' The- appellant, who was employed as a steward in the Pakistan International Airlines, the respondents herein. Was dismissed from service, with effect from 21st September, 1980 on the following charge :- "That on the last sector of flight Pk 782/28088C (THR-KHI) pax girl of 12/13 years age occupying seat No, 51-E required your assistance regarding working of toilet light and latch. You entered the toilet alongwith the pax girl and bolted the latch, grabed the girl and tried to kiss her. The girl complained your behaviour to the Purser Mr. Sardar A. Brohi, AH/Maqsooda and CSO/Jaffer which you admitted later on before them in writing".
' The said charge is stated to have been established against him in a domestic enquiry held on 8th and 10th September, 1980. The appellant challenged the orders of his dismissal before the learned IVth Labour Court which has dismissed his grievance petition, holding that the misconduct of the appellant had been duly established in a domestic enquiry. Aggrieved by this decision, the appellant has come up in appeal to this Tribunal.
2. The main grounds on which Mr. M. L. Shahani, the learned counsel for the appellant, has assailed the impugned decision of the learned Labour Court are, firstly, that the proceedings against the appellant by the P.I.A. Authorities were conducted in undue haste indicating a pre-determination on their part to do away with the services of the appellant, and secondly, that the appellant was not afforded a fair and proper opportunity of defence during the domestic enquiry. In support of his first contention, Mr. Shahani submitted that the appellant disembarked on 29th August, 1980, and on the same day, under the instructions of the General Manager, Flight Services, he was put under suspension for an indefinite period. Thereafter, on 31st August, 1980, he was issued a show cause notice to which the appellant submitted his explanation on 3rd September, 1980. On the same day, a formal charge-sheet was served upon him and he was required to submit his explanation thereto within 72 hours, On the 7th September, 1980, the appellant submitted his explanation and on the same day the management ordered an enquiry to be held against him, which was to be held on 8th September, 1980 at 1000 hours. In other words, the appellant was given less than 24 hours for preparing for the enquiry. On 8th September, 1980, the statements of all the witnesses i,e,, Customers Service Officer, S. A. Jaffer, Air Hostess Miss S. Z. Maqsooda and Flight Purser Sardar A.
Brohi, were recorded despite the fact that the appellant had been granted medical leave by Dr. Baig of the P.I.A. And such certificate had been submitted by the appellant to his immediate officer.
However, the cross-examination of the witnesses was reserved and the enquiry was adjourned to 10th September, 1980. On this day, the enquiry was concluded in the absence of the appellant and on the same day, the Enquiry Officer submitted his report to the competent authority. On 15th September, 1980, a telegraphic show cause notice was sent to the appellant requiring him to submit his explanation within 72 hours. On 18th September, 1980, the appellant submitted his explanation wherein he contended that although on 10th September, 1980, he was ill, Dr. Shaukat Khan who had examined him, cancelled the advice recorded by him on his Medical Sheet for grant of 3 days rest to the appellant, upon receiving telephonic instructions from the General Manager, Flight Services. On the same day when this explanation was submitted by the appellant, he appeared before the Acting Director, Customers Services, who recorded his statement in which the appellant stated that he did not feel that there was any need of fresh and further enquiry from his side as he would have given the same replies if he had appeared before the Enquiry Officer. On the same date, the appellant was dismissed from service with immediate effect.
3. Although the above facts would indicate a degree of baste on the' part of the management to hold and finalize the proceedings against the appellant, that by itself would not be sufficient to hold that the enquiry proceedings were invalid. The charges against the appellant involved the reputation of the Airline's service itself and hence the circumstances required that the proceedings be concluded as quickly as possible as regards the contention of Mr. Shahani that the appellant was placed under suspension for an indefinite period in contravention of the provisions of clause
(5) of Standing Order 15, it may be pointed out that although the order of suspension does not indicate the period for which the appellant was placed under suspension, there is no evidence to show that the appellant was placed under suspension for a period exceeding 4 days. The circumstances that the appellant had been granted medical leave for 8th and 9th, and the certificate indicates that for these 2 days, he was not considered fit for performing flight duties indicate, that the suspension period of the appellant apparently did not continue for an indefinite period as has been contended by Mr. Shahani.
4. There is, however, another aspect of the case which merits consideration. As already pointed out, the appellant was examined by Dr. Baig of the P.I.A. On 8th September, 1980. He found that the appellant had a boil in axillary and was also suffering from pain in the left leg. He accordingly granted him medical leave for 8th and 9th of September, 1980. Despite the grant of this leave the Enquiry Officer held the enquiry on the 8th and recorded the statements of all the witnesses. Mr. M.
A. Khan, the learned representative for the respondents, attempted to show that the Enquiry Officer received the medical certificate, after he had recorded the statements of the witnesses and hence he adjourned the enquiry proceedings to 10th September, 1980, on which date, the witnesses were required to be present for the purpose of cross-examination. The contention of the learned representative, however, stands contradicted by the note recorded by the Enquiry Officer at the foot of the statement of each witness recorded by him on 8th September, 1980, which is to the following effect :- "Since F. S./Nisar A. Sheikh is reported sick cross-examination not conducted and reserved. Enquiry fixed on 10th September, 1980."
