DECISION ' Rana Muhammad Akram, petitioner, was appointed as a Stenographer in the MICAS Associates (Pak.) Limited now named as Roti Corporation, 235-A-176, Gulberg III, Lahore in the year 1975. He was dismissed from service on 22-7-1976 on the charge of being guilty of an act subversive of discipline. Aggrieved by this order, he filed this petition under section 25-A of the Industrial Relations Ordinance, 1969 on 9-9.1976 for re-instatement in service with back benefits.
2. The facts of the case are briefly stated here. In May 1976, the petitioner was attached as Stenographer with Mr. Zulfiqar Ahmed, Regional Manager. On 26-5-1976, he addressed a letter (Exh.
D-15) to the Managing Director. His grievance was that Mr. Zulfiqar Ahmed, Regional Manager had a habit of using filthy, obscene and obnoxious language which was intolerable. He specifically quoted two intances which occurred on 13-5-1976 and 26-5-1976. His version is given in para.. 7, 8 and 9 of his application Exh. D. 15, which are reproduced below :-
7. Coming to the brasstacks I must quote two instances of recent days although there are many.
On 13th of May, 1976 I was given a draft for typing by Mr. Munir, Assistant Manager (Manage. Merit and Administration) regarding the acceptance of resignation tendered by Mr. Chishti the then Deputy Chief Accountant. I typed out the letter as it was and sent through the peon and it was signed by the Regional Director. When the cheque of the dues payable to Mr. Chishti was presented by Mr. Beg of Accounts Department for signature the Regional Director objected as to why Mr. Chishti was being paid for the privilege leave. He answered that the leave was allowed to be encashed by him (RD) so he has prepared the cheque accordingly. Upon this the Regional Director sent for me and asked as to why I had added in the letter that Mr. Chishti was entitled to privilege leave. I simply replied that I typed out what was asked to be typed. Instead of being realistic that there was no fault on my part and said why you did not exercise your common sense and with this he started abusing me openly in the presence of Ch. Mohd Hanif G. M. (Production), Major Sami, Manager (Management an Administration) and Mr. Beg and one outsider whose name I di not know but I know him earlier. He shouted so loudly and rashly that cerain officials got together in front of his office just to see what had happened which made the Regional Director to behave so carelessl and irresponsibly. He used the language in the following words:
(a) You are dam fool.
(b) Bloody fool.
(c) Nonsense. What authority you had got to type out the lette without his approval and why the letter was got sighed by him.
(d) You are a bastard.
' Besides, he also gave the following uncalled for and sweeping remarks which did not have any bearing upon the case in question ' People of Punjab are dam fool. They do not mind their own business. They poke their nose in the affairs of others. Punjabis are most dull, incompetent and useless people. Karachi is a city of sensible and efficient people. Most of the employees of this Organization have come from Government Departments and they have introduced bloody governmental system and procedure in this office which I (RD) must discontinue. They have started writing office notes on the pattern being observed in Government offices. They do not understand the working on the commercial side.
' I am confident that even the Regional Director would concede that in spite of his using such uncivilised language I did not utter even a single word and remained standing completely observing silence just as a sign of respect and to maintain the discipline. Whatever have stated it may be taken on solemn affirmation. It is my belief that the officers whose names I have mentioned above will bear the testimony of my statement as true because it should not be possible for them as Muslims to deny certain occurrence which took place in their presence.
8. Today at about 9-30 a.m. The Regional Director sent for me and asked about the letter regarding the payment of sales tax which the Goverment had demanded from the Roti Ghar at Fortress Stadium. I came back to check up from the files. I went back to him and reported that the letter in question stood placed in the file of Fortress Stadium Roti Ghar and that file was already with him
(RD) for the last many days. Instead of recalling or giving a serious thought to my statement he started snubbing me and said "You are foolish. Why you allow the files to remain on his table", I immediately replied most respectfully that since he (RD) had directed me that both the files regarding Fortress Stadium Roti Ghar and the Roti Ghar other than Fortress Stadium should invariably remain on his table, so I could not pick up the courage to take the files back and defy his instructions. Here, he observed "you are nonsense. I have not seen the files on my table for the last two or three days. Get out of my room and search your files. After few minutes he again called me and said: "Akram, I remember I had given both the files to Mr. Javed Nawaz and ask him over the telephone at Roti Ghar to send them back."
