1. ORDER Noor Muhammad, petitioner, has brought this petition for his re-instatement under Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
2. Ordinance of 1968 (hereinafter called the Ordinance of 1968). The facts of the case are that the petitioner was employed with the respondent but was dismissed on 26-1-1970 by Col. Muhammad Aslam Khan, District Manager. He went in appeal against the order but it was rejected on 20-4- 1970. He went in revision but that too was dismissed on 23-2-1971/ He then gave notice to the Chairman, Punjab Road Transport Corporation on 2-3-1971 but no enquiry was held nor any reply was given to him, he, therefore, brought the present petition on 5-4-1971. The petition has been opposed on behalf of the respondent. The grounds are that Col. Muhammad Aslam had conducted the raid upon the petitioner and allegedly found that tickets were not T issued by the petitioner to various passengers although he had received the fare from them, therefore, Colonel Muhammad Aslam neither could appoint an enquiry officer nor could dismiss him. On this ground the order of dismissal has been challenged as illegal, lt is provided in Clause 4 of Order 18 that no order of dismissal .can be passed unless the workman concerned is informed in writing of the misconduct and is given an opportunity to explain the circumstances alleged against him. This clause also provides that the approval of the employer shall be necessary in every case of dismissal and then if circumstances appear to warrant it the employer may institute independent enquiry before dealing with charges against the workman. As far as this point is concerned whether the petitioner was informed in writing about the misconduct, it is apparent that a written charge-sheet was given to him. This is not the case of the petitioner that no opportunity was given to him to explain the circumstances alleged against him. The point to be considered, therefore, is if the enquiry and the dismissal order are illegal for the reason that the person who raided the petitioner could not appoint enquiry officer and pass dismissal order against him. The Representative of the petitioner has argued^ that copy of the enquiry was not given to him alongwith the second show-cause notice and in this respect he has* relied upon PLD 1954 Sind 199 ;PL D 1960 Kar. 500 and PLD 1957 Kar.
54. PLD 1954 Sind 199 is based upon section 240 (3) of the Government of India Act, 1935. The Authority is distinguishable from the facts of the present case, because in the present case copy of the enquiry was not attached to the second show- cause notice but in the case from which the authority cited above arose, merely an explanation was called but no proper opportunity was given to show cause. Likewise PLD 1960 Kar. 500 is distinguishable from the facts of the present case. No question was involved in the case from which the authority arose whether copy of the enquiry report was attached to the second show- cause notice or not. The dismissed person in that case had asked for the extension of time for the reason that he had been lying ill which was disallowed. It is held that non-extension of time amounted to refusal of reasonable opportunity. The dismissed person had applied for inspection of documents for the preparation of his reply and this prayer was also disallowed and it was held that he was seriously pre judiced by the refusal. So the observations made in this Authority are not helpful to the petitioner. The third Authority is also not helpful. The dismissed person had asked for the supply of copies of certain documents in order to refute the charges levelled against him after the charge-sheet was served upon him. The copies of the documents were not supplied to him. It was held that the refusal to supply the copies amounted to non-compliance of the provisions of subsection (3) of section 240 of the Govemment of India Act, 1935. It is clear that the point involved in the case from which the Authority arose was not that copy of the Enquiry Officer's report had not been attached to the second show-cause notice. Although the counsel for the respondent has not cited any direct authority on the point that it is unnecessary to attach copy of the Enquiry Officer's report with 1he second show-cause notice but it does not sound to reason that failure to attach such a copy in any manner prejudices the person against whom the enquiry is held. If copy of the Enquiry Officer's report is not attached to the second show-cause notice, the file is always accessible and he can at any time inspect it with the permission of the Enquiry Officer. The case of the petitioner is not that he applied for the inspection of the file but his request was turned down.
3. The next point raised by the Representative of the petitioner is that Col. Mohammad Aslam could not be the Judge in his own cause that neither he could appoint Enquiry Officer nor could pass a dismissal order against the petitioner because it was he who made raid upon the petitioner and allegedly found that the petitioner had embezzled bus fare by not issuing tickets to some passengers although he had recovered the fare. In this respect reliance has been placed on PLD 1964 SC 64, 1964 PLC 717 and 1967 PLC 68. In the case which arose from the first mentioned Authority, the District Judge had dismissed his stenographer for misconduct and insulting behaviour. It was observed that the appointing authority could not be judge in his own cause and act as prosecutor Judge and punishing authority merely because power of removal vested in him.
