UNITED DISTRIBUTORS LTD Versus ZAHID HUSSAIN KHAN , Nemo

KHUDA BAKHSH MARRI, J.- This petition under Article 201(2) of the Interim Constitution of Islamic Republic of Pakistan is directed against the orders of respondents 3 and 2, Junior Labour Court No. X, Karachi dated 6th February 1973, and appellate order of Fifth Sind Labour Court, Karachi dated 10th March 1973, whereby respondent No. 1 Mr. Zahid Hussain Khan was directed to be re-instated.

2. The facts are that the respondent No. 1 Mr. Zahid Hussain Khan was employed as a Garrage Incharge by the petitioner on 16-11-1971, his duties included to supervise the work of drivers and mistries. In this capacity he could incur expenses on behalf of the company and gave work to outside parties and made payments in respect of purchases and work done, on behalf of the company. In month of October 1972, it was discovered by the petitioner that respondent No. 1 was making bogus vouchers of purchases and was fraudulently collecting the cost thereof from the company; these vouchers were prepared by the respondent No. 1 in his own handwriting and were submitted for payment The petitioner's firm got suspicious and found that respondent No. 1 had collected fraudulently from the company sums amounting to thousands of rupees.

3. On 9th October 1972, respondent No. 1 was served with a charge-sheet "Exh. B" by the petitioner stating amongst others that he had made many cash memos in his own handwriting purported to be from different parties each from the same cash book. For example, cash memos Nos. 14, 15, 16, 9 and 11 dated 19-7-1972, 22-7-1972, 28-7-1972, 5-6 1972 and 22-6-1972 respectively, and also that he had made several other cash memos in his own hand?writing purported to be from different parties from the same cash book, cash memos Nos. 9, 24 and 34 dated 2-6-1972, 146-1972 and 11-6-1972 respectively and also that he has received money from the company fraudulently. He was, therefore, charge-sheeted for serious misconduct, dishonesty and fraud and was directed to submit explanation in writing within two days. This charge-sheet was sent by registered A. D. as the respondent No. 1 had absented himself from duty and he was suspended on 10th of October 1972 pending investigation.

4. On 12-10-1972, reply was sent by the respondent No. 1 in relation to the charge-sheet denying all the allegations and stating that all transactions were handled through proper routine and all payments were made only when the sanctioning authority had accepted and approved the documents presented for payment. He challenged the order of suspension.

5. On 15-10-1972, after considering the explanation submitted by the respondent No. 1 dated 12-10-1972 "Exh. D" the petitioner informed him that his explanation was not satisfactory and enquiry was to be held with regard to charges and that Mr. Abdullah A. Ghani, Director of the company, was to hold the enquiry and respondent No. 1 was asked to attend the said enquiry with defence, if any, on 23rd October 1972. Respon?dent No. 1 replied to the letter "Annex. D" by his letter dated 23rd October 1972, "Annex. E", in which he has raised objections to the appointment of Mr. Abdullah A. Ghani as an Enquiry Officer on the ground that he as a Director of the company had complete command on all the employees as well as on the record, therefore, he is not an impartial person. This objection was overruled by the petitioner and proceeding was fixed for 25-10-1972, of which, respondent No. 1 was duly informed.

6. The domestic enquiry was duly held on 25th October 1972 with regard to charges and on the recommendation of the Enquiry Officer respondent No. 1 was dismissed from service from 27th October 1972, vide Annex 'H'.

7. Respondent No. 1 made an application under section 25 (A) in the Junior Labour Court No. X, Karachi, respondent No. 3, who on 6r2-1973 ordered that respondent No. I be re-Instated. Annex. 'I'.

8. The petitioner challenged the above order in the appeal before Fifth Sind Labour Court, Karachi, respondent No. 2, who, however, dismissed the appeal and upheld the order of the Junior Labour Court by his order dated 10th March 1973. Annex. 'J'.

9. We have heard Mr. Hassan A. Shaikh, Advocate for the petitioner and Mr. Obaidur Rahman, Advocate for respondent No. 1 Zahid Hussain Khan, while respondents Nos. 2 and 3 remained unrepresented. Counsel for the petitioner challenged the impugned orders mainly on the ground that they have not applied their minds to the clear legal position that employer was entitled to institute enquiry at any level and that the employer does not become interested only because he is an employer because the mis?appropriated funds would have gone to the common pool of the company and not to the pocket of the Director-cum-Enquiry Officer and that both the lower Courts acted as Courts of appeal against the order of Management in domestic enquiry, while the allegations were of criminal nature of mis?appropriation and criminal breach of trust against respondent 1, that respondent No. 1 having categorically admitted the facts alleged in the charge-sheet pleaded that the normal procedure had been gone through and the onus of proof shifted on to him but he failed to produce any defence and that respondent No. 1 at no stage denied that the vouchers were in his handwriting, that respondent No. 1 did not produce any witness in his defence before the Enquiry Officer in spite of opportunity having been given and that respondent No. 3 acted as a Court of appeal when he examined those witnesses which should have been produced by the respondent No. 1 during the domestic enquiry and that in any case the Enquiry Officer was the judge of the facts before him and his decision was not open to challenge or question in appeal before respondent No. 3 and that under the Labour laws the Management has authority to take decision in the matter of disciplinary action which has been done in this case and that respon?dents Nos. 2 and 3 had no power under the law to set aside the order made by the Management in a disciplinary action in respect of misappropriation which took place in this case, therefore, he prayed that the impugned orders may be set aside.

10. It may be noted that during the course of arguments Mr. Hassan A. Shaikh, Counsel for the petitioner, had given up this objection that respondent No. 1 was not a workman under the West Pakistan Industrial .and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations .Ordinance, 1969 and conceded that under the relevant laws respondent No. 1 comes within the ambit of definition of a "workman".

