ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P No.D-1306 of 2012
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Order with signature of Judge
Present:
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Shaukat Ali Memon
Muslim Commercial Bank Ltd. ………….. Petitioner
Versus
Abdul Waheed Abro & Others ………….… Respondents
Date of hearing 13.01.2015
Mr.Javed Asghar, Advocate for the Petitioner.
Mr.Hussain Bux Balouch, Advocate for the Respondent No.1.
Ms.Farhana Mangi, State Counsel
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Muhammad Ali Mazhar J. This petition is brought to challenge the order dated 27.2.2012 passed by the Sindh Labour Appellate Tribunal in Appeal No.391/2010 (L.A.07/2005) and the order 13.10.2005 passed by the Labour Court No.VII, Sukkur in Grievance Petition No.07/2003.
2. The petitioner is a Banking Company having its head office at Karachi. The respondent No.1 was performing his duties as Cashier in the MCB Branch, Rohri. A complaint of misappropriation was lodged against the respondent No.1 that he received Rs.187,434/- but failed to credit it on the same day. The matter was investigated and a report was submitted by Circle Office, MCB Sukkur. The uncle of respondent No.1 appeared and undertook that he will repay the amount of Rs.160,000/-. After charge sheet an inquiry was ordered by the management. The respondent No.1 participated in the inquiry and found guilty thereafter he was dismissed from service on 09.08.2003. After dismissal, the respondent No.1 served a grievance notice and filed grievance petition in the Sindh Labour Court No.VII at Sukkur. The labour court allowed the grievance petition and ordered the reinstatement without back benefits. The order of labour court was challenged in the Labour Appellate Tribunal by the petitioner and the respondent No.1 also assailed the order against the denial of back benefits to him. The appeal filed by the respondent No.1 was dismissed for non-prosecution while the appeal filed by the petitioner was disposed of with the modification that dismissal order was converted into stoppage of increment of three years, however, the Labour Appellate Tribunal maintained the order of reinstatement passed by the labour court so to the extent of reinstatement order, the findings recorded by the courts below are concurrent in nature.
3. The learned counsel for the petitioner argued that the courts below passed the orders without appreciating the evidence. At no stage the respondent No.1 complained about conduct of inquiry officer or the inquiry. The charges were proved in the inquiry even then if the courts below were of the view that there was any irregularity in the inquiry, an option should have been given to the employer to conduct an inquiry afresh. He further argued that the Labour Appellate Tribunal itself observed that the respondent No.1 was responsible for the shortage of cash which created problems for the bank hence the management was entitled to proceed against him through charge sheet and inquiry, regardless of, the order of reinstatement was maintained. It was not necessary for the management to produce all the witnesses of domestic inquiry in the court. The charge of misappropriation and or embezzlement was based on documentary evidence. Substantial evidence was produced in the inquiry and also in the labour Court. The respondent No.1 did not make any request to call any witness during inquiry or in the labour court. It is misconceived that while holding inquiry no opportunity was provided to cross examine all the witnesses produced by the bank. The respondent No.1 cross examined one management witness Irshad Ali Soomro in the domestic inquiry, however, he did not cross examine other witnesses. It was further averred that the Labour Appellate Tribunal picked the portion of evidence in isolation to support its findings and ignored the testimony of the witnesses and documentary evidence. In support of his arguments, the learned counsel for the petitioner referred to following precedents:-
(1) 1989 PLC 484 (A.F. Ferguson & Company v. Sindh Labour Court No.II & others). Complaint forming basis of charge-sheet against employee, not present before Inquiry Officer at the time of inquiry. Such inquiry would not be fatal if same was held in accordance with well-established principles and statutory rules.
(2) 2002 SCMR 753 (WAPDA v. Abdul Waheed). In the present case charge of corruption/misappropriation was proved against the civil servant. Under such circumstances, the appropriate forum for determining if he was to be allowed to continue in service or not was the departmental authority, whose opinion shall be given due weight, unless otherwise is shown. The departmental authority knows better than anybody else to decide such issue. After the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fiber of discipline in service, besides encouraging others to resort to such illegal activities as to enrich themselves by illegal means with impunity at the cost of welfare of the society for whose benefit they are employed.
