1. ' This application under section 25-A of the Industrial Relations Ordinance, 1969 has been filed by the applicant for his reinstatement in service with full back benefits.
2. ' The facts of the case as contained in the application in brief are that the applicant was appointed in the Respondent Establishment in the category of skilled worker in the year 1977. The charge- sheet was served upon the applicant for alleged theft of the employer's property. On the same day without considering the reply to the charge-sheet, Mr. S.A. Gul issued the order of suspension for holding of enquiry. The applicant submitted the reply of charge-sheet, dated 31-10-1981 and on the same day the enquiry was ordered. The enquiry was held. The applicant was not provided the copy of the issues upon which the enquiry was to be conducted. The enquiry report and second show- cause notice were not given to the applicant. Applicant was removed from service on 5-12-1981.
3. The applicant served grievance notice on 31-12-1981 and received reply on 14-1-1982. The applicant was not reinstated hence this petition.
4. ' Respondent was served and filed the reply statement. It is alleged that the applicant committed theft of the pieces of three copper brass-bars which were recovered from his motor cycle. The applicant was charge-sheeted under the orders of competent authority. Applicant sent his reply and the Management was not satisfied, hence domestic enquiry was ordered. Mr. S.A. Gul was appointed as Enquiry Officer. After completing the enquiry, the Enquiry Officer submitted his report holding the applicant guilty of misconduct. The Management agreeing with the findings of the Enquiry Officer, dismissed the applicant from service. The application is not maintainable in law as it has not been filed against the Management or employer.
5. ' The applicant filed his own affidavit-in-evidence (Exh. 3). He has produced copy of his complaint (Exh. 3/A), its reminder (Exh. 3/B). He has also produced letter for providing him assistance of his co-worker Karimullah (Exh. 3/D) and the Enquiry Papers (Exhs. 3/E to 3/K) and so also his statement recorded during enquiry (Exh. 3/L). He has been cross-examined and he has thereafter closed his side. Affidavit-in-evidence of two officers namely Mr. S.A. Gul and Mr. Taj Mohammad have been filed as (Exh. 5) and (Exh. 4) respectively. Mr. S.A. Gul has produced a statement of Mirza Saleem Beg (Exh. 5/A). Witness Taj Mohammad (Exh. 4) has produced letter of Enquiry Officer (Exh. 4/A) and its carbon copy (Exh. 4/B). He has also produced documents with his specimen signatures (Exh. 4/C). Both these witnesses have been cross-examined. The side of the respondent was thereafter closed.
6. ' I have heard the representatives of the respective parties at length and perused the record. Also perused the evidence produced by the parties.
7. ' The case of the applicant is that he has been condemned unheard, inasmuch as the enquiry was held in his absence. For the only reason that the authorities bore a grudge against him due to his union activities. It is also the case of the applicant that the Enquiry Officer Mr. S.A. Gul was an eye- witness and he had issued the suspension order and also acted as an Enquiry Officer and so also the order of dismissal has been issued by him. This practice is unknown to law, the representative of the applicant said, hence cannot be confirmed. I have carefully gone through the cross- examinations of the parties. It has been admitted by the Enquiry Officer S.A. Gul that two witnesses namely Eijaz and Umar, were examined at the enquiry but he did not take their signatures. He had also not given the copy of enquiry report to the applicant and so also the second show-cause notice. He has further admitted that he did not give a chance to him to examine the witnesses. He has admitted that he had only asked the applicant, orally, if he liked to lead any defence but not in writing.
8. ' Admittedly, Mr. S.A. Gul was an eye-witness to the alleged incident. The applicant as an accused had the right to cross-examine this officer. It seems that the said officer to avoid this situation had arranged to not as an Enquiry Officer. Thus the applicant, right at the outset was deprived of his opportunity to cross-examine this witness. Further, that this witness had issued the charge-sheet and the suspension order and also acted as an Enquiry Officer. When this witness was an eye- witness he should not have acted as an Enquiry Officer. Then, when he had issued the charge- sheet he stood disqualified from functioning as an Enquiry Officer. Clause 4 of Standing Order 15, requires that "the employer shall hold independent enquiries before dealing with charges against a workman". Expression "Independent enquiries" postulates not only that inquiry must be fair and impartial but must be conducted by a person independent and not connected with the charges.
9. ' As already mentioned, Mr. S.A. Gul had witnessed the incident and so also had issued the charge- sheet. Further, that he had issued the suspension order of the applicant, therefore, he could not be an independent person, as the show-cause notice was also issued by him. Hence the enquiry could not be conducted by him and was disqualified to hold an enquiry. Furthermore, that the incident was alleged to have taken place in presence of the said S.A. Gul, he was thus an important witness. It also seems that this officer had issued the dismissal order and as it appears from his admission, he is not an employer hence could not dismissed the applicant.
10. ' From the above discussed facts I am of a considered view that the enquiry was held in violation of the principles of natural justice and cannot be protected. Further, it does not appear to be fair and impartial. The same person is the accused and hence cannot be judge of his own cause. Reliance can be placed on 1979 PLC 118 and 1981 PLC 753. In the result, I hold that the enquiry held was neither fair nor impartial and in violation of the principles of natural justice hence illegal. The dismissal order passed on the basis thereof is also illegal and cannot be sustained.I have, therefore, no other alternative but to accept the petition and set aside the impugned dismissal of the applicant. The respondent is directed to reinstate the applicant in service within one week of this order with all his back benefits.