This order will dispose of the grievance petition filed under section 25-A of the I.R.O., 1%9 on 20-12- 1987 whereby the petitioner abovenamed has prayed for setting aside the dismissal order dated 22-7-1987 passed by the General Manager (A&P) of respondent against him and to direct the respondent to reinstate him in service with hack benefits.
2. Briefly the case of the petitioner is that he was Senior Skilled worker of the respondent posted in Blending Stock Yard to whom show-cause notice dated 31-12-1986 was served, alleging therein that he had attempted to rape Miss Sadia Irshad aged about six years daughter of Muhammad Irshad, semi-skilled worker on 21-12-1986 at about 12-00 noon time when she went to his house to deliver a message of her father and thereby committed an act subsersive of discipline which amounted to gross-misconduct as provided in Standing Orders 15(3)(h) and required of him to give explanation within three days as to why disciplinary action should not be taken. He was also suspended for four days w,e,f, 3-1-1987 which continued from time to time and thereafter he applied for Urdu translation of the complaint of Muhammad Irshad and the said notice but the same was refused and thereafter domestic enquiry was ordered to be held against him headed by Wing Commander Manzoor Elahi, Senior Manager which started with examination of Ali Hasnain Zaidi, Deputy Manager who was nominated as the prosecutor who was not allowed to be cross- examined. It is said that on the next day i,e, 16-3-1987 complainant Muhammad Irshad was examined and then on 17-3-1987 the alleged victim Saadia Irshad was examined but the petitioner was not allowed to cross-examine her. Then on 19-3-1987 Dr. Bilquis Azam and Dr. Mukhtar Hussain, Deputy C.M.O. were also examined and finally the enquiry report was prepared which is said to be not in accordance with law. It is contended that the alleged offence has not been committed at the establishment during the working hours and that the enquiry report has been prepared at the instance of Col. Muhammad Afzal who was annoyed with the petitioner because he was member of Peoples Workers Union which now not in his good books. It is further contended that the report of the alleged offence should have been filed with the police but the same was not done. Accordingly, petitioner sent a grievance notice dated 29-6-1987 requesting for withdrawal of the show-cause notice but no action was taken thereon and instead he was dismissed from service vide impugned order dated 22-7-1987 without affording him chance of personal hearing or second show-cause notice or the copy of the enquiry report although said Muhammad Irshad during the domestic enquiry had admitted of the fact that he had to return back the money to the petitioner. Then the petitioner filed departmental appeal dated 1-8-1987 on which no action was taken and, therefore, he sent the grievance notice dated 14-10-1987 which too was not replied; hence the petition.
3. Whereas, through their reply statement, the respondents have prayed for the dismissal of grievance petition on the ground that the same is time-barred. They tried to show that the previous service record of the petitioner was not spotless because earlier also he was issued show-cause notices on various charges. It is said that the Urdu translation of the complaint or the show-cause notice was not to be supplied to the petitioner under any law; particularly when the petitioner himself is matriculate and on various occasions given letters/ applications to the respondent in English. It is further said that before the commencement of the enquiry, Deen Muhammad, Deputy Manager substituted Wing Commander Manzoor Elahi in the domestic enquiry. It is further said that Ali Hasnain Zaidi was not in fact a witness but he had acted as prosecutor who only produced documents and letters to present the prosecution case and that he was not cross-examined by the petitioner although such chance was granted to him. It is further said that petitioner was allowed the assistance of co-worker M. Shakeel Qureshi who was later on substituted by Abdul Ghani by the petitioner. It is also said that petitioner was given full opportunity of cross- examination and to defend himself and that it is riot necessary for the employer to wait for the police case to be registered or proved before initiating disciplinary action. It is said that story set- up of previous enmity of Col. Afzal is false because enquiry committee consisted of three members out of whom one member had given the findings in favour of the petitioner as such the same cannot be said to be illegal or partial. In the end the respondents have prayed for the dismissal of the petition on the ground that no person would make his minor daughter scapegoat in such repulsive act for the sake of small amount of money.
4. In support of his case, the petitioner filed his affidavit-in-evidence and of Manzoor Hussain and Saindino Malah but they were subsequently given up by him. 'Whereas in defence, respondent filed effidavits-in-evidence of Fayyaz Ahmed, the Assistant Manager and Muhammad Din, the Deputy Manager/ Enquiry Officer. Subsequently, respondent moved application dated 10-8-1988 for re- calling said Muhammad Din for producing some of the documents of the enquiry proceedings which could not be produced due to bona fide mistake and after hearing the parties, the said application was allowed vide order thereon and, therefore, on 15-10-1988 Muhammad Din was re- called who produced the remaining documents and he was also cross-examined by the petitioner himself. All the above mentioned witnesses were duly cross-examined. After perusal of the written arguments submitted on behalf of both the parties, my finding is as under.
5. Although respondents have taken the plea of limitation but they failed to make out the same while cross-examining the petitioner or producing their evidence and in fact they have also not said anything about it in their written arguments. Accordingly, it is held that respondents have failed to prove that the grievance petition is time-barred. On the other hand, the petitioner has not claimed his reinstatement with hack benefits but neither in the petition nor in the evidence he has claimed that he was job less after the impugned order. Consequently, the petitioner would not be entitled to back benefits even if his prayer for reinstatement is allowed.
6. So far as the merits of the petition are concerned, it is seen that petitioner has claimed that he was not supplied the Urdu translation of complaint of Muhammad Irshad, the father of victim, and, of the show-cause notice but he has failed to show any law in support of his claim. Moreover, it has been admitted by him that he is matriculate. Furthermore, it is seen that he has put his signature in English and also given letters/applications in English previously and also during the domestic enquiry and, therefore, it cannot he said that he did not understand the subject of the show-cause notice issued against him.
