MUHAMMAD ZUBAIR AZIZ CHEEMA, MEMBER .----The petitioner has filed the instant grievance petition under section 33 read with section 54(e) of the Industrial Relations Act, 2012 for setting aside the impugned demotion letter dated 14-10-2015 being illegal, based on discrimination, victimization etc.
2. The brief facts leading to this case are that the petitioner was appointed on 15-05-1996 as Office Assistant and later he was promoted as Senior Office Assistant. That on 21-11-2013, the petitioner received a charge sheet with statement of allegations to the effect that he was responsible for accepting unauthorizedly 2nd year premium deposited through a personal cheque of Rs. 206,000/-without late fees on 07-01-2013 by Mr. Hasnain Manzoor and issued back-dated receipt No.55582 with collection date of 31-12-2012. That the other allegation was also alleged against the petitioner that he accepted personal cheque of Rs.5000/- against late fees on 11-01-2013. That on 21- 11-2013, the respondents issued charge sheet to the petitioner and the petitioner replied the said charge sheet by denying the allegations levelled against him that he was not a designated Cashier and performing his duties as Senior Office Assistant under the supervision/instructions of Zonal Accountant. That ultimately , Mr. Tanveer Butt was appointed as Inquiry Officer who after an inquiry held that the allegations of misconduct willfully insubordination or disobedience were proved against the petitioner and then he was issued a final show-cause notice by the respondents management on 25-02-2015. That on 14-10-2015, the impugned demotion letter was issued to the petitioner by exonerated its other colleagues involved in the case against which the petitioner moved a revision appeal to the Zonal Head, Multan and then he sent departmental appeal/grievance notice to the respondents management which was decided vide letter dated 12-04-2016 with the remarks that the appellate authority i.e.. Executive Director (P&GS) after examining the entire record, inquir y report, punishment letter inter alia, the petitioner's contention during the personal hearing and found that the Zonal Head awarded the punishment vide letter dated 14-10-2015 without capping, as per Fundamental Rules, the punishment has to be capped, the demotion to a lower grade is reduced to one year i.e. 14-10-2016.
3. That the petitioner has assailed the aforementioned findings of the respondents department on the grounds inter alia, that the same are based on mala fide malice, void etc. That the impugned demotion letter issued in violation of law is against the principles of natural justice and petitioner has prima facie' case and if the impugned letter is not set-aside, the petitioner will suf fer an irreparable loss and legal injury .
4. The respondents resisted the grievance petition through written reply by raising preliminary legal objections that the petition is not maintainable, that the petitioner has not come with clean hands as earlier he admitted the allegations levelled against him during the course of inquiry proceedings and personal hearing, that the petitioner lacks cause of action, that the petition is hopelessly time barred the petitioner is estopped by his work and conduct to file the instant petition. On factual side, the respondents also resisted the grievance petition with full vehemence.
5. Evidence of the parties recorded. The petitioner appeared in person as PW-1 and he tendered his duly sworn and signed affidavit Exhibit P/1, copy of appointment letter Exhibit P/2, copy of charge sheet and statement of allegation Exhibit P/3, copy of reply to charge sheet Exhibit P/4, copy of inquiry report Exhibit P/5, copy of final show-cause notice Exhibit P/6, copy of show-cause notice Exhibit P/7, copy of draft letter Exhibit P/8, copy of promotion letter Exhibit P/9, copy of exoneration letters Exhibit P/10 to Exhibit P/11, copy of decision of review petition Exhibit P/12, copy of departmental appeal Exhibit P/13, copy of letter of rejection of departmental appeal Exhibit P/14, copy of grievance notice Exhibit P/15, copy of cheque realization register Exhibit P/16, copy of letter of personal hearing Exhibit P/17, copy of letter dated 12-04-2016 Exhibit P/18, copy of appeal Exhibit P/19, copy of service regulation Exhibit P/20, copy of seniority list Exhibit P/21, copy of salaries slips. Exhibit P/22 (04 pages), copy of circular dated 11-12-2012 Exhibit P/23, copy of letter dated 10-01- 2013 Exhibit P/24, copy of adjustment advice dated 31-03-2013 Exhibit P/25, copy of statement of receipt and issue Exhibit P/26 (50 pages), copy of inquiry report by Mr. Aizaz-ul-Hassan Exhibit P/27, copy of inquiry report of Khalid Bashir Exhibit P/28 and copy of inquiry report by Tanvir Butt Exhibit P/29.
