The petitioner, Fazal Masih was employed as sweeper in Municipal Committee, Kamalia. He was dismissed from service on 26-11-75. He challenged the order of dismissal in this petition.
2. The petitioner was appointed as Sweeper on 29-4-74. The reason of appointment was that his father was also a Sweeper in the same Municipality and after a long service he died before retirement. Accordingly, in place of his father the petitioner was recruited. No letter of appointment was issued to him. On 27-3-75 a report was made to the effect that his work was unsatisfactory, therefore, disciplinary action should be taken against him. On the basis of the report the Administrator of the Municipal Committee issued a charge-sheet.
3. In the charge-sheet (Exh. D-1) the following charges were levelled against him:
(1) He was appointed on 29-4-74, he was placed on probation for two years but during this period big work was unsatisfactory.
(2) On the dates 13-11-74, 14-11-74 and 16-11-74 his work was unsatisfactory and so he was barked absent.
(3) On 19-2-75 his work was unsatisfactory and his explanation was called and he was given a warning.
(4) His work was unsatisfactory on 6-3-75.
(5) He was absent from duty on 12-3-75 and it amount to misconduct.
4. An explanation (Exh. D-2) was furnished by the petitioner. He denied all the charges. He said that as he was a member of the Union, therefore, he was being victimized. The explanation was not considered by the Administrator. Mr. Lutfullah a Typist was appointed as an Inquiry Officer. He refused to conduct the inquiry in the ground that many sweepers had gathered together to create harassm ent for him. Accordingly. Mr. Amin Sheikh was appointed as an Inquiry officer. He recorded the statement of the petitioner. Then he recorded evidence of the petitioner. Thereafter he recorded the evidence of the prosecution. He found the petitioner guilty of all the charges. A second show-cause notice was served. No reply was received. Another show-cause notice was issued. The petitioner answered that the copy of report was illegible, that either the copies of the statements of the witnesses be provided to him or his represent--ative should be allowed to examine the file. This chance was not afforded to him. Finally, the Administrator dismissed him from service on 26-11-75.
The proceedings of the inquiry are on the record of this case. After examin--ing the proceedings of the inquiry I find three glaring defects in the proceed--ings. The first defect is that the explanation furnished by the petitions to the charge-sheet was not considered by the Administrator. It was the duty of the Administrator to consider the explanation and after applying hi mind a decision should have been given if the case was fit for inquiry or not. This procedure was not adopted. The Inquiry Officer had been appointed without taking into consideration the explanation of the petitioner.
5. The second defect in the inquiry is that the statement of the peti--tioner was recorded first and thereafter his defence evidence was recorded. It was against the natural justice. It gives a presumption that the Inquiry Officer was prejudiced and he thought it proper to call upon the petitioner to produce defence evidence personally. The duty of the Inquiry Officer was to record evidence of the prosecution first and thereafter the petitioner should have been called upon to produce defence evidence.
6. The third defect is that the petitioner gave in writing that the inquiry report was illegible. He also showed his desire that the copies of the statements of the witnesses be provided to him. In these circumstances, it was necessary to provide him a copy of the inquiry and the copies of the statements of the witnesses. It was not done so. This is the third defect in the inquiry.
7. In view of the above defects the order of dismissal must be set aside. On merits no case against the petitioner is proved. The first charge --sheet is of a general nature and the remaining charges relate to a particular incident. The second charge was that the work of the petitioner was unsatisfactory on three dates i. e. 13-11-74, 14-11-74 and 16-11-74. He was marked absent, meaning thereby that no wages were paid to him for these days. He was already punished by withholding his wages and so he could not be tried for the same offence for the second time. The third and fourth charges are that his work was unsatisfactory on two days i.e. 19-2-75 and 6-3-75. The prosecution examined three witnesses who gave a general statement that the work of the petitioner was unsatisfactory and on the other hand the petitioner also produced three witnesses of the same locality and they said that the work of the petitioner was satisfactory. The Inquiry Officer did not give any reason as to why he disbelieved the three witnesses of defence. My finding is that the finding of the Inquiry Officer is perverse.
8. The last charge was that the petitioner remained absent on 12-3-76. His explanation was that he Was on leave two days prior to it and while he was travelling on 12-3-1975 his pocket was picked and so he could not reach in time. This aspect was not considered at all.
9. The respondent has not produced the Efficiency and Discipline Rules before me and I am not satisfied as to whether unsatisfactory work on two days or absence for one day amounts to misconduct requiring a punishment of dismissal. As far as Standing Orders Ordinance is concerned such acts do not entail a major penalty.
10. For the above reasons the petition is accepted and the respondent is directed to re-instate the petitioner with back benefits.