(3) 2003 PLC (C.S) 1247 (Sultan Hussain v. National Bank of Pakistan & others). Dismissal from service. Misconduct. Civil servant was served with show cause notice regarding financial irregularities and embezzlements. Civil servant was dismissed from service after inquiry. Appeal before Service Tribunal was also dismissed. Plea raised by the civil servant was that the alleged embezzled amount had already been deposited by him, therefore, penalty of dismissal from service was illegal. Validity. Mere fact that the amount allegedly drawn in fraudulent manner was returned and no loss was caused to the Bank, would not remove the charge of misconduct against the civil servant who being custodian of public and private money was not supposed to act in breach of trust.
(4) 2007 PLC 381 (MCB v. Ghulam Mustafa Channa). Section 46, 47 (3) and 48. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) S.O. 15 (3) (b) and (4). Services of employee serving as Assistant in Bank were terminated after charge-sheeting him and holding inquiry against him on ground of misconduct. Labour Court while acting contrary to the evidence available on record granted relief to employee on the premise that the Bank had not suffered any pecuniary loss. Bank acts as custodian of the public money and the amount whatsoever was deposited was required to be credited in the accounts of customer without any delay and no sooner the trust reposed by the customer on the bank was shaken, the bank would not be in a position to run its business.
4. The learned counsel for the Respondent No.1 argued that the instant petition is an attempt to drag the respondent No.1 to an unlimited period so that the petitioner may avoid the implementation of order. There was no delay in the deposit of cash. Neither any written complaint was on record nor does the deposit slip bear signature of the respondent No.1. He was performing his duties on payment counter and not on receiving counter. The payment of defaulted amount was extorted from the uncle of the respondent No.1 after keeping respondent No.1 in the police custody and under compulsion the statement of the respondent No.1 was also obtained admitting his guilt under pressure and coercion. During inquiry no opportunity was given to the respondent No.1 to cross examine all the witnesses which fact has been admitted by the inquiry officer in his cross examination. The courts below rightly decided the case after appreciating the evidence. No material illegality or irregularity has been pointed out which requires any interference by this court in the constitutional jurisdiction against the concurrent findings recorded by the courts below to the extent of reinstatement of the respondent No.1 in service though without back benefit.
5. Heard the arguments. The petitioner has challenged the order dated 27.2.2012 passed by Sindh Labour Appellate Tribunal and the order dated 13.10.2005 passed by the Sindh Labour Court No.VII. The labour court set-aside the dismissal order of the respondent No.1 and reinstated him in the service without back benefits while the learned labour appellate tribunal vide its order dated 27.2.2012 maintained order of the labour court as regards to the reinstatement in service however, the tribunal had modified the order of the labour court only to the extent that dismissal order from service was converted into stoppage of increment of three years. The grievance petition was filed by the respondent No.1 in the labour court under Section 46 of the Industrial Relation Ordinance, 2002. If we examine both the impugned orders in juxtaposition one thing is clear that the findings in relation to the reinstatement of the respondent No.1 is concurrent. It is also a fact that the respondent No.1 also filed an appeal in the labour appellate tribunal against non-allowing of back benefits by the labour court to him, but his appeal was dismissed for non-prosecution, so there is no further controversy involved against the non-grant of back benefits to the respondent No.1. It is well established that Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the frame work of constitution and if there is any error on the point of law committed by the courts below or the tribunal or their decision takes no notice of pertinent provision of laws or is based on mis-reading or non-reading of evidence then obviously this court may exercise constitutional jurisdiction subject to the non-availability of any other equally efficacious and alternate remedy under the law. This extra ordinary jurisdiction may be invoked to encounter and collide with extra ordinary situation. This constitutional jurisdiction is limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the courts or tribunals below passed in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vesting in them. The jurisdiction conferred under Article 199 of the Constitution is discretionary with the objects to foster justice in aid of justice and not to perpetuate injustice. However if it is found that substantial justice has been done between the parties then this discretion may not be exercised. So far as the exercise of the discretionary powers in upsetting the concurrent findings recorded by the courts below is concerned, this court has to comprehend what gross illegality or irregularity and or violation of law committed by the courts below which caused miscarriage of justice. It is also well settled exposition and tenet of law that this court in its constitutional jurisdiction keep away from interfering the findings of facts recorded by the courts below concurrently after right and proper appraisal of evidence and cannot substitute and supplement its own findings.