' Even thereafter he also made an effort to contact Mr. Javed Nawaz telephonically. From this whole tale of unpleasantness one can easily understand that I was not at fault but still he used filthy language but I pocketed the insult simply I happened to be a subordinate. It is true that we are subordinates but it ought to be widely understood that we are human being first and subordinate later.
9. This is not all. After the meeting held under the chairmanship of the Managing Director was over, the Regional Director sent for me and asked to bring the dak, which I did. Few days back he asked me that only those copies of the letters should be placed before him which are either addressed or endorsed to him and other letters to whom they are originally addressed should be sent without placing them before him just to avoid any delay in the disbursement of the dak. These instructions I passed on to the Diarist because it is he who receives the dak from all Departments as well as the Head Office and consequently pass on the same to me in a pad. Since the Diarist is a new one having joined on 5th of May 1976 he, to my misfortune, placed in the R. D's pad copies of the letters both meant for him (RD) and others. He pointed out these letters to me and asked as to why his instructions as mentioned above were not complied with. I submissively pointed out that it is basic function of the Diarist to give me the dak after he has complied with the instructions of the Regional Director. At the same time I also mentioned that as I remained busy in typing work I could not check the pad before bringing the same to him. Upon this he lost his temper and started passing stricture besides using indecent language. To quote his own words I must make their mention as under:- "You are dam fool. You have brought the pad and also I hold you guilty. Why you did not check up.
You are a Phudu having no brain. Even a student of 8th class can follow my instructions whereas you dam fool do not have the capability of understanding things. You bastard do not take interest in your work. Do not work like animals. Improve yourself or resign otherwise I will sack you. I cannot bear with brainless people like you."
' All this happened in the presence of Major Abdul Sami, Manager (Management and Administration) and Mr. Beg, Assistant Manages (Cost.). Both these officers are responsible, noble and Muslims in true sense and I see no reason why they should not depose truly and endorse what I have stated. I have not said even a single word which might be termed as false."
3. The above application was received by Mr. Humayun A. Gohar, Managing Director on 27-5-1976.
A copy was also sent to Mr. Zulfiqar Ahmad who sent the following note to Managing Director on the same day :- "This is with reference to the application of my Stenographer Mr. Akram addressed to you with a copy to me.
' In all fairness to the person concerned, it is suggested that an enquiry be held and persons mentioned by him be called and their statements recorded. Again to be fair to the man, I want not to be involved in this and an independent enquiry be recorded."
4. The petitioner had cited Ch. Mohammad Hanif, General Manager (Production), Mr. Sarni Manager (M & A) and Mr. Beg, Assistant Manager (Cost.) as witnesses in support of his allegations.
5. The Managing Director on the same day i. e. 27-3-1976, held an inquiry to investigate the matter.
He examined Messrs Hanif, Sami & Book in the presence of the petitioner, He came to the conclusion that the allegations made by the petitioner against the Regional Director were totally false and unfounded. He directed Mr. Sami to initiate necessary disciplinary action against the petitioner for making false allegations against the superior officers. On the same day Mr. Sami served the following charge-sheet :- "In pursuance to your application dated 27th May, 1976 to the Managing Director in which you made serious allegations against the Regional Director, the Managing Director held an enquiry in the Regional Office on 27th May 1976. In this enquiry you were present and the wisnesses listed below, who were named by you in support of your allegations, were examined :
(1) Ch. Muhammad Hanif, G. M. (Production).
(2) Mr. Abdul Sami, Manager (Management and Administration).
(3) Mr. Masoom Beg, Assistant Manager (Accounts).
' Based on the statements of these witnesses, the Managing Director came to the conclusion that the allegations were false and baseless.
