By a judgment announced on 7-12-1992 by Mr. Muhammad Azeem Khan Niazi, learned Presiding Officer, Punjab Labour Court No. 1, Lahore, grievance petition filed under section 25-A, Industrial Relations Ordinance, 1969, by. Muhammad Arshad, was dismissed. He has come up in appeal to this Court.
2. Muhammad Arshad had got his appointment as Work Munshi in April, 1973 and was working in the Agricultural Workshop, at Jhang, when he was suspended and later on dismissed on 14-7-1985.
He served grievance notice on 1-8-1985 and filed the grievance petition on 17-8-1985. It was dismissed on 27-11-1990. Muhammad Arshad preferred an appeal before this Tribunal. The same was accepted and the case was remanded for re-decision.
3. As appellant before this forum, Muhammad Arshad has pleaded, similarly as he had done before the learned Labour Court, that the inquiry had not competently, properly and fairly been conducted, as he had not been issued a show-cause notice before being charge-sheeted.
Appointment of the Inquiry Officer also was not made in a regular way and he was not allowed to cross-examine, the prosecution witnesses. Copies of the inquiry proceedings and the inquiry report also were not provided to him and there was no final show-cause notice. In an arbitrary and malicious manner he was ousted from service, and recovery of an amount of Rs.4,62,000 from him was also ordered as arrears of land revenue.
4. He had allegedly embezzled the aforesaid amount; and others, who had acted in collaboration with him, were Unit Supervisors, Muhammad Akhtar and Muzaffar Hussain Cheema and an Officer, Muhammad Akram Khan Niazi. In the Workshop bulldozers and tractors were repaired and were also let to members of the general public for farming. His duty was to prepare the challans, collect hire charges and deposit the same in the Treasury. Preparation of work orders was also his duty. It was found that he had tampered with the treasury challans and embezzled public money, during his posting in the Workshop, on getting in league with his colleagues. As also with the officials of the treasury bank. Agricultural Officer placed him under suspension, and the Director-General, Agricultural (Field), Government of the Punjab, acting as Authorised Officer, appointed one Muhammad Iqbal Lodhi, a Member of the Inspection Team, as the Inquiry Officer, who submitted his report, on conclusion of inquiry, and the Secretary, Agricultural, Government of the Punjab, as the Competent Authority, concurred in the findings and passed the final order of the official's dismissal from service on 14-7-1985.
5. Mr. Muhammad Akram Khan was the Unit Supervisor at the Tehsil level, under whom Muhammad Arshad used to work, and he has been examined as R.W.1 in the lower Court, other witnesses being Muhammad Zaman Akhtar and Ghazi Abdul Jalil, R.Ws. 2 and 3. Muhammad Arshad himself has appeared as P.W.1. The statement made by Muhammad Akram as R.W. 1 has been reproduced in para. No. 4 of the lower Court's judgment. It reveals that F.I.R. Had also been lodged against the official. It has, however, nowhere been stated as to what was the fate of the criminal case. The charge of embezzlement of public money should have been probed into by the investigating agency and brought home against the accused official in a criminal Court. In so far as proceedings of domestic inquiry were concerned, as many as eleven persons had deposed against the official before the Inquiry Officer. Their verbal testimony to the effect that the official was squarely at fault, and the latter's assertion that he was innocent in the matter, would really lead one nowhere. Oral evidence would not absolve the official of the alleged criminal liability of grave character, nor could the same be taken to have been established, beyond any manner of doubt, on the strength of the depositions made by the witnesses of the prosecution verbally, in the proceedings of inquiry. It is maintained by the learned counsel for the respondents that at no stage had the accused ever raised an objection as regards improper conduct of inquiry, the reason being that he had been afforded full opportunity to lead evidence in defence. One thing, however, is clear. It is conceded that copy of the inquiry proceedings, as also that of the inquiry report, had not been made available to him. It has been held in the order dated 22-6-1992 (Civil Appeal No. 940 of 1990) by the august Supreme Court of Pakistan that when the authorised officer does not at in a manner so as to enable the accused official to offer his explanation finally respecting the recommendation recorded by the Inquiry Officer for imposition of a major penalty, the sanctity of the exercise would stand vitiated, by reason of non-compliance of mandatory provisions of law and rules. Muzaffar Hussain Cheema, Unit Supervisor, was a co-accused with Muhammad Arshad and his dismissal from service had also been recommended by the Inquiry Officer. He went up to the Supreme Court to agitate that he had not properly been dealt with, in the course of the inquiry held against him. The order of his dismissal from service passed by the competent Authority on 14- 7-1985 was set aside by the Supreme Court, although it was left open to the Authority to start departmental proceedings against him from the stage, at which the irregularity/illegality had crept in.
