' A.
0. RAzIuR REHMAN (MEMBER).-The appellant, who was a SeniorGodown-keeper in the Pakistan Ordnance Factories, Wah Cantt., was transferred from A-20 section of the godown to the Central Receipt Area, by an order dated 30th August, 1980. The banding over and taking over took place on 25th May, 1981. After some time, i. e. On 14th December, 1981, according to the appellant, he fell ill and did not attend office until 2nd January, 1982. When he reported for duty, he produced medical certificates in proof of his illness. He was, however, placed under arrest on charges of theft and misappropriation of property, for which an F.I.R. Had been registered with the police on 13th December, 1981. Prior to that a letter, dated 14th December, 1981, had been issued to him, stating that be was absconding from duty unauthorisedly, with effect from the same date, and directing him to resume duty forthwith, on pain of action under the Essential Services Act. Since he did not report for duty for some time, a charge-sheet was issued to him on 26th December, 1981 on the ground of absconcion from duty, misappropriation of Government stores and intent to defraud, as evidenced by forged entries in the Bin Cards of certain items of store in his charge. He replied to the charge-sheet on 4th January, 1982, stating that he had not been absconding from duty, in proof of which he was producing medical certificates. As regards the shortage of articles, he stated that there was no shortage but difference in the size number of the articles which he was prepared to explain and clear on the spot. He, therefore, requested for permission to attend the Godown and get the store checked for verifying the discrepancies. He followed this up by another application the next day, in which he repeated his request for being given an opportunity to explain the position. He further stated that, since nobody else could provide the necessary information and to prevent further shortage and explain the difficulties that have to be faced at the time of handing over charge, he should be put back on his job in the Godown. In reply to the explanation given by the appellant, the Superintendent (Stores) of the P.
0. F., Wah Cantt. Issued him a show-cause notice on 19th January. 1982, informing him that his explanation had been considered and the Enquiry Officer had found him guilty of the offence with which he was charged. He further informed him that more discrepancies had been detected in the stock of "TC Tips" and, therefore, having considered all the available evidence, it had been decided to impose one of the major penalties on him. He was, therefore, called upon to show cause within 10 days as to why the penalty as proposed should not be imposed on him. This show-cause notice was served on the appellant through the S. H.
0., Police Station, Wah Cantt., since he had been placed under arrest on 2nd January, 1982 and was supposed to be in Police custody. No reply to this show-cause notice was received from the appellant and so, on 31st January, 1982, a reminder was sent to him in the judicial lock-up, although the address shown in the same was that of his village home. In reply to this, the appellant stated that he was in the jail and mentally upset on account of that and, as such, unable to explain the matter. He, therefore, requested for time to do so after his release on bail. The appellant was released from custody on 30th May. 1982, but he did not get any information about any further development in the matter. Nevertheless, according to him, he learnt some time afterwards that he had been dismissed from service. Thereafter, on 2nd February, 1983, he preferred an appeal before the Chairman, P.O.F., Wah Cantt., who rejected the same on 8th March, 1983. Being aggrieved by this rejection, he came in appeal before the Tribunal on 30th January, 1983. The appeal was admitted and it was finally heard on 12th March, 1984 and 14th March, 1984. On the basis of these hearings, this judgment is being passed.
2. At the outset, a preliminary objection was raised, on behalf of the respondents, that the appellant was a workman and. Therefore, he was debarred for appealing before the Tribunal, which was meant for civil servants and not workmen. This point was contested on behalf of the appellant and the matter was debated at length by both the parties. In this connection, a request was made, both orally and in writing, by the learned counsel for the respondents, that, in view of the nature of the case, it was desirable for the ends of justice that the evidence of two witnesses, the Works Manager, Central Store, P. O. F., Wah Cantt. And the Store Holder, P.O.F., be recorded for facilitating proper adjudication on the point. We did not consider it necessary to formally examine and cross- examine these two witnesses. But, we heard them and took note of the information furnished by them. Mr. Noor-un-Nabi, the Works Manager (Grade-18) informed us that the appellant was incharge of the sub-godown for spare parts, that these were mostly small items and were kept in this sub-godo wn and that, for handling heavy items, one or two labourers, as and when the situation required, were detailed to help him. The other person Mr. Muhammad Ramzan. Bhatti, Store Holder (Grade-16) who had supervisory charge of 9 sub-godowns in building No, A-20, informed us that the appellant was incharge of sub-godown D-6 meant for machine spares and machine tools, that in this said godown mostly small and precious items were kept that large parcels were also received some time and when this happened, labourers were provided for loading and unloading the consignments. On the basis of the information supplied by these two officers of the department, the learned counsel for the respondent relied on sub-clause (xxvi) of Schedule II to the Workmen's Compensation Act, 1923, read with section 2 (n) of the Act. He contended that the appellant fell within the category of workman and did not qualify for being treated as a civil servant. In this connection, he also referred to the Tribunal's judgment in Appeal NO. 77 (R)/82, in which it has been held that the appellant, a Senior Godown Officer in the P.O.F. Wah Cantt. Was a workman and not a civil servant because, according to sub-clause (xxvi) of Schedule II to the Workmen's Compensation Act, 1923, any person employed in the handling or transportation of goods, in or within the precincts of any warehouse or other place in which goods are stored and in which, on any one day of the preceding twelve months, 10 or more persons have been so employed, is to be treated as a workman. In refutation of this point of view, it was contended on behalf of the appellant that the Tribunal's judgment in the other appeal case could not be applied to this case, because the facts and circumstances of that case were not identical to those of the present one. It was stated that in the other case, the detailed reasons, for which the Tribunal had held the appellant to be a workman, had not been spelled out and, therefore, it could not be held that the decision in that case should be made applicable here also. On the other hand, it was pointed out by him, on the basis of the definition of workman given in the Workmen's Compensation Act, 1923, vide section 2 (n) read with sub-clause (xxvi) of Schedule II to the Act. To be a workman, a person had to be employed in the handling or transportation of goods and that this had to be within the warehouse or other place where goods are stored. In addition, it was necessary that 10 or more persons must have been employed in the said place on any one day during the previous 12 months. So far as the appellant was concerned, it was pointed out that neither he was engaged in the handling of goods or their transportation nor was the godown, where he was employed, a place where 10 or more persons had been employed during the preceding 12 months in the handling or transportation of goods.
