect of both the causes of action and had not considered it necessary to separate the question of fraud from the issue of breach of the rules. It was also submitted by Mr. Rizvi that since Col. Nizamuddin had not imposed on the appellant any punishment which was provided for misconduct under Standing Order 15 it was open to the Society to impose any punishment on the appellant provided by law. It is true that Col. Nizamuddin did not impose any punishment on the appellant which is specified in Standing Order 15 but since he had imposed the punishment of depriving him of the plot allotted to him and further had administered a warning to him, after considering all the circumstances of the case. I am inclined to the B view that it was not open to the Society thereafter to impose a further penalty upon the appellant after lapse of almost 18 months. The action of Col. Nizamuddin may not have been appropriate or he may be wrong in having taken such a lenient view for such a serious act of misconduct, but since he was the Chief Executive of the Society and as he considered this punishment to be adequate, I am inclined to the view that the Society was not competent thereafter to impose the penalty .Of dismissal upon the respondent. Mr. Rizvi attempted to show that it is permissible to the employer to impose more than one penalty upon the offending workman but the cases which he cited were those in which a workman had been punished by the Criminal Court and there after he was also proceeded against Departmentally. However, the position in the present case is totally different. What is sought to be done in the instant case is to impose on the appellant punishment of dismissal when the Chief Executive of the Society had already awarded him what he considered sufficient punishment. Mr. Rizvi was unable to cite any authority where such action was considered valid.
9. I am, therefore, of the view that the action of the respondent Society in dismissing the appellant was invalid. For the foregoing reasons, I would accept the appeal, set aside the impugned order of the learned Labour Court and direct the respondent Society to reinstate the appellant in service.
However, looking to the gravity of the misconduct which the appellant has admittedly committed, I would not award him any back benefits.