11. Mr. Obaidur Rahman learned counsel for the respondent No. 1, however, argued that the domestic enquiry hold by the petitioner was defective and not in accordance with Ordinance VI of 1968 because no opportunity for explanation of the charges was given to the respondent before the order of dismissal, therefore the principles of natural justice have been violated. Order 15 (4) of 1968 is as under : ----

"No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the employer is required in every case of dismissal and, when circumstances appear to warrant it, the employer may institute independent inquiries before dealing with charges against a workman."

He next argued that the Enquiry Officer Mr. Abdullah A. Ghani, admittedly the Director of the company, was an interested person, therefore, the domestic enquiry cannot be said within law to be an independent enquiry and that in spite of objections raised by the respondent No. 1 he conducted the enquiry and ultimately dismissed the respondent No. 1 from service. He however conceded as has been observed by respondent No. 3 Junior Labour Court, Karachi in his order, that the Junior Labour Court could not sit as a Court of Appeal on the findings of the Enquiry Officer as has been done in this case. He argued that Court could interfere as did in this case when it came to the conclusion that the enquiry has been made with mole fide intention and has been made improperly. This argument is not available because respondent failed to produce any evidence with regard to male fide on part of the petitioner. Next while going through the record of the case we do not see any force in the arguments advanced by the learned counsel Mr. Obaidur Rahman because admittedly respondent No. 1 had participated in the domestic enquiry held by the petitioner on 25-10-1972 in spite of his previous objections. During the enquiry, statements of Mr.1 Ilyas Baig, Personnel Officer, Mr. Shahideen, Departmental Manager and Mr. Tahir Khaliq as well as Mr. S. M. Aminuddin, Accountant, were recorded and respondent No. 1 in fact cross-examined some of them with regard to allegations. Not only this, the domestic enquiry does show that respon?dent No. 1 allowed himself to be examined at great length, and he was cross-examined by Mr. Ilyas Baig wherein he has admitted that be has written all these cash memos. When he was asked by the Enquiry Officer had he any thing else to say in his defence, he replied: "I have already given my 4 statement and have nothing to add or produce". Each page of the enquiry report is signed by respondent No. 1 as well as the enquiry officer and this fact has not been denied by him. Thereafter findings reached by the Enquiry Officer, was submitted to the Chairman of the petitioner who has passed the dismissal order on 27-10-1972 according to the report of the enquiry officer after perusing the proceeding of the domestic enquiry as' well as the final report. It is therefore too late in the day on the part of the respondent No. 1 to say that principles of natural justice were violated and he was not given any opportunity of being heard by the petitioner. His learned counsel when questioned as to why in spite of previous objections, the respondent No. 1 had participated in the domestic enquiry and as to why he went to the length of giving his own statements and cross-?examined the witnesses? The counsel did not make any worthwhile and satisfactory answer. It is not the case of the respondent No. 1 that he was an illiterate person or that be was compelled to participate in the proceedings of the domestic enquiry. He was a responsible and educated officer as he was drawing salary of Rs. 600 per month and he has signed each and every page of the enquiry proceedings, therefore, it cannot be said that there was any compulsion or duress on the part of the petitioner obliging respon?dent No. 1 to participate in the proceeding to which he had earlier objected. Therefore, we are of the opinion that he voluntarily submitted to the domestic enquiry. This fact is further supported by Annex. 'L', dated 30-11-72 submitted by the respondent No. 1 to the petitioner, wherein amongst others he has stated;

"However, despite my objection I attended the said enquiry in good faith for the sake of my employment and in the hope and faith that justice shall be done to me. Though I attended the enquiry also on 25th October 1972, in response to your telegrams Nos. 00052 and 00061 respectively yet my objections were not recorded. However, the charges levelled against me relating to the following cash memos. were withdrawn by the Enquiry Officer at the time of conducting the enquiry :-

Cash Memo. No. 203 dated 23-7-1972.

., ? ' 220 ? ?????????????????????????????????????????????????????????????????????????????????????????????????????? 19-8-1972 .

.. .. 23 0 ? ??????????????????????????????????????????????????????????????????????????????????????????????????????? 7-9-1972.

.. .. 41 ? ? ??????????????????????????????????????????????????????????????????????????????????????????????????????? 18-6-1972.

12. Even on his own above admission, it cannot be said that the enquiry was bad partially or the petitioner was not given any chance to defend himself because on his own admission certain charges with regard to certain cash memos. were withdrawn by the Enquiry Officer.

13. Hence we are of the opinion that there was no necessity as submitted by his counsel that second show-cause notice should have been given to the respondent No. 1 before issue of dismissal order because his representation Annexure 'L' after dismissal, was considered and rejected by the petitioner as stated above.

14. In view of the facts and circumstances of this case, we are of the opinion that both the Courts below have not applied their mind to the legal and factual aspects of this case, particularly they could not sit as a Court of appeal on the decision of the domestic enquiry and no plausible reason has been shown in the impugned orders justifying interference with order passed by the Enquiry Officer. The respondent was given full opportunity through out to represent his side of the case and produce witnesses. He participated in the proceedings, got himself examined and cross-examined some of the witnesses and did not produce any witness in defence as is borne out by the record, therefore, it cannot be said as has been submitted on his behalf that he was not given any opportunity to defend himself.

15. For the reasons given above we find sufficient force in the petition and consequently hold that the impugned orders of the Courts below are ?without lawful authority. The result is that we accept this petition, set aside the impugned orders, but make no order as to costs.

S. A. H. ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.