1. The applicant filed this application under section 25-A of the I.R.O. 1969 stating therein that he is a permanent workman employed by the respondent as mechanic in Central Workshop and he was charge-sheeted vide charge-sheet No,602/CES/428/Admn/86, dated 24-6-1986 on the basis of complaint of the Works Manager North Karachi Depot. He submitted that even the record of the Corporation respondent shows that at the relevant time the applicant was present and remained present at his place of duty and there is nothing on the record of respondent to show or prove the absence of the applicant from his place of duty at Central Workshop. He submitted that the charge-sheet is time-barred. He further submitted that he had fallen ill and it was on the record of the Corporation alongwith the medical certificate even then the Enquiry Officer conducted ex parte enquiry against him although notice of enquiry was not served on him and the notices were received hack by the respondents unserved. Thereby he was deprived of opportunity to defend him. He requested the respondent to provide him chance to defend him, in reply to show-cause notice but he was not allowed any chance and the respondent dismissed him and the said dismissal is mala fide and colourful exorcise of the authority. Being dissatisfied with the dismissal he served a grievance notice on the respondents. The applicant prays for reinstatement with full back benefits as he states that he has been rendered jobless which still continues.
2. The respondents filed legal objections that the Court has no jurisdiction as the respondent K.T.C. has been declared under Sind Essential Services Maintenance Act, 1958 and validity extended for 6 months with effect from 8-7-1987. The Court heard both the sides and overruled this legal objection by order dated 21-4-1987. The respondents then came up with another legal objection that the applicant had not impleaded the proper person and he should have impleaded Manager Workshop as he was dismissed by the Manager Workshop. This objection was also heard and overruled by this Court by order dated 16- 11-1987 and it was held that K.T.C. was impleaded by the applicant and the Manager also acted on behalf of the K.T.C. to remove or dismiss the applicant and the Manager did not act in the personal capacity. The respondent challenged this order of the Court before the Sind Labour Appellate Tribunal and the Hon'ble Tribunal by order dated 25-4-1988 upheld the view taken by this Court.
3. The respondents filed the reply statement admitting that the applicant was employed as a mechanic in the Central Workshop and that he was charge-sheeted on the complaint and that charge-sheet was within time. The respondents pleaded the applicant was given full opportunity but he failed to avail the same. The respondent therefore prayed for dismissal of the application of the applicant.
4. The applicant examined himself and closed his side while the respondents led the evidence of Enquiry Officer Mr. Blund Akhtar and then closed their side.
5. I have heard the learned counsel for the both the sides and I have perused the record minutely.
6. From the perusal of the pleadings of the parties it seems that the case hinges solely on the enquiry conducted against the applicant by the Enquiry Officer Blund Akhtar. Hence the Court feels necessity of determining whether the said domestic enquiry is conducted in accordance with law and is sustainable in the eyes of law.
7. Mr. Blund Akhtar the Enquiry Officer of the respondents in his cross-examination has stated that he conducted the enquiry against the applicant in absence of the applicant regarding charge-sheet No, 602, dated 26-6-1986 as per record available with him. His attention was again drawn to the particular date and he again stated that he is sure that the charge-sheet No: 602 is dated 26-6- 1986. His attention was drawn to the Annexure 'K' filed by the respondents and he stated that it is correct that Annexure 'K' filed by the respondents shows that the charge-sheet No, 602 is dated 24- 6-1986, and that it is correct that office order regarding the dismissal of the services of the applicant shows that the charge-sheet No, 602 is dated 24-6-1986. His attention was also drawn to the Annexure T (the enquiry report) filed by the respondents wherein para. 2, he has stated that it is correct that in para. 2 in Annexure T he has himself written in his own hand that the charge-sheet No, 602 is dated 24-6-1986. Thus such admissions by the Enquiry Officer shows that he held the enquiry against the applicant on a charge-sheet dated 26-6-1986 whereas the applicant was required to face the charge-sheet dated 24-6-1986. The said Enquiry Officer further stated in the cross-examination that the record available with him shows that the charge-sheet was not delivered to the applicant as it does not show the receipt, His attention was drawn to the Annexure 'C' (the notice issued by the respondent) and he stated that it is correct that the Annexure 'C' filed by the respondents is the notice issued by respondents to the applicant informing him on line No, 4 that the applicant had received the charge-sheet on 25-6-1986 at 12-30 noon. Thus it becomes clear that the respondents pleaded falsely that the charge-sheet was served on the applicant, contrary to their own record. The attention of this Enquiry Officer was drawn to the report on basis of which the applicant charge-sheeted and he stated that he cannot say whether the name of the applicant was later on inserted or manoeuvred in the said report. He said that the person who has put up this letter (report) may be able to say anything about it. This Enquiry Officer even did not feel necessity to enquire into the fact as to where this accused applicant was posted in the days of the incident. He has stated that he has no personal knowledge as to whether the applicant was posted anywhere in those days. But he stated that he can say after referring the record that the applicant was posted at North Karachi Depot and the incident took place at North Karachi. He further stated that he does not know whether the applicant used to draw the salary from the North Karachi Office or not. On the other hand on the perusal of the reply statement filed by the respondents in the very 1 para. shows the respondents have admitted that the applicant was employed as mechanic in Central Workshop. In the application, the applicant had also pleaded specifically that he was posted in those days and specially on that day of alleged incident he was posted at Central Workshop Depot and he remained present at Central Workshop Depot. In such circumstances it was obligatory on the part of the Enquiry Officer to send for the record and to ascertain as to whether applicant had drawn the salary from Central Workshop Depot or North Karachi Depot. He should have also in such circumstances necessarily examined the Manager of the Central.
