' Syed Hamid Hussain, Member.--Appellant Mst.Jalwat Huma, Airhostess of PIA filed' a petition u/S. 33 of the IRA, 2012 for setting aside the show-cause notice dated 04.02.2012, and order of dismissal from service dated 04.04.2014 issued and passed on the basis of misconduct. It was stated that appellant was not governed by PIA Regulations, 1985 being a worker, and her case was within the ambit of Industrial and Commercial Employment Standing Order, Ordinance, 1968. But even then under the PIA Regulations, 1985 proceedings were conducted against her for misconduct committed beyond the territorial jurisdiction of Pakistan. She was falsely involved in case of duty evasion on cigarettes at Manchester Airport England. She was arrested and produced before the Magistrate, before whom she admitted her guilt, and he convicted and sentenced her to one day imprisonment (served). After this the respondents on the basis of enquiry for evasion of duty cigarettes, awarded major penalty of dismissal from service which was not warranted by law at all.
This grievance petition was partly allowed, and her dismissal from service was set aside. However, she was not given back benefits, as a result of which she filed instant appeal on 17.05.2016 on different grounds.
2. The respondents PIAC dissatisfied by the impugned order also preferred an Appeal No, 12A(24)/2016 on 26.05.2016. Both the appeals against the same and one impugned order are being disposed of by this single order and hereinafter Miss Jalwat Huma would be called as appellant and P.I.A.0 as respondent.
3. Learned counsel for the appellant vehemently argued that proceedings against the appellant, under the PIA Regulations, 1985 were void ab-initio, therefore, the question of limitation regarding show-cause notice would not arise. He further argued that appellant was never engaged in any service after dismissal, and she was entitled to back benefits, and burden of proof was wrongly placed by Single Bench on the appellant. The burden of proof relating to gainful employment was on respondents. In support of arguments, learned counsel for appellant relied on cases reported in 2015 CMR 1545, PLD 2010 676, PLD SC 724, 1993 PLC 104, 1997 PLC 34, 2003 SCMR 191, 2004 SCM R 149, 2009 SCM R 725, 2015 PLC 16, 1991 SCM R 2087, 2002 SCMR 1024, 2015 SCM R 77 and 2013 PLC 1 and prayed for the acceptance of the appeal of No,12A(22)/2016 of appellant Jalwat Huma.
4. Learned counsel for the respondent (PIAC) prayed for setting aside the impugned order of Single Bench to' the extent of particularly acceptance of grievance petition of appellant regarding limitation of show-cause notice, back benefits, and declaring departmental disciplinary action illegal. Learned counsel for the respondents further stressed that the impugned order to the extent of limitation qua show-cause notice was wrong and not sustainable because the show-cause notice was not time barred in view of cases reported in 2005 PLC Lahore High Court 351, 2004 SCM R
149. At the end prayed for acceptance of the Appeal No,12A(24)/2016 of the respondent P.I.A.C.
5. Arguments heard record perused.
6. First of all it is fiercely argued by the learned counsel for the appellant (Jalwat Huma) that the appellant is a workwomen and against her the inquiry proceedings should have been conducted under the provision of Section 15(4) of Industrial & Commercial Ordinance 1968 for the convenient articulation of the provision of Section 15 subsection (4) is reproduced below: "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer's] and is given an opportunity to explain the circumstances alleged against him. The approval of [ the employer shall be required in every case of dismissal and, the employer shall institute, independent inquiries before dealing With charges against a workman: [Provided that that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.] ' From the bare perusal of the above mentioned sub-section (4) of Section 15 of Standing Orders Ordinance, 1968 it is vivid without any ambiguity that the intention and requirement of the above said provision of Standing Order Ordinance, 1968 is as follows:--
(a) No order of dismissal shall be made.
(b) Till the alleged misconduct is informed to the concerned workmen in writing.
(c) The information in writing about the misconduct should be made to the workmen by the employer within one month from the date of which the alleged misconduct took place comes to the notice of employer.
(d) The employer shall institute independent inquiry before dealing with the charge against workmen.
(e) An opportunity should be provided to the workmen to explain the circumstances alleged against him.