7. The next point is that the petitioner was not issued/served with the charge-sheet as has been admitted by R.W. Fayyaz Ahmad in the cross-examination but as against that it has been admitted by the petitioner himself that he was served with the show-cause notice, dated 31-12-1986 which is Exh. A/9. The perusal of Exh. A/9 shows that it contains allegations/charges that he had attempted to rape Miss Saadia Irshad on 21-12-1986 at 12 noon time which is an act subversive of discipline amounting to gross' misconduct as per Standing Order 15(3)(h) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, he was directed to show cause as to why action should not he taken against him. This being so, it is clear that petitioner was informed of the particular of the allegations against him alongwith the section under which offence appeared to have been committed by him and the action which was proposed to be taken. As against that there is no particular form of the charge-sheet or the service of charge-sheet provided in Standing Order 15 and, therefore, it is held that the said show- cause notice was in fact the charge-sheet and in this regard reliance is placed on 1980 PLC 369, 1984 PLC 1185.
8. Then the case of the petitioner is that he was not allowed to cross-examine Ali Hasnain Zaidi during the domestic enquiry but the same has been denied by the respondent in their reply statement and through their witnesses. Moreover, it is seen from the enquiry proceedings that Ali Hasnain Zaidi was the prosecutor and, therefore, his statement is not in fact evidence or evidence against the petitioner but the statement of prosecution case and the pieces of the evidence on the basis of which prosecution intended to prove their case. Consequently no prejudice was caused to the petitioner by not cross-examining Ali Hasnain Zaidi. In any case, enquiry proceedings and report show that the opportunity to cross-examine Ali Hasnain Zaidi was afforded but the same was not availed off by the petitioner.
9. It is also the contention of petitioner that he was not allowed to cross-examine the victim and that her evidence was recorded in such a way that he was unable to hear the same but in this regard, it is seen that R.W. Muhammad Din in cross-examination has stated that, "the applicant was also within my sight and standing near the victim when her statement was being recorded by the enquiry committee". He has also stated that, "it is incorrect to suggest that the enquiry against the applicant was not held in accordance with law, or that the applicant was not provided the opportunity to lead the evidence in his defence, or to cross-examine the witnesses against him."
Voluntarily states that, "in fact the applicant was satisfied the way the enquiry was held against him and in that connection he has written satisfaction note." Of course, this witness in the cross- examination has stated that he did not remember whether applicant was asked to cross-examine the victim, but perusal of the statement of the victim (Miss Saadia Irshad during the enquiry) shows that the same was recorded in presence of not only the petitioner as it is signed by him but also in presence of all the members of the enquiry committee out of whom one member has also given finding in favour of the petitioner as such if the petitioner had been refused the chance to cross- examine the victim, then such a note should have been recorded on that statement by said one member of the enquiry committee but the same has not been done. Accordingly, it is held that the petitioner has failed to prove that he was not given the opportunity to cross-examine the victim.
Then the perusal of the enquiry proceedings also show that the Medical Officer namely Dr. Bilqis who examined the victim has also been examined in the domestic enquiry, and who has deposed that the attempt was made upon the victim and, therefore, corroborates the evidence of not only the victim but also Muhammad Irshad, the father of the victim. The defence witnesses examined during the domestic enquiry do not say that on 21-12-1986 at 12 noon time, they were with the petitioner and, therefore, the alleged offence/act was not committed by him. As against that, defence witness Ghulam Hussain has stated in the enquiry proceedings that he was in the house of petitioner with him when the girl came with the chit at 11-45 hours and that very time, petitioner told him to leave as he had to buy foodstuff for her. Besides, the quantum of proof required for domestic enquiry is not same as in criminal or civil litigation add in this regard, reliance is placed on 1984 PLC 576 and 610. On the other hand, the plea of the petitioner that he was falsely implicated through Muhammad Irshad, the father of victim by Col. Afzal is not proved by any conclusive proof and, therefore, it is held that it has been legally and properly held in the domestic enquiry that the petitioner was guilty of the charge.
10. It is also the contention of petitioner that the alleged act was not committed at the establishment during working hours but in this regard, it is seen that the act was committed in the Steel Town which is residential area of exclusively the employees of respondent Mill and, therefore, it is held that the consequence of such act were most likely to manifest itself at the area of the establishment for the reason also that the victim was also the daughter of the employee of the respondent and in this regard, reliance is placed on 1986 PLCI 1158.
11. The petitioner has also claimed that he was not issued the second show-cause notice or provided the enquiry report, but it is held that the same is not necessary as it is not the requirement of any law. Of course, second show-cause notice would be necessary only when the enquiry report contains material extraneous to charges or substantial defect which is not so in the present case and in this regard, reliance is placed on 1984 PLC 997.
12. The petitioner has then complained regarding his suspension for four days which has been admitted by the respondent in the reply statement but the petitioner has failed to show anything illegal about it. On the other hand Standing Order 15(5) empowers the employer to suspend the workman for the period not exceeding four days at a time and, therefore, it is held that there is no substance in this contention/complaint of the petitioner.
13. It is also complained/contended by the petitioner that no police case was initiated against him but he has failed to show that the domestic enquiry against him without filing police case was illegal under any law. On the contrary, it has been held in 1975 SCMR 46 that it is not incumbent upon the employer to prosecute employee in criminal Court before taking disciplinary action against him. Accordingly, it is held that this contention of the petitioner does not hold the ground.
14. In view of the above discussion, it is held that there is no reason to interfere with the enquiry report which is the basis of impugned order, or to set aside the impugned order, as such the same is hereby maintained with the result that this grievance petition is hereby dismissed.