' It is now proposed to initiate disciplinary action against you for making false, baseless and malicious allegations against a superior offices knowing him to be as such.
' Upon receipt of this letter, you are required to explain your position in view of the charge-sheet issued to you.
' You are hereby suspended with effect from 28th May 1976, for the purpose of conducting an enquiry. Mr. Zafar Moin Butt, General Manager (Commercial) has been detailed to bold a enquiry on 28th May 1976 at 10-00 a.m. You are required to be present in this enquiry."
6. Mr. Sami issued a separate letter to Mr. Zafar Main Butt, General Manager (Commercial) to hold an enquiry on 28-5-1976 at 10-00 a. m.
7. On 28-5-1975. The petitioner appeared before Mr. Sami. He presented an application (Exh. D-5) raising six objections on the departmental proceedings against him. Three of the objections are; first, he was given only sixteen hours to submit an explanation to the charge-sheet and this time was grossly inadequate, second, that Mr. Zafar moin But Enquiry Officer, was inimical to him and that he did not expect justice from him because he was subordinate to the Regional Director against whom the allegations were levelled and so be was not in a position to hold an independent enquiry, third, that no preliminary enquiry was held by the Managing Director in his presence and if there was any, the copies of the statement, the finding and the copy of the authority under which the Enquiry Officer was appointed may be supplied to him. It appears that this application was presented by the petitioner to Mr. Sami personally. At the same time, the petitioner withdrew this applica ion vide letter Exh. D-6. Mr. Sami ordered the Enquiry Officer to proceed with the enquiry.
8. Before proceeding of the enquiry, the petitioner made a long statement (Exh. D-1) before the Enquiry Officer stating his reasons that he had no confidence in him and so the Enquiry should not be held. The Enquiry Officer observed that the application (Exh. D-5) had been withdrawn, therefore, he proceeded with the enquiry. He recorded the statement of four prosecution witnesses.
The points for determination before the Enquiry Officer were whether the Regional Director had used the language mentioned in the application of the petitioner and if not whether it was an act subversive of discipline on the Dart of the petitioner to make false allegations against the said Officer. The first witness was Mr. Hanif. According to him on 13th May, 1976 Mr. Zulflqar Ahmad, in connection with the case of Chishti said to the petitioner, 'the way you are working it is either going to damage me or the company". The second witness was Mr. Sami. Regarding the case of Chishti, he made the following statement :- "On observing this discrepancy Mr. Zulfiqar, Regional Director sent for Mr. Akram in my presence and asked him as to why the leave entitlement was included in the letter without his prior consent.
Mr. Akram could not give convincing answer to Mr. Zulfiqar Ahmad, on which he was annoyed and told Mr. Akram that by tampering with this letter he had betrayed his trust confidence. He also told Mr. Akram that he acted like a fool by making amendment in the approved letter, on his own, without any authority."
9. Regarding the incident of 26-5-1976, he made the following statement :- "On 26th May, 1976 at about mid-day I was with Mr. Zulfiqar Ahmad, Regional Director, when Mr. Akram brought the daily dak folder for perusal of the Regional Director. The Regional Director saw some letters the copies of which he had already seen. On this, he asked Mr. Akram, Stenographer.
That he was putting up the same copies of the same letter again and again which he had already seen. On this, Mr. Akram said that he was busy in doing some work and the Diarist placed these letters in the dak folder meant for the Regional Director without his notice. Mr. Akram also expressed his inability to sort out the dak before bringing to the Regional Director due to his preoccupation.
On this, Mr. Zulfiqar, Regional Director, was annoyed and he remarked that even a boy of 8th class could be able to understand the Instructions that he had already issued to him. Again he told him that "he (Mr. Akram) Is acting like a fool and is not acting like a responsible official" for which Mr. Akram expressed his regret and assured Mr. Zulfiqar, Regional Director, to be careful in future."
10. The third witness is Mr. Beg. According to him, the Regional Director, relating to the Incident of 13- 5-1976 had used the words "authority is vested in me (Mr. Zulfiqar) and not in (Mr. Akram). With respect to the incident of 26-5-1976, he said that the Regional Director had told the petitioner, "you are fool, a dam fool wasting my time".