6. In the case in hand the respondent No.1 was issued a show cause notice and the domestic inquiry was also conducted against him by the management. The dismissal of the respondent No.1 is based on the finding of the domestic inquiry. The inquiry proceedings were produced in the labour court and the inquiry officer and the Branch Manager also appeared as witnesses of the petitioner in the labour court. Since the dismissal was based on the force of inquiry therefore, it was the realm and province of the courts below to perceive and become aware of whether an impartial inquiry was conducted or not? The next crucial question for them was to fathom out whether the respondent No.1 was allowed ample opportunity of defence in the inquiry or not? Though the allegation against the respondent No.1 was serious that he misappropriated cash and the bank found him guilty therefore the right to hold domestic inquiry was rightly exercised by the management but in order to prove the charges or guilt of delinquent, an evenhanded, unbiased and impartial inquiry was indispensible. On the contrary, the respondent No.1 took the plea that he was not afforded fair opportunity to defend the charges. Even the inquiry officer appeared in the labour court as witness of management/petitioner also admitted the lapses, oversights and shortcomings in the inquiry. During inquiry, the inquiry officer only allowed the respondent No.1 to cross examine Irshad Ali Soomro, representative of the management and the respondent No.1 was cross examined by Irshad Ali Soomro. The representative of management produced at least six more witnesses before the inquiry officer but no opportunity of cross examination was make available to respondent No.1. This fact was admitted by the inquiry officer, Shafi Muhammad Shaikh during the cross examination in the labour court. Let us reproduce selected excerpts from the cross examination of inquiry officer:-
“I was enquiry officer in the case of the applicant Abdul Waheed.”
“I have also seen the Annexure filed with the Enquiry Proceedings. I see Annex: ‘B’ at page 20 filed with the Reply Statement and I do not know about this document. This document was not produced/presented before me during the course of enquiry. Voluntarily says that statement of Altaf Khan however was recorded by me.”
“I see Anne: “F” at page 26 of reply statement and say that it is statement of Ghulam Mustafa Bhutto recorded by me. It is correct that it does not bears my signature. It is correct that this also does not bears the signature of applicant. Voluntarily says that signature of Mr.Bhutto is appearing on it, and it is not necessary that each and every page of proceedings is to be signed by the Enquiry Officer or signature is obtained from the person against whom enquiry was conducted. It is correct that page 27 of Annex: ‘F’ is said to be statement of witness Muhammad Hassan recorded by me but does not bears my signature.”
“The statement of witness was recorded in the presence of applicant, and witnesses called one by one. Both the parties were given an opportunity to cross examine each other. Accused Abdul Waheed cross examined management witness Irshad Ali Soomro and Management witness Irshad Ali Soomro cross examined to the applicant. Both statements are available on record.”
“The cross examination of other witnesses were not conducted. On behalf of Management other statements of witnesses Irshad Ali Soomro, Altaf Hussain Manager, Ghulam Mustafa Bhutto, Kashif Shaikh Cashier, Muhammad Hassan and Abdul Rasheed Ansari Cashier were recorded but opportunity for cross examination to the accused Abdul Waheed was only given to the extent of witness Irshad Ali Soomro representative of Management.”
“The alleged mis-appropriation was pointed out on 28.5.2003 while it was actually committed on 27.5.2003.”
“It is correct that on 30.5.2003 the alleged amount was deposited by the uncle of the applicant.”
“I do not know if applicant was in police custody from 28.5.2003 to 30.5.2003.”