5. It may be noted that whereas the rest of the note was typed the underlined words were written in the hand of the Enquiry Officer suggesting thereby that these words were presumably added as an afterthought or subsequently. In any case, since the statements of these witnesses were recorded behind the back of the appellant, when he was exempted from appearance or performance of his duties, these statements cannot be properly used against the appellant or be made the basis of the findings of the Enquiry Officer. No doubt the Enquiry Officer had adjourned the enquiry to 10th September, 1980, and had reserved the cross-examination of the witnesses to that date, but apart from the fact that mere reserving the cross-examination of the witnesses would not, in the circumstances of the case, have given a fair and proper opportunity of defence to the appellant, particularly, when the girl whom the appellant is stated to have attempted to kiss was not available, no cross-examination of the witnesses took place even on the 10th of September, 1980.
Mr. M. A. Khan contended that the absence from the proceedings of the appellant on the 10th was entirely unjustified and due to the fault of the appellant himself since according to the medical certificate issued by Dr. Shaukat, the appellant was quite fit on that date to perform his duties, including appearance before the Enquiry 0fficer. An examination of the Medical Sheet and the endorsement thereon of Dr. Shaukat, however, has raised serious doubts in my mind in regard to the physical fitness of the appellant to appear before the Enquiry Officer and conduct his defence on the 10th. The Medical History Sheet shows that the appellant was prescribed medicines by Dr. Shaukat and he had recommended him medical leave for that day and had certified him fit from 11th September, 1980. However, the endorsement regarding the grant of leave and fitness of the appellant with effect from 1lth September, 1980, has been scored out without such scoring being initialled by the Doctor. In view of these circumstances and the further fact that according to the explanation submitted on 18th September, 1980, by the appellant to the second show cause notice, Dr. Shaukat had scored out his advice regarding grant of further leave to the appellant on receipt of telephonic instruction from the General Manager, Flight Services, in order to clarify this point Dr. Shaukat was summoned and examined by this Tribunal. Dr. Shaukat admitted that after examining the appellant he had recorded on his Medical Sheet the advice that the appellant be given medical leave, but when the appellant started to walk away from him to the dispensary room, he noticed that the appellant was walking normally and consequently he revised his opinion and felt that the appellant was fit to perform his duties and accordingly scored out his advice regarding the grant of medical leave to the appellant. Although ordinarily 1 would have accepted the evidence and explanation of the doctor, in the peculiar circumstances of this case, including the rapidity with which the proceedings were taken, I am inclined to think that the matter is not entirely free from doubt as to how the entry regarding the grant of leave was scored out by Dr. Shaukat.
These doubts are strengthened by 2 other circumstances. One is the endorsement, dated 8th September, 1980, by Flight Surgeon Veerjee to the effect that the appellant should see him but there is no evidence that the appellant did see him on that day or on any subsequent day. It is also not known why Dr. Veerjee wanted to see him when he had already been examined by an anthorized doctor and was granted leave. The second suspicious circumstance in the case is that Dr. Shaukat, immediately on scoring out his endorsement regarding grant of further medical leave to the appellant, communicated his advice to Flight Surgeon Veerjee that the appellant was fit to resume his duties and the latter forthwith communicated that advice to the General Manager, Flight Services. This latter circumstance seems to indirectly support the allegation of the appellant that it was at the instance of the General Manager, Flight Services, that Dr. Shaukat had scored out his endorsement regarding grant of leave to the appellant. In the circumstances I am inclined to the view that the action of the Enquiry Officer in proceeding with and in fact concluding the enquiry ex parte against the appellant on 10th September, 1980 was not justified.
6. The question, however, arises whether, - in the circumstances of the case, a fresh enquiry should be ordered. Mr. M. A. Khan invited my attention to the statement made before the Acting Director, Customers Services, who had specifically asked the appellant whether he desired that a fresh enquiry by another Enquiry Officer be held, but the appellant stated that there was no necessity of fresh enquiry. The fact that the Acting Director enquired from the appellant whether he wanted a fresh enquiry to be held suggests that the Acting Director himself was apparently not satisfied with the ex parte enquiry held against the appellant. No doubt, the appellant did not take advantage of the offer suggested by the Acting Director, but his answer must be construed in the context in which it was made. The stand of the appellant all along has been that though undoubtedly he went with the passenger girl in the lavatory, bolted the door and caught hold of the hand of the girl, but he has strongly denied that he attempted to kiss the girl. The explanation of the appellant for catching hold of the hand of the girl is that he wanted to show her how to operate the light and latch of the toilet. However, the charge against the appellant was not merely that he went with the girl into the toilet or that he bolted the door or even that he caught hold of her hand but further that he attempted to kiss the girl. It was on this charge that the appellant has been dismissed.
7. Taking all the circumstances of the case into consideration, I am of the view that the appellant has not been afforded a fair opportunity of defending himself at least on the charge of attempting to kiss the girl. I would accordingly set aside the orders of dismissal of the appellant and would order his reinstatement in service. However, since the dismissal orders are being set aside on a purely technical ground, it would be open to the respondents to hold a fresh enquiry against the appellant in accordance with the law. The claim of the appellant to any back benefits would depend upon the result of such fresh enquiry.