This Second Appeal is directed against the Judgment of the Additional District Judge, Larkana dated the 9th of October 1965 by which he partly accepted the First Appeal of the respondents, and set aside the judgment and decree of the trial Court with respect to declaration and in junction only. He dismissed the appeal in respect of Rs. 192 which was decreed by the trial Court in favour of the present appellant.
2. The facts which form the background briefly stated are that the appellant was a Naka Munshi in the Larkana Municipality.
Another Naka Munshi by the name of Munshi Qurbanali reported to the Chief Officer of the Municipality that the appellant was tampering with Octroi receipts. That complaint was verified by examining two witnesses, namely Nizamuddin and Munshi Jamaluddin on the 25th of September 1962 and the appellant was suspended immediately. Thereafter the appellant was charge-sheeted on the 3rd of October 1962 and was required to submit his reply to the charge-sheet. His reply was submitted on the 9th of October 1962.
It appears that he was asked whether he would cross-examine the witnesses which were going to be produced before the Enquiry Officer in support of the charges, and would like to produce any witnesses in defence or not, with the result that he gave his reply in writing, which is Exh. 42 and is dated the 18th of November 1962. No translation of the document has been brought to my notice, but the document has been referred to in the judgment of the learned Additional District Judge, Larkana as follows "Exh. 42 settles the entire dispute, in this regard. It is a statement of the plaintiff wherein he expressed his intention as to how he shall participate in the enquiry. He stated that he had nothing to say after what he had given in writing in reply to the charge-sheet and had not to ask anything from anybody, nor shall produce any evidence."
For my satisfaction I had the document translated in Court by Mr. Khalid Ishaque, Advocate, and found that his version is precisely the same as the version given in the above quotation.
3. Counsel for the appellant says that four witnesses were examined in support of the charge- sheet, and no witnesses were produced by the appellant in defence. The Enquiry Officer gave his report against the appellant, and the appellant was removed from service on the 15th of February 1963.
4. The appellant filed a suit for declaration that his dismissal was wrongful, and that he continued to be in service and also asked for a mandatory injunction that an order be issued directing the Municipal Authorities to reinstate him in service.
The suit was decreed on the 31 of March 1964, the two prayers were granted as well as an amount of Rs. 192 was decreed in his favour with regard to his subsistence allowance relating to the period of suspension.
5. The respondents went in appeal which was partly accepted on the 9th of October 19,65 as mentioned above. The appellant has now come to this Court in Second Appeal.
6. Counsel for the appellant has criticized the judgment of the First Appellate Court by advancing the following arguments (1)No opportunity was given to the appellant at the time of suspending him from service to cross- examine the witnesses who were examined behind his back.
(2) The Enquiry Officer was biased because he was the officer who had examined the witnesses on the basis of whose evidence the appellant was suspended.
(3) At the time at which the appellant was suspended and charge-sheeted, there were no rules of procedure applicable, to the dismissal of Municipal servants because, according to counsel, the Municipal Administration ordinance, 1960 had come into force on the 1st of May 1960 but the relevant rules were not framed until the 2nd of September 1963 with the result that proceedings which were taken for removing the appellant from service were either without any rules which were required to be made under section 29 of the Municipal Administration Ordinance, 1960 or in violation of the rules which were made subsequently under the Ordinance, if they are held to provide the guiding principles, and
(4) The First Appellate Court has wrongly disallowed to grant relief of injunction.
7. Now taking up the above contentions one by one, I may mention at the outset that counsel did not press the last conten--petition because, according to him it was redundant in view of the declaration that was asked for by the plaintiff appellant.
8. The first contention is immaterial at this stage because now the appellant has been found to have conducted himself in such a manner as to deserve to be removed from service. In these circumstances, it will serve no purpose to go behind that removal and take up the question of suspension. Counsel has shown nothing in support of his contention that the information of the evidence which was gathered against him for purposes of suspending him, was to be collected after notice to him. But apart from it, the justification of suspension is now amply proved by the appellant's removal from service.
9. The second contention that the Enquiry Officer was biased against the appellant, does not appear to be of much merit because the evidence that was produced in support of the charges was independent of the previous evidence, and cannot be said to have been perversely appreciated or understood. The conclusions that have been drawn from the evidence did follow from it.
10. Counsel laid emphasis on the third contention, but it appears to be not correctly conceived, because the Municipal Administration Ordinance of 1960 contains section 4, according tost subsection (2) of which the rules which were existing at the time of the enforcement of this statute, were to remain in force until they were replaced by new rules. Counsel said that from this point of view also, rule 11 which was the relevant rule, should be taken to have been repealed, because the new rules which were made subsequently under the Municipal Administration Ordinance, 1960 provided better opportunity of defence to an employee. In so far as better opportunity was provided by the new rules; it could be contended, according to counsel, that rule No. 11 was inconsistent with them and, therefore, not in force under section 4(2) of the Municipal Administration Ordinance, 1960. This contention has more than one logical defect but it is enough to point out that the provision to which counsel has alluded is contained in subsection (I) of section 4 of the Municipal Administration Ordinance, 1960 and relates to the provisions of the statute itself, and not the rules that were made under the statute. Moreover, it was not possible to take into consideration the non-existing rules under the Municipal Administration Ordinance of 1960 at the time at which rule I1 was applied -to the proceedings against the appellant.
11. Lastly, counsel argued that no opportunity was given to the appellant for cross-examining two out of the four witnesses who gave evidence against him in support of the charge-sheet, counsel has said that the enquiry proceedings commenced on the 19th of October 1962. On the 20th of November 1962 the examination of two witnesses in support of the charge-sheet took place, and then on the 18th of December 1962 two more witnesses were examined against the appellant.
Admittedly the appellant was present on the 18th of December 1962 and declined to cross-- examine the witnesses who were examined on that date. Counsel for the appellant has taken this aspect of the matter into consideration and has, therefore, contended that Exh. 42 by virtue of which he gave up his right to cross-examine and produce defence witnesses, was applicable to two witnesses only, and not to all the four witnesses. The two witnesses to which the statement did not apply, according to counsel, were those who were examined in support of the charge-sheet on the 20th of November 1962. In so far as Exh. 42 is concerned, there is neither any warrant in it for concluding that it was applicable to two witnesses, and not to all the four witnesses, nor is there much less justification for raising the contention that it applies to the second set of the two witnesses and not to the first set of two witnesses. The impression gathered from the stand which the appellant has taken in this respect, is that he had no intention or idea of cross-examining any witnesses whatsoever or of producing any evidence in defence, just as he has actually done, but in order to find some reason to criticize the judgments of the lower Courts, the stand of abandonment of the right with respect to two latter witnesses and its applicability to the first two witnesses, has been raised.
12. I find no merit in this appeal. It is dismissed with costs.