6. The case of Muhammad Arshad was not distinguishable; and, as such, it could not be urged by the Authority that the action taken against him and the penalty imposed upon him was immune from legal interference. In so far as the appellant's status of being a workman is concerned, the learned counsel representing him has relied on a number of authorities, as 1989 PLC 605, 1983 PLC (C.S.) 690, 1976 PLC 13, 1995 PLC 667, wherein it was pronounced that low-paid employees of the Agricultural Department and the Irrigation Department were not civil servants, and by the nature of the job they were performing, they would fall under the definition of the term 'workman or worker', as occurring in the Workmen's Compensation Act, 1923, and the Factories Act, 1934. This Tribunal had held in 1989 PLC 605, Muhammad Saleem Malik v. Agricultural Engineer, Rawalpindi, that a unit supervisor in the Engineering Wing of the Agricultural Department, letting bulldozers to farmers on rent, was performing a function, which could not be said to be relatable to affairs of the State or administration of the State. Unit Supervisors and their subordinates could not be regarded as civil servants, but were to be treated as workmen, who would, therefore, be entitled to invoke the jurisdiction of the Labour Court, for redress of their grievances. It was laid down that if the accused was not afforded an opportunity to cross---examine the witnesses and also to explain his position by being confronted with the material available against him, on production of the proceedings of inquiry, he would be taken to have been condemned unheard and consequential order of his removal from service would not be sustainable. In the instant case, it is not denied that, such course had not been adopted and the inquiry proceedings, therefore, suffer from patent irregularities, and the accused official could not be made to suffer on that account.
7. Punjab Civil Servants (E&D) Rules, 1975 are materially different from the earlier Rules enacted in the year 1960, as the procedure provided therein for conducting an inquiry is quite dissimilar.
Employees of the Agricultural Department were to be governed by the provisions of the 1960 Rules and the inquiry conducted under 1975 Rules, resulting in official's removal from service, would, therefore, be void ab initio. Under sub-rule (5) of rule 6-A, inquiry report has to be supplied to the accused, along with the entire material, if major penalty, for gross misconduct on the part of an .
Official, is intended to be awarded to him. Final show-cause notice has also essentially to be served, and if omissions on that score take place, the disciplinary proceedings will be rendered invalid and legally unsustainable. The Inquiry Officer, in this case, has not been examined in evidence, which again is a serious lapse, as his veracity, as also validity of his report, could not be tested, without subjecting him to cross-examination 1989 PLC 499. It is the duty of the employer to bring on record each and every document, in the course of an inquiry. It was also pronounced in PLD 1978 Lah. 972 that an order made about recovery of certain dues from an official as arrears of land revenue would be without jurisdiction.
8. On having examined the entire material, the facts and circumstances of the case, and on considering legal propositions involved, I have come to the conclusion that the inquiry held against the official suffered from several defects and loopholes, and whereas others at fault succeeded in securing a verdict of innocence, the appellant was made a scapegoat, for misdeeds of all of them, although he was not solely to blame, if at all he had also a hand in the foul play. The important development that the apex Court had afforded to Muzaffar Cheema, co-accused, a relief, by setting aside the order of his dismissal, would entitle the appellant to equal treatment, and it cannot be assumed that the verdict of guilty rendered against him by the Inquiry Officer, and endorsed by the higher Officers, was a final, irrevocable and unassailable pronouncement against him. I would accept the appeal, although with no order as to costs.
9. It has been stated before me, in the course of arguments, by the appellant that he has been performing sundry jobs, to earn his livelihood, over the years. He was dismissed from service in as back as 1985. Since the respondents have led no concrete evidence to the effect that the official, after his ouster from service, has gainfully been employed somewhere, and the quantum of the wages he has been earning has also remained undetermined, the appellant ought not to be held disentitled to the back benefits, in certain measure, particularly when he has suffered humiliation, agony and ignominy of dismissal from service, and has also incurred heavy expenditure on litigation, besides untold inconvenience and hardship, that he has faced in the process. I would hold him entitled to 25 % of the back benefits. The order of his dismissal from service is set aside, and the impugned decision rendered on 7-12-1992 by the learned Labour Court is also reversed.
The appellant shall be reinstated in service; and he will also not be made to suffer a set--back as regard continuity in service and consequential seniority.