11. The fourth witness is Mr. Zulfiqar Ahmad, the Regional Director. He said that he did not use any bad language on 13.5-1976. He admitted that he addressed the petitioner on 26-5-1976 like this "he is acting like a fool and that it is so simple that it is given to a child of 8th Class, he can do it very easily. In defence, the petitioner examined four witnesses. They talked about the general behaviour of Mr. Zulfiquar Ahmad. According to them, he was a harsh officer and usually indulged in bad language.
12. After the evidence was closed, the Enquiry Officer embarked an the mission to ascertain the antecedents of the petitioner as well as his witnesses. He wrote a letter to the Registrar, Lahore High Court, Lahore asking him to inform about the antecedent of the petitioner because the petitioner had been serving the Lahore High Court previously. The information received from the Registrar vide letter Bah. D-20 was that the petitioner served there for eight years for that he was dismissed from service on the charge of forgery and that his behaviour was highly objectionable during the seri/co. The Enquiry Officer addressed another letter to the Management of West Pakistan Tanneries about one Abdul Ghaffar who appeared as a witness. The reply received was that Abdul Ghaffar was a dismissed employee and he was bad character as he had been leading processions against the Management. He also obtained an affidavit from Abdul Karam another defence witness that his statement in favour of the petitioner was false. During the enquiry, the petitioner had obtained leave on the grounds that his mother was sick in the Hospital. The Enquiry Officer contacted the Hospital authorities and they replied that his mother was never admitted in that Hospital. On another occasion, the petitioner obtained leave that his eon had died. The Equity Officer sent the employees to his house and they got the information that the information of the death of the son of the petitioner was absolutely false.
13. In brief, the evidence produced by the petitioner was disbelieved and a verdict of guilty was given by the Enquiry Officer. After a second show-cause notice, he was dismissed from service.
14. In the written reply, the employer has raised two legal objections first, that the petitioner's grievance notice was time-barred and second, that the petitioner was not a workman. Both the objections are devoid of force. There was no necessity to serve any grievance notice because the case was A covered by subsection (6) of section 25-A of the Industrial Relation Ordinance. In this view, I am fo:tifled by the authority Messrs Crescent Sugar Mills Limited v. Hall Mohammad an f others. The petitioner was a Stenorgrapher. The nature of his duties was clerical and so he was a workman. Both the objections are overruled.
15. The petitioner has enumerated thirty-one grounds to challenge the order of his dismissal. I would not take each ground separately. I would only take three points which have been mainly argued before me by the parties.
16. The first point was that Mr. Sami was subordinate to the Regional Director, that he was a witness of the prosecution, therefore, he was not in a position to pass an order of dismissal. Mr. Sarni was also Manager and by virtue of his office, he was subordinate to the Regional Director who was holding a superior post In the same establishment. It may be noted that the allegation of the petitioner was that the Regional Director had used obscene, filthy and obnoxious language while addressing the petitioner and that Mr. Sami was a witness on both the occasions. Mr. Sami did appear as a prosecution witness against the petitioner. The question is whether Mr. Sami was competent to act as authority to pass the order of dismissal.1
17. The preliminary enquiry is alleged to have been held by Mr. Humayen A. Gohar, Managing Director on 27-5-1976. Mr. Sami appears as a witness before him. These proceedings are not before me. However, it seems that Mr. Sami has stated before the Managing Director that the allegations of the petitioner against the Regional Director were false. Mr. Sami on the same day, Issued a charge-sheet to the petitioner. His duty was to obtain an explanation of the petitioner and thereafter, he had to apply his judicial mind on the question whether the explanation of the petitioner was satisfactory or not. In case, he found that the explanation of the petitioner was unsatisfactory, he had to appoint an Enquiry Officer. After receiving the enquiry report, he served a show-cause notice to the petitioner as to why he should not be dismissed from service. On receiving the explanation again, he applied his mind whether the punishment should be imposed on the petitions. Obviously, he had been acting in dual capacity. He appeared as witness twice in this case. Firstly, he appeared as witness before the Managin Director and secondly he appeared against him as a witness before the Enquiry Officer. He also acted as a Judge in this case. Without any manner of doubt, a witiness cannot act as a Judge. On this point a Supreme Court Authority in the case of Mohammad Moshan Siddiqi v. Government of Pakistan may be referred to with benefit.