8. Workshop to ascertain whether applicant was actually posted at Central Workshop and he remained present at Central Workshop or not on the alleged date and time of incident. This talented Enquiry Officer has failed to do so for the reasons best known to him. This Enquiry Officer has stated in the cross-examination that he had issued a letter dated 24-7-1986 requiring the applicant to appear in the enquiry alongwith the K.T.C. Doctor's certificate. He stated that he had sent that letter to the applicant by post. He further stated that it is correct that envelope was returned and it does not show anywhere that the applicant has refused to accept it. He further stated that the letter which was issued by him, was not served on the applicant. His attention was drawn to the address on which the said letter was addressed to the applicant and after verifying the record he stated that the address of the applicant as per record and furnished by Central.
9. Workshop Depot appeared to be "Muhammad Saleem Mechanic T.No, 7269, House No, 305, 17 Gazi Nagar Gate 23 Usmanabad, Karachi-3". The record shows that the letters addressed by him to the applicant were sent on different address being House No, 30816 Street No, 23 Gazi Nagar Usmanabad, Karachi-36. When his attention to that fact was drawn he came out with an explanation that the said address was received from the letter received from the applicant. Thus it shows that he did not bother to repeat the issuance of notice on the correct address of the applicant and thereby deliberately deprived the applicant from availing the opportunity of defending himself in the domestic enquiry. The perusal of the enquiry papers shows that this Enquiry Officer has simply examined one person Muhammad Ishaque the Manager of the North Karachi Depot and none else. His attention was drawn to the letter dated 7-8-1986 addressed to the applicant by respondent regarding enquiry which is Annexure 'H' to the affidavit and he stated that it is correct that therein it is mentioned that Mr. Shams Din Abro was the reporter who reported against the applicant. This learned Enquiry Officer admitted that it is correct that he did not examine the said reporter Mr. Shams Din Abro. The perusal of the report shows that the Contractor was conducting the work of fabricating bodies of buses on the said date when allegedly applicant disconnected the electricity and thereby the work could not be conducted. This learned Enquiry Officer has stated in the cross-examination that he does not know the name of the Contractor and it is correct that he did not examine the contractor in the enquiry. He further admitted that he did not examine any impartial witness in this enquiry. He further stated that it is correct that he did not put any single question to any witness in the enquiry to ascertain any fact. The perusal of the enquiry report in para. findings, it seems clear that this learned Enquiry Officer has not even given his verdict that he has found the applicant guilty of the misconduct, or that he is satisfied that the applicant is guilty of the misconduct. The above procedure adopted by this learned Enquiry Officer distinctly and definitely smells of mala fides on his part. Such enquiry can neither be deemed to be in accordance with law, nor it can be said to be sustainable in eyes of law. In view of such above- stated and above-discussed facts I am of considered opinion that the applicant has been illegally dismissed. Hence I deem it proper and just to order that the applicant should be reinstated by the respondents within one month of this order with all back benefits. The applicant had pleaded specifically in the application that he continues to be job less. The respondents did not adduce any evidence to prove that he had been on any job during this period of un-employment.