6. The respondents examined Tanveer Anwat Butt, Manager (F&A) Investigation office as RW-1 and he tendered his duly sworn and attested affidavit Exhibit R/1 which also contains his signatures, attested copy of order of preliminary investigation dated 13-08-20 13 Exhibit R/2 and attested copy of reference of enquiry Exhibit R/3, attested copy of order of inquiry dated 29-01- 2014 Exhibit R/4, attested copy of inquiry report Exhibit R/5 (05 pages). He also relied upon inquiry reports exhibited by the petitioner in his evidence as Exhibit P/27 to Exhibit P/29.
7. I have heard the arguments of Labour Representative for the petitioner and learned counsel for the respondents.
8. The Labour Representative for the petitioner after reiterating the contents of grievance petition and evidence on record has further argued that petitioner has un-blemished 20 years service at his credit and is still working as Senior Office Assistant in the respondents Corporation. He has also argued that the petitioner was never subjected to any disciplinary proceedings prior to the impugned proceedings and the petitioner has been dealt with discrimination manner on the basis of time barred charge sheet. The Labour Representative for the petitioner has relied upon 2010 SCMR 253 , 2001 SCMR 931 , 1997 PLC 34 and 1992 PLC 1023 in support of his arguments.
9. On the other hand, the learned counsel for the respondents after reiterating the contents of written reply and evidence on record has further argued that petitioner has committed irregularities during course of his duties and thereafter he was served charge sheet with statement of allegations, show-cause notice in time. He has also argued that during inquiry no illegality could be pointed out by the petitioner side and the petitioner was charged under State Life Employees (Service) Regulations, 1973 and under the Standing Orders Ordinance, 1968 and then the demotion has been imposed only for one year because the petitioner has admitted guilt during inquiry proceedings.
10. I have considered the arguments of both the parties and perused the record available on file carefully .
11. I would come through the cross-examination of the petitioner conducted by the learned counsel for the respondents, the petitioner admitted that vide letter dated 27-06-2013 of Regional Chief, it was reported that two premium receipts were back-dated and in that regard inquiry should have been conducted. He further admitted that on 13-08-2013 an order to conduct departmental inquiry was passed and Tanveer Anwar Butt was appointed as preliminary inquiry officer and thereafter Masroor Ahmed Khan conducted the final inquiry and Tanveer Anwar was appointed as departmental representative. He admitted that during preliminary inquiry Exhibit P/29, the inquiry officer held him responsible him for issuance of back-dated receipts through opening of his allotted login in F&A.
He denied that due to his alleged guilty acts, Area Manager , Multan Zone was given undue benefits of Rs.
1462330/-. He admitted that along with his other employees who were held guilty during the preliminary inquiry dated 15-09-2013, he was issued final show-cause notice and he was demoted to lower post. He denied that since he remained involved in issuance of back-dated 2nd year premium receipts deposited through personal cheque of Rs.206000/- without late fee on 07-01-20 13 and issuance of personal cheque of Rs.5000/- against late fee on 11- 01-2013 with collection dated 31-12-2012 and he issued receipt No.55818 on 14-01-2013 of lapse policy during the process of channel charge as difference of 2nd year premium whereas request of wavier of late fee was rejected by the principal of fice on 28-01-2013.
12. Conversely , the RW-1 denied his knowledge that the petitioner has never been charged and served a show- cause notice and subjected to any departmental proceedings prior from the matter in controversy in this grievance petition. He deposed that the post of Cashier do not exist in the respondents Corporation rather the suitable persons are assigned the duties of the Cashier with designation and allowance of cashier . Mostly the employees of F&A department are assigned the additional duty of cashier and after closing month, the same are sent back to their respective seats after changing their passwords under the supervision of Zonal Accountant and incharge cash counter .