Mr. Siddiqi was a Stenographer to the District Judge, Hyderabad. In this case in a departmental enquiry the charge against Mr. Siddiqi was that he had misoonducted, misbehaved and insulted his superior officer 1. e. District Judge, Hyderabad and launched, unfounded, malicious, insulting, insinuating lanuguage against him. The enquiry was conducted by the same District Judge and finally he was dismissed. Their Lordships observed :- "The latter is the attitude generally held in these matters by judicial authorities to whom, by virtue of their function, it is anathema that any person should be a prosecutor and the Judge in his own cause. It is therefore calculated to cause dismay that in the present case an administrative agency composed of a single person within the framework of the judiciary should have been consciously allowed to operate as prosecutor and Judge and finally as punishing authority in its own cause.
This was the quarter in which such proceeding was least to be expected. In our opinion, no ground in Justice can be advanced in support of the proceedings before Mr. Kadir Nazar! Avian and every principle of jurisprudence combines to require that those proceedings should be entirely set aside."
18. In the same case it was further observed : "The whole proceeding in a departmental enquiry is required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors, Judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested In them as appointing authorities under the Rules. There is power and there are facilities available, to place the conduct of the enquiry and the report thereon in other hands and in such a case the officer who is the offended complainant must give his evidence in support of the complainant before such office r."
19. In another case reported as Khyber Vegetable Ghee Mills, Lahore v. Mohammad Ahmad, the learned Labour Appellate Tribunal observed as under: "The learned counsel for the appellant contended that since the proceedings were not before a Court of law and were domestic in character, therefore, any irregularity in the conduct thereof is immaterial. This contention is devoid of force, because even when the proceedings are taken by a domestic tribunal or by bodies other than Courts of law, the minimum these have to do consistently with elementary justice and (airplay is to show that they are acting on their own i. e.
Independently and impartially between the parties arraigned before them. Any ex facie partiality or irregularity knowing out the minimum norms of law and justice would be of no consequence. It is quite elementary that a person, who is a witness cannot function as a Judge or on behalf of a2 3 Judge. The minimum norms of justice and fairplay are not confined to proceedings in the corridors of Courts of law. These extend to, as was said in relation to a right of hearing by the late and our noble Lord of the Supreme Court of Pakistan, Mr. Justice M. Shahabuddin, who later on became the Chief Justice of Pakistan in the case Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45) to all proceedings, by whomsoever held, which may affect the person, the property or other rights of parties concerned in dispute."
20. The same view was expressed by a Single Bench of Lahore High Court in General Manage, Lyallpur Cotton Mills, Lyallpur v. Sardar Muhammad and others.
21. In the instant case, Mr. Sami acted as a prosecution witness as well as a Judge while determining whether the penalty of dismissal should be imposed on the petitioner. The order of dismissal is illegal on this ground alone. Mr. All Sibtain Fazli, Advocate, argued that the decision of a Judge made in a case in which he has an interest is, iii a case of necessity, unimpeachable. He referred to Dimes v. Crand Junc. Cane Co. quoted at page 70 by the book entitled "A Selection or Legal Maxims" by Hariett Brown. His argument was that Mr. Sami was the employer and h was the only person to impose the penalty on the petitioner and so law of necessity required that he alone could act as a Judge so his order was un impeachable. I see no force in this argument. The disciplinary action was initiated by Mr. Humayun A. Gohar, Managing Director and so the matte ought to have been referred to him for final adjudication. It appears to me E that in the hierarchy of the respondent-corporation there were Manage Regional Directors and the Managing Directors and so it could not be said that only a Manager could pass the order of dismissal. This order must have been passed by an authority who was independent. Obviously, the order is illegal because it has been passed by a person interested in the case as a witness.