Another witness Altaf Khan, Branch Manager was also produced in the labour court and relevant excerpts from his cross examination are also reproduced as under:-
“At the relevant time I was Manager of the Branch. I was Assistant Vice President of Bank. About 200 to 250 vouchers of debits and credit are prepared daily in the branch. No written complaint prior to the alleged incident was received by me against the applicant. Voluntarily says there were oral complaints about late depositing against applicant Abdul Waheed. It is correct that no action on those oral complaints was taken by me.”
“The alleged incident was pointed out on 28.5.2003. It is correct that at the opening time of 28.5.2003 there was no short fall at all. It is not correct that applicant was in police custody from 28.5.2003 to 30.5.2003. Voluntarily says that applicant was in police custody from 28.5.2003 to 29.5.2003”.
“It is not correct to suggest that the then General Manager of the Area had directed that unless the amount is not paid, the accused should not be released from the custody. Voluntarily says that General Manager had directed that if amount is paid by the applicant as per his written document on the next day, he should be released from the custody. It is correct that on 30.5.2003 the amount was deposited by the uncle of the applicant.”
“It is correct that no monitory loss is sustained by the Bank.”
7. The inquiry officer himself admitted in his cross examination that besides the management representative five more persons were produced in the inquiry, but they were not allowed to be cross examined by the respondent No.1 during inquiry proceedings. The reply statement filed by the petitioner in the labour court shows that the inquiry was conducted on the report submitted by the manager and they produced the report of manager with their reply statement as annexure-B but in the cross examination of the inquiry officer he shown his ignorance about this documents even he admitted that this report was not produced before him during inquiry. The manager in his cross examination admitted that the applicant was in police custody from 28.5.2003 to 29.05.2003 and the alleged misappropriated amount was deposited by the uncle of the respondent No.1. He further admitted that the alleged incident was pointed out on 28.5.2003 and at the opening time of 28.5.2003 there was no short fall at all. Learned counsel for the petitioner argued that the respondent No.1 himself signed the statement accepting his guilt. The statement of respondent No.1 attached with the petition shows that it was signed on 28.5.2003 and the undertaking submitted by his uncle Allah Lok was signed on 29.5.2003. Both the aforesaid documents were signed on the dates when the respondent No.1 was admittedly in the police custody. The manager further admitted in his cross examination that there was no monetary loss to the bank. The reinstatement order was passed by the labour court due to defects in the inquiry which is of course for the reasons of not providing ample opportunity to the respondent No.1, as out of six witnesses produced in the inquiry the right of cross examination was afforded to only one witness. The learned counsel for the petitioner argued that non-providing the opportunity of cross examination of five witnesses to the respondent No.1 does not have any adverse effect on the fate of inquiry. In our view, the acid test whether the evidence is trustworthy or inspiring confidence could be performed only with the tool of cross examination. The purpose of the cross examination is to check the credibility of witnesses and to elicit truth or to expose falsehood. When the statement of witness is not subjected to the cross examination, its evidentiary value cannot be equated and synchronized with such statement that was made subject to the cross examination. The cross examination is not just a mere formality but it is a valuable right to bring the truth out. It is also well settled proposition of law that where no opportunity of cross examination is provided, the testimony of witness would be inadmissible. It is not the case here that during inquiry, the inquiry officer afforded the opportunity to the respondent No.1 to cross examine all the witnesses but he refused, quite the opposite this is a case where no opportunity was provided to respondent No.1 to cross examine the witnesses. Both the courts below found the inquiry defective and the allegations leveled in the charge sheet/show cause notice against the respondent No.1 were found unproved and unsubstantiated.
8. The learned counsel for the petitioner referred to the case of A.F. Ferguson & Company (supra) in which the court held that complaint forming basis of charge-sheet against employee not present before Inquiry Officer. Such inquiry would not be fatal if it was held in accordance with well-established principles, while in the case of WAPDA (supra) it was held by the apex court that after the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fibre of discipline in service. In the case of Sultan Hussain (supra) it was held that if the amount allegedly drawn in fraudulent manner was returned and no loss was caused to the Bank, would not remove the charge of misconduct against the civil servant who being custodian of public and private money was not supposed to act in breach of trust, while in the case of same petitioner i.e. MCB v. Ghulam Mustafa Channa (supra) the court held that the service of employee was terminated after charge-sheeting him and holding inquiry but the labour court granted relief to employee on the premise that the Bank had not suffered any pecuniary loss.
