M.D. THE BANK OF PUNJAB and another vs Syed SHAHZAD HUSSAIN

ORDER

' CH. IJAZ AHMAD, J.--- Brief facts out of which the present petition arises are that respondent was employed in the petitioner's bank on 17-12-1995 as a teaboy. Petitioner regularized his services vide order, dated 15-6-1990 w,e,f, 17-12-1998. Subsequently he was renamed as messenger in August, 2Q00. Disciplinary proceedings had been initiated against the respondent by the petitioner on the charges of embezzlement consisting of four charges. The petitioner had constituted committee to inquire into the matter against the respondent and other employees of the petitioner. The Inquiry Committee submitted its report. According to the inquiry report, three charges i,e, charges Nos.1, 3 and 4 were dropped against the respondent. However, charge No,2 in the embezzlement of PTCL bill amounting to Rs,1,590 deposited by one Tariq Mehmood for November, 1999, respondent was found guilty. The competent authority of the petitioner had terminated the services of respondent vide order, dated 16-4-2001. Respondent being aggrieved, filed grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No,1, Lahore. The learned Labour Court dismissed the petition vide decision dated 20-6-2003. Respondent being aggrieved filed Labour Court Appeal No,195 of 2003 in the Lahore High Court who accepted the same vide impugned judgment, dated 28-6-2005. Hence, the present petition.

2. The learned counsel for the petitioner submits that High Court had erred in law to accept the appeal on technical ground on account of defective inquiry and the action of the petitioner was found in violation of natural justice but the learned High Court erred in law not to allow the petitioners to initiate proceedings against the respondent, therefore, impugned judgment of the learned High Court was not in consonance with the law laid down by this Court. In support of his contention he relied upon Muslim Commercial Bank Ltd. v. Mehmood Ahmad Butt 1997 SCM R 1261 and National Bank of Pakistan v. Punjab Labour Appellate Tribunal (sic). He further urges that Labour Court as well as the learned High Court had no jurisdiction to take the cognizance of the matter in view of provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000.

3. We have given our due consideration to the contention of learned counsel of the petitioners and perused the record. It is an admitted fact that petitioners had not taken an objection qua the assumption of the jurisdiction by the Courts below in terms of the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000. It is pertinent to mention here that petitioners had not taken the said ground in the memorandum of the petition before this Court. It is a settled principle of law that parties are bound by their pleadings as the law laid down by this Court in Mst.

Murad Begum's case PLD 1974 SC 322. It is also a settled proposition of law that fresh plea cannot be raised before this Court at the time of hearing the petition as the law laid down by this Court in the following judgments:--

(i) Bashir Ahmad Khan's case PLD 1973 SC 507 and (ii) Ashfaqur Rehman's case PLD 1971 SC 766.

4. It is also settled proposition of law that the constitutional jurisdiction under Article 185(3) of the Constitution is discretionary in character. It is pertinent to mention here that only charge No,2 against the respondent i,e, for the embezzlement of PTCL bill amounting to Rs,1,590 deposited by one Muhammad Tariq Mehmood was proved against him by the Inquiry Committee on the basis of which respondent was dismissed from service vide order, dated 16-4-2001. The aforesaid finding was found by the learned High Court in the impugned judgment as not correct on the ground that the statements of witnesses produced before the committee by the petitioner against respondent were not duly recorded by the Inquiry Committee, therefore, respondent had not been given an opportunity of cross-examining them. It is a settled principle of law that principles of natural justice must be read in each and every statute unless and until it was prohibited by the wording of the statute itself as the law laid down by this Court in Sir Edward Snelson's case PLD 1961 SC 237, Fazlur Rahman's case PLD 1964 SC 410. The learned High Court was justified to set aside the order of dismissal of respondent passed by the petitioner being violation of principle of natural justice. See Zakir Ahmad's case PLD 1965 SC 90, Pakistan Chrome Mines's case 1983 SCM R 1208 and Pakistan's case PLD 1987 SC 304. It is an admitted fact that respondent was working as a messenger and learned High Court after proper appreciation of evidence had given finding of fact against the petitioner. It is deemed to be proper to mention that grounds which were urged before us had not been pressed before the learned High Court. It is a settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as the law laid down by this Court in Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCM R 2213. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law and have no relevancy to resolve the controversy between the parties keeping in view the special facts and circumstances of the case in hand. The jurisdiction possessed by this Court in such matters under Article 185(3) of the Constitution is discretionary. We are not inclined to exercise discretion in favor of the petitioner in the peculiar facts and circumstances of this case in view of law laid down by this Court in the following judgments:--

(i) Nawab Syed Raunaq Ali's case PLD 1973 SC 236; (ii) Noor's case PLD 1973 SC 469 and (iii)

Muhammad Saifullah D Khan's case PLD 1989 SC 166.

5. It is yet another principle of law that this Court has ample jurisdiction to refuse to exercise discretion in favor of the petitioner in view of Article 187 of the Constitution as the law laid down by this Court in Ch. Zahoor Elahi's case PLD 1977 SC 273.

6. In view of what has been discussed above, the petition has no merit and the same is dismissed.

Leave is refused accordingly. .