(1) Approval of the employer in case of dismissal.
7. From the above reproduced of provision of Section 15 of sub-section (4) of Standing Order Ordinance, 1968 that the primary and basic intension of legislation was to do justice with the condemned workmen by informing him about his misconduct through information in writing for which the respondent management served a show-cause notice to the appellant (Jalwat Huma) wherein categorically stating that she was arrested at Manchester Airport of UK and 2400 Non UK duty paid cigarettes value of 527 pounds was recovered from her luggage and after her arrest she was produced before the Magistrate concerned Trafford Court on 31.10.2012, before whom appellant confessed her guilt so she was sentenced to imprisonment for one day which was served by her. And according to this show-cause notice Exh P/5 a written reply of the appellant (Jalwat Huma) was called for within seven days and disciplinary proceedings were suggested that why they should not be initiated. Moreover when the appellant Jalwat Huma returned to Pakistan then a show-cause notice was issued to her and the reply of the appellant (Jalwat Huma) was considered unsatisfactory so the disciplinary action was recommended by the concerned authority and prior to the disciplinary action an inquiry was ordered to be held and Syed Rehan Ahmed Deputy General Manager Group Tours and Chartered Inad Pax Cell and Task Fource PIA Lahore was appointed as inquiry officer. In the inquiry proceedings appellant Jalwat Huma joined the inquiry proceedings as many as four prosecution witness was examined during the inquiry proceedings and full opportunity was granted to the appellant Jalwat Huma for cross-examination and she opted to cross-examine some PWs and not to cross-examine some. It means that the appellant fully participated in the inquiry proceedings and inquiry proceedings were independent as through her cross or during the inquiry proceedings no objection was raised by the appellant Jalwat Huma over the inquiry officer or inquiry proceedings. From above narrated circumstances it is clearly made out that during the inquiry proceedings to the appellant Jalwat Huma was free and full opportunity was granted to advance her defense or stance and she willingly participated in the inquiry proceedings. Further more at the conclusion that the inquiry appellant Jalwat Huma was found guilty for the allegation leveled against her so a notice for personal hearing was also served on the appellant Jalwat Huma on 15.5.2013, for her appearance and personal hearing of the appellant which was considered not a convincing one so the competent authority Shah Nawaz Director Flight Services recommended for the dismissal of the appellant with immediate effect and for issuance of order to this effect the concurrence of Director HR Admin and Coordination was solicited and the recommendation of the Director Flight Services were approved by the Manager Human Resources Flight Services with the approval of competent authority.
8. The intension of the Standing Orders Ordinance, 1968 and wisdom behind it is that no order of dismissal of any workmen should be passed while fully safe generating the right and interest of the workman, so that substantial justice could be done with the workman, and the defence of the workman should not be prejudiced by providing fair opportunity of defending him during the inquiry the ibid procedure has been adopted in letter and spirit, by the respondent management but under wrong nomanclature of law. And except the wrong mention of law no other objection has been raised or pointed out by the appellant Jalwat Huma pertaining to inquiry and it can very safely be held that the departmental domestic inquiry was regular and nothing to the denial of substantial justice to the appellant Jalwat Huma is available on record and without any such defect such like inquiry could not be assailed on any legal ground and we get support to our this opinion from case law 1974 PLC 43 Pir Sultan Mahmood Vs Tarbella Joint Venture etc the relevant portion of the judgment is reproduced below: "It is evident from the statement of the petitioner himself that he was given a show-cause notice where after Sahibzada Mahmood Jhan, who was appointed the Enquiry Officer, held an enquiry, against him, in which he participated. He also admitted that, after the enquiry, he was demoted to the rank of the Safety Guard but he refused to work as such Guard. The enquiry was, therefore, quite regular and the petitioner could not assail the enquiry on any legal ground."
9. Further more it is pertinent to mention that intension of the provision of Section 15 sub-section
(4) of the standing orders Ordinance, 1968 has been principally abid by the respondent management. So mere mentioning of wrong codal law is not sufficient to vitiate the whole procedure, because wrong mention of codal law is mere an irregulatry and from inquiry proceedings nothing as surfaced that if any right or substantial justice to appellant Jalwat Huma has been denied or infringed or defense/stance has been damaged, so we are of the opinion that mere non mentioning of standing orders Ordinance, 1968 is not enough to vitiate the whole inquiry proceedings, because it is mere irregularity not illegality.
