ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-2395 of 2011

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Date Order with signature of Judge

Present

Mr. Justice Muhammad Ali Mazhar.

Mr. Justice Abdul Maalik Gaddi.

M/s. State Life Insurance

Corporation of Pakistan ...…………. Petitioner

V E R S U S

Shahid Khan & others ……………. Respondents

Date of hearing 25.10.2016

Mr. Ali Asadullah Bullo,

Advocate for the Petitioner.

Syed Muhammad Saulat Rizvi,

Advocate for the Respondent No.1.

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Muhammad Ali Mazhar, J: This petition has been brought to challenge the concurrent findings of the Labour Court in Grievance Petition No.203 of 2006 dated 20.05.2009 and the order passed by the learned Labour Appellate Tribunal in Appeal No. HYD-467 of 2010.

2. The brief facts of the case are that the petitioner came into the knowledge that respondent No.1 tampered the policy and opened fake account in Allied Bank Limited, Station Road Branch, Hyderabad. On this allegation, a show cause notice was issued to the Respondent No.1, thereafter, he was dismissed from service. The Respondent No.1 challenged the dismissal order in Federal Service Tribunal, Islamabad in Appeal No.323(K)(CE)/2002 and vide order dated 02.10.2004 it was held by the Federal Service Tribunal that since the Respondents failed to hold inquiry in accordance with law, therefore, the appeal was accepted and the dismissal order was set aside and the matter was remanded back to the

Respondents to hold denovo disciplinary proceedings in accordance with law in the meanwhile the Respondent No.1 was reinstated to his post. After conducting the denovo inquiry, again the Respondent No.1 was dismissed from service and in the meanwhile due to the judgment rendered by the hon’ble Supreme Court in the case of Mubeen-us-Salam (SBLR 2006 (S.C) 258), the Respondent No.1 assailed his dismissal order in the Labour Court and again his grievance petition was allowed and the order from removal of his service was set aside with the directions to reinstate the Respondent No.1 in service with full back benefits. The findings of the learned Labour Court on the point No.3 are reproduced as under:-

Point No.3

“The learned Advocate for the applicant has submitted that the enquiry was conducted in questions answers form which was in violation of enquiry proceedings. I have gone through the enquiry proceedings filed along with the pleadings and the contentions of the applicant appears to be correct. The applicant was given questions which he replied in his own hand writing, this procedure is not permissible in law as held in 2004 SCMR 294. No complainant was examined in the enquiry neither any witness of the respondent was cross examined in the enquiry nor main culprits Mubarik and Imran were examined. The statement was taken under coercive more over the author and signatories of the said letter were not examined in the enquiry. The enquiry committee itself assumed the role of prosecutor and tried to trap the applicant which is clear violation of law. They have also not filed any record pertaining to the allegations in the court which was admitted by the witness of the respondent that neither any tampered policy has been filed in the court nor any document related to the charges against the applicant is filed in the court. It has further been stated that the witness who appeared before this court on behalf of the respondent was not the enquiry officer. He was not conversant with the facts of the case. He has further admitted that they have not filed any proof in this court that applicant opened his account in the Allied Bank of Pakistan. He has further admitted that they have not filed any proof regarding acceptance of

cheque by the applicant. The witness further admitted that he was not aware of the fact that in the enquiry who put questions to the applicant. He admitted that the enquiry committee put the questions to the applicant. The witness of the respondent further admitted that he was also not aware of the fact that who was appeared on behalf of the respondent in second enquiry. He has admitted that affidavit was sworn one Imran wherein the guilt for depositing the amount was admitted. He had voluntarily said that Imran was not their employee and he was outsider. He has further admitted that they have failed to file any proof that the applicant had deposited the amount. He has admitted that in second enquiry Imran and Mubarak were not called.

From the contents of written statement filed on behalf of the respondent, it appears that during re-enquiry which was conducted by the Enquiry Committee they relied upon the enquiry proceedings of previous enquiry which is apparent from the contents of para-5 of the written statement that second enquiry committee confirmed from the members of the previous committee that the said undertaking was signed in their presence and they also put their thumb impressions. It has further been come in the light that the main culprit in this case was Imran who was an outsider and from the witness of the respondent that the amount was paid by Mr. Imran and the enquiry committee failed to examine the said Imran who is author of affidavit. The respondent has tried to shift the responsibilities on the shoulder of the applicant but primarily and under law the respondents were responsible to procure his attendance before the enquiry officer to establish the guilt of the applicant. From the above discussion, it is proved that the second enquiry which was initiated on the direction of Federal Service Tribunal was not according to law and the same is hereby discarded.

In view of the above, the order of removal from service of the applicant is hereby set aside and the respondents are directed to reinstate the applicant in service with full back benefits as he was jobless since the day of his removal from service within one month.”

3. Being aggrieved and dissatisfied by this order, the petitioner filed an appeal before Sindh Labour Appellate

Tribunal and vide order dated 12.05.2011 the appeal was also dismissed.

4. Learned counsel for the petitioner argued that in the denovo inquiry the guilt was proved and he referred to page 63 which is allegedly an undertaking signed by the Respondent No.1 with two other persons Mubarak Ali and Imran Siddiqui. The basic arguments of the learned counsel for the petitioner is that overwhelming evidence was produced but it was ignored by the Labour Court and Labour Appellate Tribunal, therefore, he requests that one more chance may be given to conduct fresh inquiry where they will produce all relevant documents with ample opportunity to the Respondent No.1 to defend the charges. While learned counsel for the Respondent No.1 argued that it is clearly manifesting from the order of the Labour Court and Sindh Labour Appellate Tribunal that even the denovo inquiry was defective and proper procedure was not followed nor any opportunity was provided to the Respondent No.1. Even the star witness such as Imran Siddiqui and Mubarak Ali were never examined in the enquiry nor in the Labour Court. He further argued that the concurrent findings cannot be upset in the writ jurisdiction as there is no material illegality or irregularity available in both the impugned orders.

5. Heard the arguments. It is well settled that against the concurrent findings of the facts recorded by the courts below, this court in the constitutional jurisdiction cannot reappraise or examine the factual controversy afresh. However, in case of glaring illegality or irregularity, this court may make correction in the orders below. But in the case in hand the entire reliance is at page 63 which is allegedly an undertaking signed on 06.10.2011. Fair opportunity was provided to the petitioner to conduct denovo inquiry and it was their responsibility to conduct inquiry fairly where they could have produced all relevant material and examine the witnesses which they have

failed to do at the relevant time. There are also defects in the inquiry procedure and proceedings which are rightly pointed out by the learned Labour Court and affirmed by the learned Appellate Tribunal. No complainant was examined in the inquiry neither any witness of the Respondent No.1 was cross examined nor main culprits Mubarak Ali and Imran Siddiqui were examined. The learned labour Court also reached to the conclusion that statement of the Respondent No.1 was taken under coercion. The Inquiry Committee assumed the role of prosecutor. Even nothing was produced in the labour court to show or to prove the guilt of the Respondent No.1. The petitioner’s witness failed to file any tampered policy nor any document related to the charges against the Respondent No.1. It is further stated in the Labour Court order that the Management of the petitioner failed to file any proof regarding opening of bank account in the Allied Bank and they have further admitted that they have no proof regarding acceptance of the cheques by the Respondent No.1. We feel that learned Labour Court after examining the entire evidence available on record rightly reached to the conclusion and set aside the dismissal order which order has been maintained by the learned Labour Appellate Tribunal where also the entire evidence was considered.

6. As a result of above discussion, we do not warrant any interference in the orders passed by the Courts below. This petition is dismissed.

JUDGE

Aadil Arab