1996 PLP 422 (PLC)

ZIA MAHMOOD MIRZA, J.‑‑‑The abovementioned two appeals arise from a single order of the Lahore' High Court whereby two writ petitions filed by the present appellant against the orders of the Punjab Labour Appellate Tribunal directing the reinstatement of respondent employees were dismissed in limine. Both the appeals are, therefore, disposed of through this judgment.

2. Leave to appeal in both the cases was granted only to examine whether after finding the enquiry to be defective, the Labour Appellate Tribunal could justifiably bar a fresh enquiry into charges, which were of embezzlement.

3. Facts strictly relevant for the determination of the short question involved in these two appeals briefly are that Muhammad Saleem Butt (respondent No. l in C.A. 686/93) and Asghar Ali (respondent No. 1 in C.A. 687/93), both Accountants/Grade‑III Officers in the appellate Bank were charge? sheeted on the allegations that while posted in Narowal Branch of the Bank, they in connivance with some other officials of the Bank embezzled various amounts of the account‑holders/depositors by committing fraud and forgeries. An enquiry? was held into the allegations and the Enquiry Officer found them guilty of the charges with the result that both the respondents were dismissed on 10‑5‑1987. They filed grievance petitions under section 25‑A of I.R.O. which were accepted by the Labour Court on the short ground that the enquiry was defective in so far as the respondents were not afforded proper opportunity to defend themselves and the Enquiry Officer also failed to specifically fix the responsibility. The respondents were accordingly directed to be reinstated in service but without back benefits. The appellant bank assailed the orders of the Labour Court in two separate appeals which were dismissed by the learned Labour Appellate Tribunal by a single judgment dated 29‑9‑1991 upholding the view of the Labour Court regarding the enquiry proceedings being defective. The Tribunal also observed that "There is no note that an opportunity of cross‑examination was afforded to the respondents but they did not avail of it. No cross?-examination was recorded, which means that no such opportunity was given to the, respondents. On such proceedings the orders of removal from service could not be based". The request of the appellant bank for permission to hold fresh enquiry was not accepted by the learned Tribunal though holding that in cases of embezzlement, if the employee is reinstated in service on account of defective enquiry, permission for fresh enquiry may be accorded but in the present case, it was observed that "instead of permitting fresh inquiry, the prayer of the respondents for back benefits is disallowed". The learned Tribunal proceeded to observe further "If fresh inquiry is allowed, the possibility cannot be excluded that appellant may happen to prove the charges against the respondents".

4. Feeling aggrieved, the appellant approached the High Court in its Constitutional jurisdiction but with no better result as the learned Judge in the High Court also took the view on the question of fresh enquiry that to drag the respondents again in disciplinary proceedings would be neither just nor proper as it had been rightly observed by Labour Appellate Tribunal that "an attempt would be made now to create evidence to prove charges against him". In the view of the learned Judge, the orders of the Labour Appellate Tribunal declining to permit the appellant to initiate further enquiry proceedings and instead disallowing back benefits to the respondents was just and proper.

5. Learned counsel appearing for the appellant bank contended that the dismissal of the respondent having been set aside by the Labour Tribunals on the ground of defects in the departmental enquiry, the appellant should have been allowed to hold proper enquiry afresh to establish the charges levelled against the respondents particularly when the charges involved serious allegations of fraud, forgery and embezzlement of public money in a Bank. It was pointed out by the learned counsel that according .to the allegations, Muhammad Saleem Butt respondent had been signing bogus cheques, and tampering with the entries in the pass‑books and thus embezzled an amount of Rs.89,930 and similarly Asghar Ali respondent was accused of mis?appropriating/embezzling a sum of Rs.36,

930. It was contended by the learned counsel that the Labour Appellate Tribunal conceded that in cases of embezzlement, permission for fresh enquiry may be granted but declined the permission in the present case for reasons wholly untenable. In the submission of the learned counsel, the impugned orders of the Labour Tribunal and of the High Court shutting out the fresh inquiry are against public interest. In support of his submissions, the learned counsel relied upon ' Shafqat Mahmood Lodhi v. The Accountant‑General, West Pakistan, Lahore PLD 1968 Lahore 786 and "Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance 198,4 CLC 142 (Peshawar).

6. We quite agree with the submissions made by the learned counsel for the appellant and hold that to cases like the present ones where the employees are accused of having embezzled the public money by committing acts of fraud and forgery but the enquiry held against them is found to be defective/bad in law and consequently the orders of their dismissal/removal from service based on such an enquiry are struck down, the employers, in all fairness, should be allowed, if they so desire, to hold fresh departmental inquiry to establish the charges levelled against the delinquent employees. This proposition, as noted hereinabove, was accepted in principle by the Labour Appellate Tribunal but he declined to permit the fresh inquiry in these cases for reasons wholly alien to law. Withholding of back benefits could not furnish any valid justification for shutting out the fresh inquiry. Similarly, the fact that there was a possibility of the charges being proved against the respondents should have been a compelling reason for permitting the fresh inquiry rather than disallowing it. The reasons given m the order of the Labour Appellate Tribunal cannot be justified on any premises. The learned Judge in the High Court was also in error in assuming that the Labour Appellate Tribunal had observed that in case fresh inquiry was allowed, an attempt would be made to create evidence to prove charges against the respondents. No such observation appears to have been made by the Appellate Tribunal and in any case, if an attempt is made to fabricate the evidence, the same can well be exposed by the respondents during the enquiry as also in further appropriate proceedings. Needless to observe that holding of fresh inquiry would not only be in the larger public interest but also in the interest of the respondents themselves. If as a result of the inquiry, they are adjudged to be guilty and punished according to law, it would rehabilitate and restore public confidence in the appellant Bank and also promote discipline, efficiency and financial integrity amongst its employees. If, however, the respondents are found not guilty, they would not only get reinstated in services without any stigma of dishonesty attached to him but they may also be entitled to claim back benefits.

7. In the aforesaid view of the matter, we allow these appeals, set aside the impugned judgment of the Courts below to the extent that they disallowed fresh inquiry and direct that the appellant bank may, if it so wishes hold a fresh inquiry against the respondents, of course, in accordance with law giving full opportunity to the respondents to defend themselves and pass appropriate orders warranted in the facts and circumstance of the case. Needless to observe that the payment of back benefits will depend upon the result of the inquiry. No order as to costs. M.B.A./P-279/S????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.