22. The next point raised by the petitioner was that the Enquiry Officer was biased and he was not in a position to act independently in his case. Before the enquiry was started on 27-5-1976, an application was given by the petitioner Mr. Sami to change the Enquiry Officer. In fact, in this application he wanted time for the adjournment of the enquiry. His reasons were that sufficient time was not given to him to submit the explanation to the charge-sheet, that he required certain documents to examine before furnishing his explanation and that the Enquiry Officer was not independent because he was inimical to him and that he was a subordinate of the Regional Director. It appears that at the instance of Mr. Semi, this application was withdrawn but the petitioner did not give up his objection regarding the biased mind of the Enquiry Officer. He appeared before the Enquiry Officer and made very long statement. He narrated certain incidents on account of which he apprehended that justice would not be done to him besides he stated that the Enquiry Officer was subordinate to the Regional Director, therefore, there was no likelihood that he would decide against his superior officer. F These objections were not decided. The enquiry was commenced on the plea that the application had been withdrawn. In fact, the petitioner had never withdrawn his objection relating to the competency of the Enquiry Officer. Thereafter, the petitioner gave numerous applications on the same subject, but no decision was made. I also find that the Enquiry Officer acted as a prosecutor. Then the evidence of both the parties was closed, he proceeded to make investigation about the antecedent of the defence witnesses. He addressed a letter to the Registrar of the Lahore High Court. He received information that the petitioner had been dismissed by the High Court on the charge of forgery and during the eight years of service in the High Court, his conduct was not good. He also got information from the hospital to ascertain if the mother of the petitioner had been admitted in the Hospital or not. Similarly, be collected information about all the witnesses produced by the petitioner. This procedure was beyond the scope of the Enquiry Officer. He was not competent to make any further investigation. He could not use information against any of the witnesses of defence because the petitioner was not a party to this investigation. He had no chance to rebut the information which had been received from4 5 different quarters by the Enquiry Officer. It was extraneous matter and it could not be used. The only conclusion which can be drawn by this novel procedure is that the Enquiry Officer wanted to give a verdict of guilty. He cannot be termed as independent. Three reasons f. e. First he was stated to be inimical by the petitioner, second, he was subordinate to the Regional Director and third, he collected extraneous matter to strengthen the case against the petitioner, lead me to the conclusion that the Enquiry Officer was non-independent prejudiced and biased. He was, therefore, incompetent to act as an Enquiry Officer. The order of dismissal is illegal on this ground also.
23. The next point urged before me was that a proper chance of defence was not given to the petitioner. I find that the charge-sheet was framed on 27-5-1976 and the petitioner was required to explain his position. No time was given to him as to when he had to submit his reply to the charge- sheet. At the same time, be was asked to appear before the Enquiry Officer on the next day. It is clear that no time was given to the petitioner to submit his explanation. He did appear before Mr. Semi on the next day and he told him that only sixteen hours had been given to him for submitting a reply. He requested that some more time should be given to him. His request was not considered.
24. It was the duty of the employer to obtain explanation of the petitioner and after applying his judicial mind, a finding was to be given whether the explanation was unsatisfactory. An Enquiry Officer could only be appointed if the explanation was found unsatisfactory. No such decision was taken. Mr. Sami served the charge-sheet on the petitioner or 27,5-1976 and on the same day he appointed the Enquiry Officer. Obviously, this decision was taken without considering the explanation of the petitioner. As proper time was not given to the petitioner to submit his explanation and as an Enquiry Officer was appointed without considering the explanation of the petitioner, therefore, I hold that a prejudice has been caused to the case of the petitioner. On this ground also, the order of dismissal if. Illegal.
25. For the above reasons, the petition is accepted and the respondent is directed to re-instate the petitioner.
26. As the petition has been accepted on techincal ground, therefore, back benefits are not allowed.
PLD 1976 Lah. 1176 PLD 1964 SC 64 1977 PLC 72 1977 P L Q 139 3 H L C 759