' As disclosed in the petition, Ali Hasan petitioner had joined the service of the respondent as a conductor on 15-7-1974. He performed his duties in that capacity till he was dismissed from service vide an office order No, 105 issued on 24-1-1977 on the allegation that while on duty on 12-3-1976, he had not issued E.L.T. To a passenger and had pocketed and thus committed misappropriation of the fare amounting to Rs,3.60.
2. Feeling aggrieved of the same, he has knocked the door of this Court, after service of the necessary grievance notice upon the respondent, contending that the dismissal order is void ab- initio and is not sustainable in law on the following among other grounds:--
(a) That the charge-sheet served upon the petitioner is in violation of the provisions of Ordinance VI of 1968.
(b) That the findings of the Enquiry Officer are perverse inasmuch as the same were not based on the evidence brought on record in the enquiry proceedings allegedly conducted in utter disregard of the principles of natural justice.
(c) That the suspension order No, 2161, dated 23-12-1976 was inoperative, as the same was issued after completion of enquiry and also for seven days instead of four days at a time.
(d) That the opportunity of personal hearing before passing of the impugned dismissal order was not afforded and thus the petitioner was condemned un-heard.
' Accordingly, describing, challenging and assailing the impugned order as to be of no legal effect and significance, the petitioner has resorted to this action under section 25-A of I.R.O. Praying that the order in question be set aside and that he be directed to be re-instated into service with all consequential benefits.
3. Controverting, repudiating and reversing the allegations, averments and the claims of the petitioner the rejection of the petition has been urged by the respondent.
4. Appearing as his own witness, the petitioner has reiterated the version as contained in the petition. His documentary evidence comprises of reply to the charge-sheet Exh. A.1, carbon copies of Enquiry Proceedings and Report Exhs. A.2 and A.3, copy of the suspension order Exh. A.4, show- cause notice and its reply Exh. A.5 and Exh. A.6 and the dismissal order Exh. A.7-T.T.40. Photostat copy of the charge-sheet and Photostat copy of the ticket find a mention on the file as Exh. P.1 to Exh. P.3 respectively. No oral evidence has, however, been adduced on behalf of the respondent.
This is the entire evidence available on the record for the determination of the matters in controversy.
5. The learned counsel appearing for the petitioner has contended with vehemence that the order in question is not sustainable in law as it is based on the data in complete disregard of the provisions of the relevant law which has been violated. He has pointed out that the alleged misconduct was committed on 12-3-1976 whereas charge-sheet Exh. R. 2 was issued to the petitioner on 21-9-1976 which is in contravention of the provisions of Standing Order No, 15(4). He has further drawn my attention towards the suspension order Exh. A.4 which contemplates suspension of the petitioner for seven days, with effect from 3-1-1977 to 9-1-1977. The same is stated to be against the relevant provisions contained in Standing Order No, 15(5). It has also been asserted that the Enquiry Report forming the basis of the dismissal is perverse and thus cannot be given any credence and no significance can be attached to it. Lastly, it has been urged that the petitioner having been denied the right of personal hearing there is a clear cut violation of the established principles of 'Natural Justice'. He has, therefore, maintained that the order in question having not been passed in conformity with the provisions of law, the same is liable to be set aside and the petitioner is entitled to be re-instated with full back benefits. In support of the contentions 1977 PLC 708, 1970 PLC 241 and 1970 PLC 275 have been relied upon.
6. On the other hand, the learned Assistant Legal Officer appearing on behalf of the respondent has emphatically argued that where domestic enquiry is held properly with full defence opportunity, and no request for personal hearing is made, the providing of opportunity for personal hearing is not fatal and it does not render the dismissal order as illegal. According to him, the petitioner had neither desired for personal hearing nor had made any application in this behalf and at least there is no data to suggest that he had asked for the same. 1976 PLC 868 has been quoted in this context. 1977 PLC 668 has been referred to emphasize that where enquiry proceedings show enough substance and indirect evidence to prove the guilt of the accused workman the petition under section 26-A is liable to be dismissed. He has accordingly remarked that the petition merits and deserves rejection.
7. There is no denying cavil, dispute and controversy to the effect that the Bus of the petitioner was checked by Sadiq Shah Checker on 12-3-1976. In other words, the alleged misconduct had been committed in March, 1976. Now it is also an admitted proposition and factor that the charge-sheet was served upon the respondent on 21-9-1976, i,e, six months thereafter. Recourse can usefully be had to Exh. R.1 and Exh. R.2 in this behalf. There is no evidence or data on the file to indicate or show that the respondent had come to know of the alleged misconduct sometime later. It is thus in clear contravention of the provisions embodied in Standing Order No, 15(4) of Ordinance VI of 1968. This necessarily follows that there is great force in the contention of learned counsel for the petitioner that the super-structure based on Exh. R.2 is bound to fall to the ground. The charge-sheet issued to the petitioner was hopelessly barred by time and as such the enquiry proceedings also stood vitiated. Similarly, the suspension order Exh. A.4 vividly contravenes the provisions of Standing Oder No, 15(5) which prescribes suspension of a workman for a period not exceeding four days at a time.
8. The upshot of the whole discussion is that the order in question is not sustainable in law.
Resultantly, the same is set aside and the petitioner is directed to be re-instated into service. There is, however, no question of allowing or awarding him the back benefits because his dismissal is being set aside on purely technical points and he has not been proved to be not guilty. Parties, in the circumstances of the case, are left to bear their own costs of this petition.