4. This authority helps the petitioner because here the raid was made by Mr. Muhammad Aslam, District Manager, who caught the petitioner on the allegation that he had embezzled some amouDt of fare received from some passengers by npt issuing tickets to them. It cannot be expected that the District Manager would have made his raid unsuccessful while deciding the matter whether the petitioner had embezzled bus fare. In the case which arose from 1964 P L.C 717, the member of the Corporation who had served show cause notice -on the employee took part in the proceedings of Corporation's meeting at which his report as Enquiry Officer against the employee was considered and punishment proposed. It was held that the said member was disqualified to attend the meeting of Corporation and that the decision of the Corporation was against law and without lawful authority "it was also remarked that natural justice must not only be done but should manifestly be seen to be done. The present case is stronger than the case from which the above- mentioned authority Arose. In the Cfcse from which the authority arose the person who served show-cause 403 *- notice joined the meeting in which his report was considered but in the present case the District Manager who punished the petitioner had made raid upon him, so he became Judge in his own cause. The facts of the case from which 1967 PLC 68 arose are distinguishable from. the facts of tfte present case, therefore, the said authority does not appear to be very much relevant. The facts were that Enquiry Officer was the subordinate to the employer and the employer had direct enemity with the workman. It was, therefore, held that the proceedings which took place under the supervision of such officer leading to the dismissal of \* orkman were entirely illegal and against natural justice. In the present case no question of enmity is involved.^ The District Manager was interested in the successfulness of the enquiry,) therefore, the petitioner was prejudiced. The learned counsel for the respondent has argued that Col. Muhammad Aslam was not the only person who raided the * petitioner and one other officer was with him. May it be so, but since Col. Muhammad Aslam had also made the raid, he could not be Judge in his own cause and could not decide the case. The learned counsel has also argued that the District Manager being the appointing authority was the only competent authority who could take action against the petitioner, therefore, he rightly decided the case. Answer to this question is contained in PLD 1964 SC 64 an authority which has already been discussed above. The District Judge was the only authority who could take action against his stenographer but in spite of it it was held by the Supreme Court that the District Judge could not act as a Judge in his own cause. The District Manager is the delegatee of the General Manager. An authority still retains his powers after delegating them to his subordinate. So the District Manager for the reason that he himself! committed raid upon the petitioner, should have submitted1 his report top the General Manager for proper action and in the circumstances of the case, the General Manager was the only competent authority to appoint an Enquiry Officer and to finally decide the case. The result is that the petitioner has been very much prejudiced and the enquiry made and the order passed against him cannot be treated as legal. The learned counsel for the respondent has also argued that Order 18 is not applicable as the petitioner is not an office-holder in the Union. In cases where service has been germinated for Trade Union activities, only an office-holder of a Trade Union can make petition. There is nothing in Order 18 to suggest that in cases of dismissal also, only an office-holder of a Trade Union can knock the door of this Court. It is clear from the opening word of E Order 18 that it applies to every kind of workman who has grievance in respect of any matter under this Ordinance. So case of dismissal is also included in Order 18. Those _cases stand excluded which fall under Proviso to Order 18. Jn the ^Proviso there is no suggestion that a dismissed person who is not an office-holder of any Trade Union, cannot come to this Court. So the cases of dismissal are not hit by proviso to Order 18. Next objection raised by the learned counsel for the respondent is that according to Order 15, Clause 4 of the Ordinance of 1968, -only an opportunity is to be given to the dismissed workman to explain the circumstances 'alleged against him and the order does not contemplate giving of proper or reasonable opportunity since the words "an opportunity" only have been used. We cannot agree with him. The intention of Legislature was not that simply an opportunity be given by an authority irrespective of the fact whether such authority was prejudiced or not. The words "an opportunity" mean "proper and reasonable opportunity". If an unauthorised person calls upon a person to explain the circumstances alleged ^against him, it cannot be said that proper and reasonable opportunity was given. It is understood that the person who calls explanation, charge sheets or decides the case must be competent and unprejudiced. By no stretch of imagination it can be assumed that the Legislature by inserting Order 15, Clause 4 intended that an unauthorised aqd prejudiced person could charge-sheet a workman and decide his case. The learned counsel has cited PLD 1969 SC 223 and has argued that the necessity of natural justice can be excluded by using proper words in a statute expressing such an intention. He has further argued that* as in Order 18, Clause 4 the words "an opportunity" have been used and not "proper opportunity", therefore, law does not intend that the principles of natural justice should be applied. We have already observed above that the words "an authority" mean "proper and reasonable authority" so the intention of the Legislature was not that the principles of natural justice should not be applied. So the authority cited by the learned counsel is not helpful to the respondent. Likewise PLD 1968 Lah. 1066 is not relevant to this case because no question of application of rules of natural justice arises. No doubt it has been held in the authority that the rules of natural justice are to be invoked where there is no specific provision in a statute ensuring their observance but as we have observed above, Order 15, Clause 4 clearly contemplate giving of proper and reasonable opportunity by an authorised and unprejudiced authority. The learned counsel for the respondent has also cited 1969 PLC 367, 1969 PLC 593,1969 PLC 445, 1969 PLC 691 and 1969 PLC 857 in which it has been observed that Industrial Courts cannot sit as an Appellate Authority over the findings of domestic enquiry if the enquiries are fair, impartial and in accordance with the principles of natural justice. The authorities obviously go against the respondent. This is true that in petition made to the Labour Court findings on facts cannot he challenged nor the quantum or adequacy! of punishment can be attacked but Labour Courts have wide powers to!# interfere if the enquiries are found to be unfair or impartial. In the present! case the District Manager was an interested party rather a witness although not cited as such, therefere, neither he could appoint the enquiry officer of his own choice nor could decide the case by becoming a Judge in his own cause. It, therefore, cannot be assumed that a fair or impartial enquiry was made against the petitioner. The result is that the whole enquiry and the resultant dismissal order are void and illegal. We, therefore, order that the petitioner be re-instated with effect from the date of his dismissal with all due benefits of service. Present representative of the parties. Petition allowed.