10. Learned counsel for the appellant Jalwat Huma fiercely argued that the show-cause notice was served to the appellant beyond the limitation of one month. Admittedly the incident of misconduct took place for away from Pakistan at foreign land of UK it can easily be construed that after the return of the appellant to the Pakistan from UK the currency or fact finding probe have been conducted by the respondent management and then a show-cause notice was issued to the petitioner and that is also fair play on the part of the management to find out the truth and when after coming to conclusion that matter is proceedable in inquiry then the show-cause notice was issued, these all events were time consuming because the information was sent from UK to Pakistan and then a preliminary report have to be made about misconduct of the appellant, which also required collection of some paper from U.K. In such like incident the period of 30 days as prescribed in SSO 15(4) has to be reckoned from the date of knowledge as, the incident took place at U.K so the bar envisaged in Standing Order 15(4) of Ordinance, 1968 would not constitute a bar against the service of charge sheet on score of delay. We get support to our opinion from case law 2004 SCM R 149. The relevant paragraph is reproduced below:- "That the charge-sheet was belated having no value in view of the provisions as contained in Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for the reason that limitation of thirty days as prescribed in the said order shall be reckoned from the date of the knowledge. Even otherwise if some embezzlement or misappropriation is detected during the course of proceedings or at some subsequent stage the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 does not constitute a bar that no charge-sheet could be served merely on the score of delay".
11. Further it is pertinent to mention that in the grievance petition appellant has not contended a single word that on such and such date the respondent management got the knowledge of incident for reckoning 30 days and further during the proceedings before Single Bench, no evidence oral or documentary was produced by the appellant to corroborate the fact, that the issuing of show-cause notice was delayed one, with the dates, because if fact is alleged by the appellant then appellant was legally bound at first hand to prove which she failed, even no witness of the respondent has been cross-examined to this effect that the show-cause notice is delayed one. Consequent to this we are of the opinion that the delay in the show-cause notice is not fatal to the case of the respondent. Again we get support to our opinion of case law 2004 SCM R 149 and 2005 PLC 351.
12. Consequent to this we are of the opinion that the appeal of the appellant (Jalwat Huma) is meritless and the appeal of the respondent management PIA have a substance, so respectively Appeal No,12A(22)/2016 is dismissed and Appeal No,12A(24)/2016 is accepted. Consequently the impugned order of single bench is hereby set aside and dismissal order from the service of the appellant (Jalwat Huma) passed by the respondent management dated 4.4.2010 and show-cause notice dated 4.2.2012 is upheld. Consequently the Appeal No,12A(22)/2016 of appellant Jalwat Huma is dismissed and the appeal of respondent No,12A(24)/2016 is accepted. No order to costs.
Files be consigned to record room and record of single bench be also send back to record room for consignment. SW- Members ' DISSENTING ORDER ' Syed Musadiq Hussain Gilani, Member.--Appellant an Airhostess of NA was arrested on 30-10-2012 at Manchester Airport UK after being found in possession of 2400 Cigarettes on which tax amounting to 527 pounds was not paid. Against appellant case u/S. _ 170(2) of the Customs and Excise Management Act, 1979 was registered, and on 31-10-2012 she was produced before the Magistrate concerned. Appellant pleaded guilty to the charge, and as a result she was sentenced to one day imprisonment (time served), and subsequently she was released. On arrival to the country the respondents served a show-cause notice to the appellant u/S. II clause-75 (a), (ak) and (ap) of PIA Employees (Service and Discipline) Regulations, 1986. On the basis of this notice, enquiry was conducted against the appellant, and she was dismissed from service on 04-04- 2014, due to misconduct. Appellant filed a petition u/S. 33 of the IRA, 2012 on the grounds that being worker she was not governed by PIA Regulations 1986, as her case was within the ambit of Industrial and Commercial Employment (Standing Order) Ordinance, 1968. The show-cause notice, proceedings conducted thereon, and dismissal order were, therefore, illegal, and void abinitio being without jurisdiction. This grievance petition was partly allowed by the learned Member NIRC Islamabad on the ground that show-cause notice was not given within time, however, back benefits were refused to the appellant. Aggrieved by this order appellant as well as respondents filed separate appeals which are being disposed of through this order.