3. From the duties and responsibilities of the Godown Keeper, as laid down in the Manual of Factories Central Store Depot, P.
0. F., Wah, vide, page 41 thereof, it is seen that such items have been listed as responsibility for safe custody of stores ; correct maintenance of record, checking of actual balances with those shown in the accounts ; assisting Store Verification Team in stock-taking, ensuring that all items in the stock are protected or given preservative treatment and properly stored for preventing deterioration, Receiving items after due check/counting. Payment etc. And opening/closing of the godown are also some of the duties and responsibilities listed. The respondents relied on these items for their stand that the Godown Keeper in the P.
0. F. Was required to physically handle store or transport them. In this connection, they drew our attention particularly to the fact that some items like Standard Carbide Tips were of very small size and light in weight and did not require handling by a labourer and, therefore, the Godown Keeper who was bound to handle these items himself, instead of requiring labourers to do the job, would, ipso faeto, have to be treated as a workman. It was also pointed out on their behalf that although the appellant was incharge of a part of a sub-godown called the Standard Parts Subgodown (bearing No, D-6), this sub-godown was actually only a part of the main building bearing No, A-20, in which a large number of labourers were employed on the work of handling and transportation of goods. From the appellant's side, it was pointed out that neither the appellant was employed in the handling or transportation of goods kept in the godown nor were, at any time during the previous 12 months, more than 10 persons employed on such work in his godown. It was further pointed out that the actual duties and responsibilities, listed at pages 41-42 of the Manual referred to, clearly indicated that the job of the Godown Keeper was clerical-cum-managerial and not physical at all.
4. We do not see any reason for disagreeing with this point of view. Not only the duties and responsibilities, as shown in the Manual, clearly show that the Godown Keeper was not employed on the work of handling and transportation of articles kept in store in his godown, what he was required to do was to receive and keep the stock in his charge or to despatch them somewhere else, as and when ordered. Even the very -designation given to him, namely, Godown Keeper has no other meaning than that he is incharge of the godown and not that he is employed on manual work required to be one in the godown. For this reason alone, if for no other, we cannot see any justification for treating him as a person employed in the handling and transportation of goods.
But, even if we were to accept the view that most of the items kept in stock by the appellant in his godown were small in size and light in weight and he did not need the services of labourers for handling them, we cannot treat him as a workman because he was handling such articles for the purpose of storing them. If the work was of such a light nature that it could be performed by a single person without the assistance of any other, it is apparent that 10 or more persons could not have been employed on the job on any particular day during the previous 10 months and that being so, the question of treating the appellant as a workman as defined in the Workmen's Compensation Act could not arise at all.
5. For the above reasons, we have no hesitation in holding that there is no merit whatsoever in the stand of the respondents that the appellant is a workman, as defined in the Workmen's Compensation Act and that he is not a civil servant as defined in the Civil Servants Act. In view of this finding, we reject the preliminary .Objection of the respondent and proceed to decide the appeal on merit.
6. During the course of discussion on the above issue, the learned counsel for the respondents made a prayer for the formal recording of the evidence of the two officers who furnished some information before us as already observed. It was not considered necessary by us to record the formal evidence of these witnesses, to subject them to cross-examine by the other party, and to give a finding on the evidence tendered by them. We only took note of the information furnished by them and with reference to the charter of duties of Godown Keepers, laid down in the Manual and the relevant provisions of the Workmen's Compensation Act, 1923 and the Civil Servants Act, 1973, decided the question.
