' Muhammad Irshad, respondent, was posted as a Junior Goods Clerk at Shahdara Bagh Railway Station. He was transferred to Haripur Band Railway Station. According to the Management, he was relieved on 1-7-1975 at Shahdara Bagh but he did not report for duty at Haripur Band. He applied for leave for two months, which was in the first instance granted but subsequently was cancelled. He filed a civil suit and succeeded in getting a stay order, but ultimately the civil suit was dismissed and he then went in appeal before the Additional District and Sessions Judge, where initially he was granted a stay order but ultimately the appeal too was dismissed. He then approached Punjab Labour Court No, 2, Lahore under section 25-A of the Industrial Relations Ordinance, 1969. The respondent produced Abid Hussain Siddiqui A. C. T. (P. W. 1), Muhammad Bashir, shunting porter (P.
W. 2) and himself appeared as P. W.
3. The appellant-Management produced Muhammad Ismail, Junior Welfare Officer (R. W. 1), Haji Muhammad Ismail, Junior Welfare Officer (R. W. 2), Muhammad Nadim Qadri, Junior Engineer (R. W.
2) and Muhammad Salim, Head Clerk (R. W. 4), The Labour Court vide impugned decision dated 16- 7-1978, accepted the petition and ordered the re-instatement of the respondent in service with back benefits. Hence this appeal.
2. I have heard at length the counsel for the appellants and the respondents in person. I have also perused the entire material available on the record.
3. According to the learned counsel for the appellant, show-cause notice (Exh. R-7) was duly issued under registered cover A/D to the respondent and the same was also received by the respondent but he did not offer any explanation to the charges levelled therein. On the other hand, the version of the respondent is that this notice was not received by him and that the alleged signatures on AID receipt are not his. Thereafter, another notice dated 22-4-1976 (Exh. R-9) was issued to the respondent under registered cover regarding the proposed penalty, which came back undelivered.
4. It is an admitted fact that no domestic enquiry has been conducted in this case. The position taken up by the counsel for the appellant Railways is that under rule 5(3) the Authorised Officer was competent to dispense with the enquiry. However, there is nothing on the record to show the reasons or the justification for not holding the enquiry and following the other course to inform the respondent of the action proposed to be taken against him. Since it was a simple case of absence, which under the Railways Servants (Efficiency and Discipline) Rules, 1975, amounted to misconduct, it was necessary for the employer to prove the same against the accused employee either through an enquiry under section 5(2) or otherwise under rule 5(3). In this case, as mentioned above, show- cause notice (Exh. R-7) was sent to the respondent, but according to him, he did not receive it.
There is no other material available on the record to show that any other opportunity was given to him to explain his conduct regarding absence. However, subsequently, it has come on the record that first he applied for leave for two months, which was cancelled and then he secured a stay order first from the Civil Judge and then from the Additional District and Sessions Judge. These circumstances have not been considered by the employer before passing the impugned removal order. Therefore, I feel that through a regular enquiry or otherwise some opportunity should have been afforded to the respondent to explain his absence before he was removed from service. In this view of the matter his grievance petition has been rightly accepted by the Labour Court.
5. Alternatively, the learned counsel for the applicant Railways has vehemently contended that since the re-instatement is based purely upon technical grounds the Labour Court was not justified to grant back benefits to the respondent. He has also cited certain authorities in support of his contention. The respondent is not in a position to rebut this contention.
6. In service matters for taking a disciplinary action of major nature, to hold an enquiry against the employee is the general rule and to dispense with it is an exception. It is recognised throughout the civilized world, that the onus is upon the prosecution to prove the guilt of the accused employee and to provide a reasonable and adequate opportunity to the employee to defend himself.
Accordingly sub-rule (2) of rule 5 should be applied generally by the Department and sub-rule (3) is a sort of exception and should be used very rarely. Sub-rules (2) and (3) are reproduced below :-
5. Inquiry procedure (1)
(2) The Authorised Officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall--
(a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and
(b) give him a reasonable opportunity of showing cause against that action : ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it s not expedient to give such opportunity."