13. From perusal of record the charge sheet Exhibit P/3 was issued against the petitioner on 21-11-2013 for issuance of two back dated receipts without late fees on 07-01-2013 with closing date of 31-12-2012. Meaning, thereby that the charge sheet was issued after lapse of more than 10 months period from the date of occurrence of incident. It is pertinent to mention here that as per provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the respondents were required to serve the charge sheet and show-cause notice upon the petitioner in time and to hold regular inquiry against the petitioner also within time.
Surprisingly , in this case, it was decided by the respondents management that the services of the petitioner be demoted vide impugned demotion order dated 14-10-2015 on time barred charge sheet, therefore, this action of the respondents/ management on the face of it is illegal, without justification and jurisdiction as well as not sustainable in the eyes of law and the petitioner being a permanent workman cannot be demoted from service. In This regard, the August Supreme Court of Pakistan in case Hafeez Shah and 3 others v. United Bank Limited reported in 2001 SCMR-P-931 has held as under:-- "provisions of Section 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 were mandatory and their non-observance would vitiate the proceedings. Neither charge sheet, show-cause was duly served upon the employee nor was any opportunity of hearing after completion of alleged inquiry given to them. The proceedings with regard to dismissal of employees having been conducted in violation of natural justice and law , same could not be sustained".
14. Similar , the Hon'ble Peshawar High Court, Peshawar in reported judgment 1997 PLC 34 has held as under- "---S.O.15(4)---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan, (1973), Art.199--- Constitutional petition---T ermination of petitioner's services---Charge-sheet should be issued to workman within one month of misconduct committed or within one month of misconduct having come to notice of employer---Charge-sheet having been issued beyond statutory period of one month was time- barred and no action could be taken against petitioner thereunder---Apart from time-barred charge-sheet General Manager of Mill was himself prosecutor , executor , as well as witness---Such conduct would hit at the very root of justice, enquiry and fairplay which could not be sustained in law--- Petitioner being workman, charge-sheet issued to him was time-barred and inquiry conducted against him was violative of principles of equity , natural justice and fairplay---Orders of labour forums whereby they had declined to give status of workman to petitioner were set aside and petitioner was reinstated with effect from date of his dismissal with all back benefits".
15. The respondents were legally bound during the inquiry proceedings to call and examine the Zonal Accountant when it was version of the petitioner that he accepted the requisite receipts on the direction of Zonal Accountant and he was deputed to perform his duties under the instructions of the Zonal Accountant. On the other hand, it was very difficult for the petitioner being subordinate to produce evidence agains t the high-ups from the same establishment. It is admitted fact that the petitioner was performing his duties temporarily under the Zonal Accountant but the Zonal Accountant has been exonerated during inquiry proceed ings and the petitioner has been dealt by the respondents B discriminatory . The petitioner is admittedly still serving in the respondents Corporation.
Now it stands established that the respondents dealt the petitioner with discrimination which is not tenable under the law. The Hon'ble Supreme Court of Pakistan in case of PTCL v. Muhammad Zahid and 29 other s reported in 2010 SCMR 253 , it was observed by their lordships that:- "Case of the employees/respondents was that they were employed on daily wages and not regularized despite having rendered service for period of more than 2 years as contract employees renewed from time to time; that they were being discriminated as against the other operators performing service permanently with the PTCL or having been regularized in due course as operators in the International Gateway Exchange performing similar functions in Exchange amounted to having been grossly violated as against the guaranteed rights under Arts. 2-A, 4, 25 of the Constitution by depriving them of their emoluments besides all other service benefits being paid to other operators performing service in the said Exchange and similarly placed that such-like employees were for all purposes regular employees and to be dealt with as such was unexceptionable irrespective of the status of the employees which might be that of a "worker" or a "civil servant" or the "contract employees" having no nexus to the maintainability of the constitutional petition on the ground of discrimination meted, out to them".
Reliance is also placed upon 1992 PLC 1023 .
16. For what has been discussed above, I accept the instant grievance petition and set-aside the impugned demotion letter dated 14-10-2015 being illegal, ab-initio void and nullity in the eyes of law. The respondents are directed to bring back the petitioner in position of Senior Office Assistant as he was before demotion to lower post with back benefits expeditiously . No order as to costs. File be consigned to record after due completion.