7. From the documents on record, it is seen that, although a charge-sheet was served on the appellant on 26th December, 1981 and he, in reply to the same, had requested for an opportunity to explain the discrepancies and some sort of investigation was held by an officer of the rank of Store Holder, no formal departmental enquiry, under the E & D Rules, which should have been applicable to him because of his being a civil servant, was held. Nevertheles, a show-cause notice was served on him on 30th January, 1982, alongwith the report of the investigation carried out by the departmental officer, to which also, the appellant gave his reply on 4th February, 1981, in which he stated that he was mentally upset and not immediately in a position to explain the points raised in the report of the Investigating Officer. All the same, he was dismissed from service, but not informed in writing, although he was, after release from jail verbally told that he had been dismissed by the oral order of respondent No, 2, namely, the Stores Superintendent P.O.F Wah Cantt. The said respondent in the Written statement submitted before us, did not clearly state that any dismissal order was passed in writing or that such an order was conveyed to the appellant.
What he stated was only that.
"The appellant was clearly told in the show-cause notice, dated 19th January, 1982 that a major penalty is being imposed on him."
' During the hearing also before us, the point made by the appellant was not refuted but what was asserted was that the appeal preferred by him on 2nd February, 1983 was rejected on 8th March 1983. From these facts and circumstances, we have no option but to hold that no dismissal order was conveyed to the appellant at any time.
8. It is also seen from the record that no formal departmental enquiry was held at all. If, as claimed by the respondents, they had been treating the appellant as a workman and not as a civil servant and, therefore, they were not bound to hold departmental;proceedings under the (E & D) Rules, 1973, they should have followed the disciplinary rules relating to Regular Temporary Establishments, framed in 1956, under which, vide paragraphs 8 (2) (c) and (d), a formal enquiry should have been held, evidence recorded and further action taken thereafter and a copy of the order passed by the competent authority supplied to the individual, vide paragraph 11 ibid. The departmental representative and the learned counsel for the respondents admitted at the bar that no recording of evidence had been undertaken, but they insisted that the 1956 rules had not been violated and, therefore, the action taken against the appellant could not be impugned. It was claimed, on behalf of the respondents, that the dismissal order had been passed by the competent authority, according to rules. However, neither the original order, nor its copy was produced befare us. We, therefore, refuse to accept the stand of the department that any formal order was passed and communicated to the appellant, as required under paragraph 11 of the 1956 Rules.
9. In the light of the foregoing, we are firmly of the view that neither the 1956 Rules had been correctly followed nor the proceedings undertaken under the (E & D) Rules, 1973. While no evidence was recorded, nor the appellant afforded an opportunity to cross-examine the witnesses, it is absurd for the respondents to contend that they had not violated the rules on which they are placing their reliance to defend the order passed against the appellant.
10. Since neither the E & D rules for the departmental proceedings were followed nor even the l956 rules for the departmental proceedings adhered to, we are unable to treat the proceedings as valid for the purpose of the punishment awarded to the appellant.
11. Even on merits, we find that, during the investigation, nothing concrete had been found by the Investigating Officer against the appellant. It has been noted on the Stock Verification Sheet attached to the so-called enquiry report, that the appellant had offered some explanation of the deficiencies noted against a number of items. The Investigating Officer had not given any finding on these points, but he had only opined that the matter needed further investigation by a technical expert. There is nothing to indicate that a technical expert had been consulted and a clear finding arrived at. Even in regard to the other items, about which the Stock Verification Sheet shows actual deficiencies, the stand of the appellant was that he had handed over these items to Mr. Ghulam Sarwar, Senior Godown Keeper, who had taken over eharge of the sub-godown from him on 25th June, 1981. In reply to a question put to him during investigation, he had actually stated that entries in the record, as well as transactions after the handing over of charge, were being made by Mr. Ghulam Sarwar and after his absconsion, by two other persons, namely, Ata-ur-Rahman and Muhammad Ramzan Bhatti, and, therefore, he could not be held responsible for the shortages, if any. No action appears to have been taken to refute this point made by the appellant and, therefore, it cannot be said that the appellant's responsibility for the shortage had been conclusively established. For all we know, he may have been responsible, either entirely or partly.
But, it is equally possible that shortages took place after he had handed over the charge.
12. In the light of the above, we hold that, neither on facts, nor in law can the impugned order be sustained. We, therefore allow the appeal and set aside the order of dismissal passed against the/ appellant.
13. However, from the report of the investigation carried out by the Stock Holder, we do find that when the Store Holder carried out the investigation, he found : "(a) His standard of storage is very poor.
(b) Stores is lying in haphazard and mix up condition.
(c) Stores pertaining to one folio is lying in different places.
(d) No location Registers of his items is available."
' It was also observed by him that, during the previous Court of enquiry also, the appellant had been guilty of discrepancies and had been pena lised for the same. Therefore, it cannot be said with any degree of certainty that the appellant is absolutely innocent, in so far as the charges preferred against him are concerned, or that other charges, in place of those already preferred do not lie against him. All the same, he cannot be punished without proper enquiry under the (E & D)
Rules, 1973. It would, therefore, be open to the department to proceed against the appel- I lant under the rules, if so advised, and deal with the matter as the facts and circumstances demand.
14. In the result, we have no option but to allow the appeal and order that the appellant shall be treated as having never been out of service.
15. With the above orders and directions, the appeal is allowed.
16. No order as to costs.