No doubt it is purely the discretion of the Authorised Officer to decide whether an enquiry should be conducted through an Enquiry Officer or Enquiry Committee under rule 6 or to dispense with the enquiry and proceed under sub-rule (3). However, the Authorised Officer has to exercise his discretion in a reasonable manner giving his reasons in writing for not holding the enquiry, so that, if later on the case is brought before a Court of law, the Court may judge the reasonableness or otherwise of the discretion of the Authorised Officer. In other words there must be some check upon the discretion of the Authorised Officer so that it may not be misused resulting in injustice.
' From the perusal of rub-rules (2) and (3) it is clear that there are two courses open to the Authorised Officer, for determining the guilt of the accused employee. Under sub-rule (2), he can decide whether an enquiry should be conducted or not. To decide this matter he is required to take into consideration the facts of the case or the interest of justice. It is not denied that generally speaking, facts of each case are different. Similarly, the interest of justice in each case will also depend upon different considerations. In other words, while deciding the question whether an enquiry should be conducted through an Enquiry Officer or Inquiry Committee, the Authorised Officer has to keep in view the facts of that case or the interest of justice. He has to show this through written order. Thus the Authorised Officer while deciding whether in a particular case enquiry is to be held through the Inquiry Officer or not, he must pass an order in writing giving his reasons for his decision keeping in view the facts of the case and the interest of Justice. This is necessary so that in case of misuse of this power, the Court may examine the same. This will also avoid misuse of this power for some ulterior motives by the Authorised Officer under this sub-rule.
The procedure to be observed by the Inquiry Officer is given under rule 6, which shows that the Authorised Officer shall frame a charge and communicate the same to accused employee together with the statement of allegations explaining the charge and of any other relevant circumstances, which are proposed to be taken into consideration and require him within a reasonable time to put in a written defence and to state at the same time whether he desires to be heard in person. The Enquiry Officer or the Enquiry Committee shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused employee shall be entitled to cross- examine the prosecution witnesses. The Enquiry Officer or the Enquiry Committee is then required to submit his or its findings and the grounds thereof to the Authorised Officer. Thus before the Inquiry Officer or the Inquiry Committee both the principles giving full opportunity to the prosecution to prove its case against the accused employee and providing similar opportunity to the accused employee to defend himself are safeguarded which is the requirement of law and of justice.
7. On the other hand, if the Authorised Officer decides that it is not necessary to have an enquiry conducted through an Inquiry Officer or Inquiry Committee the procedure prescribed under sub- rule (3) is that the Authorised Officer is required to inform in writing the accused employee of the action proposed to be taken against him and the grounds of the action. The Authorised Officer is also required to have accused employee a reasonable opportunity of showing cause against that action. There is a proviso to this, which shows that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. However, this proviso is not applicable to the present case.
From the perusal of sub-rule (3) it is clear that prosecution is not required to prove the charge or allegation made against an employee; rather it is presumed to be proved or conveyed to the employee in writing informing the accused employee about the action proposed to be taken against him and the grounds of the said action. Since there is no provision for proving the allegation by the prosecution, it is, therefore, the obligation of the Authorised Officer while conveying the proposed action, to give all possible grounds or reasons in writing to justify such action against him so that the accused employee may fully explain his conduct and subsequently if the case goes before Court of law, it may also examine it to see the justification for the proposed action. In other words, the grounds or reasons of the proposed action must be of such a nature, which may be sufficient to prima facie establish the charges levelled against the employee by the prosecution. Such "grounds" thus will be substitute for "proof" of the allegations. In the instant case, as mentioned above this requirement of rules has not been complied with. Under clause (b) of sub.
Rule (3) of rule 5, the Authorised Officer is required to give a reasonable opportunity of showing cause to the employee against the propose action. The expression "a reasonable opportunity" has been inter preted by Courts in numerous cases. It includes all possible defence documentary and oral which may be available to the accused employee. H can give his explanation in writing and can produce oral and documentary evidence and can also ask the Department to produce certain documents or file relevant for his case. In other words, this expression will not only mean issuing show.-cause notice and getting written explanation from the employee, but the employee shall have the right to produce any oral or documentary evidence relevant for the determination of the issue.
8. Accordingly, after taking into consideration the relevant facts and circumstances of the case. I, while maintaining the re-instatement of the respondent in service, modify the impugned decision to the extent that the respondent shall be paid only 50 per cent. Back benefits instead of full.
' This appeal stands disposed of in the above terms.