2. Learned counsel for the appellant vehemently argued that proceedings under PIA Regulations 1986 were void abinitio, therefore, the question of limitation qua show-cause notice would not arise.
He further argued that after dismissal from service appellant did not serve any where, and she was entitled to back benefits but the burden of proof in this regard was wrongly placed on appellant. He stressed that appellant filed affidavit to the effect that she had remained unemployed after dismissal, and there was no evidence produced by the respondents regarding her gainful employment. In support of Arguments learned counsel for the appellant relied on cases reported in 2015 SCM R 1545; PLD 2010 676, PLD S.0 724, 1993 PLC 104, 1997 PLC 34, 2003 SCMR 1991, 2004 SCM R 149, 2009 SCM R 725, 2015 PLC 16, 1991 SCM R 2087, 2002 SCMR 1024, 2015 SCM R 77, 2013 PLC 1, 2006 PLC C.S. 955 Karachi and PLD 2008 S.0 663. On the contrary, learned counsel for respondents argued that enquiry proceedings were conducted in accordance with law, on the basis of which the appellant was rightly dismissed because she had damaged the reputation of the respondents.
He further stated that show-cause notice was not time barred in view of cases reported in 2005 PLC Lahore High Court 351, and 2004 SCM R 149.
' It is vivid enough from the record that after recovery of Cigarettes, appellant was arrested and produced before the Magistrate concerned who sentenced her to one day imprisonment (time served). On arrival to the country the respondents served the show cause notice EX P-5 to the appellant under the provisions of PIA Regulations, 1986. I am afraid, the case of appellant was within four corners of the definition of worker and workman as given in section-2 (xxxiii) of the IRA, 2012, and it was rightly held by learned Member single bench of the Commission. This fact was also not denied by the respondents. The penal provisions and proceedings which culminate in dismissal of the employee, are to be construed strictly, and liberal view could not be taken in this regard. It was not pleaded by the respondents, or argued at the bar that mentioning of PIA Regulations, 1986 ibid on the show-cause notice was inadvertent mistake, or that the proceedings were not conducted under those provisions. Thus, I am of the considered view that the show-cause notice, enquiry proceedings and dismissal order were illegal, and void abinitio being without jurisdiction.
Moreover, even when the order is made by the authority having jurisdiction, it is not the order void abinitio but the illegal order which may be set aside on other sufficient grounds. This material illegality is neither curable, nor it can be ignored, or waived-off. It goes to the root of the case, and vitiates the entire enquiry proceedings. When the foundation is shaky, the entire superstructure built on it would fall to the ground. This view is supported by the Judgment of august Supreme Court of Pakistan reported in PLD 2008 663 as under: "when the basic order is without lawful authority and void abinitio, then entire superstructure raised thereon falls automatically".
3. Needless to say that appellant was also not treated equally before the law as the other employees involved in such cases were only censured. I am also not oblivious of the fact that tax evaders of billions of rupees command respect in society, and enjoy postings at key posts, while the person involved in nominal tax evasion, that too abroad has been subjected to major penalty.
After the incident appellant suffered agony, humiliation, and mental torture, which is sufficient to teach her a lesson for the future. It was also not proved by the respondents that after dismissal the appellant had served anywhere. The respondents also failed to submit the counter affidavit to the affidavit of the appellant qua gainful employment. Thus, the appellant was also entitled to the back benefits. When justice is to be imparted, it must be imparted in its entirety. Similarly, order to the extent of further disciplinary proceedings being without lawful authority and against the principles of natural justice warrants interference. In the circumstance, the impugned order of reinstatement of the appellant is maintained but on different grounds, however, order to the extent of back benefits is set aside. Accordingly, appeal of the appellant is accepted, while cross appeal of the respondents is dismissed being without merits.