9. All the aforesaid precedents referred to above by the learned counsel for the petitioner are distinguishable to the facts and circumstances of the present case. In the aforesaid dictums, there was nothing to show that domestic inquiry was conducted, witnesses were examined but no right of cross examination was given to the delinquent. The purpose of issuing show cause notice and holding of inquiry is to ascertain whether the charges of misconduct leveled against the employee are proved or not. We have no doubts in our mind that in case where charge of misconduct is proved after an impartial and fair inquiry, obviously it is the prerogative and sphere of the employer/management to decide the sternness and severity of the punishment which may include dismissal from service. Concomitantly, the exercise of this power made it obligatory upon the management to provide fair opportunity of defence in the domestic inquiry to an accused employee. If the management appoints an inquiry officer for conducting inquiry in the disciplinary proceedings, it is an onerous duty of the inquiry officer to explore every avenue so that the inquiry may be conducted in a fair and impartial manner and he should avoid razing and annihilating the principle of natural justice which may ensue the miscarriage of justice. We are sanguine that neither the domestic inquiry can be treated at par with the court proceedings nor the inquiry officer as judicial officer, contrariwise, principle of natural justice cannot be ignored and once a person/employee is subjected to domestic inquiry and evidence is recorded against the delinquent then it is his inherent right to cross examine the witnesses and if such right is not made available then the testimony of witness against such delinquent would have no dependability or admissibility to decide the guilt. It would not be out of place to mention here that right of fair trial and due process has now become fundamental right in our Constitution under Article 10-A by virtue of 18th Amendment. At this juncture we would also like to quote the case of “Rijomal vs. Tarachand” reported in 2011 CLC 1136, authored by one of us (Muhammad Ali Mazhar-J) in which it was held that the object of cross examination is twofold i.e to bring out desirable fact of case modifying examination-in-chief or establishing cross examiner’s own case and to impeach credit of witness. Cross examination helps in discovery of truth and it is skillful art to extract something in cross examiner’s favour out of the lips of his opponent.
10. The learned counsel for the petitioner argued that instead of reinstatement of respondent No.1 the labour court could have directed the petitioner to hold fresh inquiry. The inquiry was initiated in the year 2003. The labour court decided the matter in the month of October, 2005, while the appeal was decided by the labour appellate court in the month of February, 2012. Since then the respondent No.1 is facing miseries of protracted trial that by no means responsible or accountable for the defects perceptible and discernible in the inquiry, there is no rationality to order fresh inquiry which will make the petitioner back to square without his own fault hence we do not want to dwell too much in this regard. So far as the plea that the labour appellate tribunal converted the dismissal into stoppage of increment for three years it would not have any material or any substantial adverse effect when the labour court as well as the tribunal both found the respondent No.1 entitled for the reinstatement in service though without back benefits due to defective inquiry. After maintaining the order of reinstatement in fact the labour appellate court allowed some leverage and opportunity to the petitioner for stopping three years increments and even this finding is set-aside, the reinstatement order will remain in field so it is immaterial to travel into its minutiae and niceties when the substantial justice has been done. In fact the conversion of dismissal in stoppage of increment might have given a cause of action to the respondent No.1 that despite concurrent findings meant for reinstatement, the tribunal has unjustifiably converted the order of dismissal to stoppage of increment but he accepted this finding and did not challenge in this court.
11. On 15.5.2012, the learned division bench of this court issued notice to the respondent No.1 and Advocate General but in the meantime the court suspended the operation of impugned orders only to the extent that the respondent No.1 shall not be posted as a cashier of the petitioner bank. Since we maintain the concurrent findings with regard to reinstatement, therefore it is the prerogative of the management to decide the designation and posting of respondent No.1 in accordance with the norms of their indoor management.
12. As a result of above discussion, this petition is dismissed.
Karachi:- Judge
Dated. 26.5.2015 Judge