2017 PLP 191 (PLC)

SHHAHID MUBEEN, J.

Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of judgment dated 22.06.2016 passed by the learned Punjab Labour Appellate Tribunal, Lahore/ respondent No.1, whereby the judgment dated 14.04.2015 passed by the learned Punjab Labour Court No.2 Lahore, was upheld.

2. Briefly stated the facts of this case are that respondent No.2 was appointed as Apprentice on 07.03.1991 and was engaged in shift work in the petitioner-Factory. A motorcycle of another employee was stolen from the premises of the factory and during investigation of a criminal case lodged against respondent No.2 by the owner of the motorcycle, motorcycle was recovered from him by the Police. A show-cause notice was issued to respondent No.2 and he submitted his reply thereto, which was found unsatisfactory. An inquiry was conducted against him as a result of which the Inquiry Officer of the petitioner-Factory, concluded that charge against respondent No.2 stood proved and consequently he was dismissed from service vide letter dated 08.02.1996. Respondent No.2 issued a grievance notice to petitioner and then filed a grievance petition before the learned Punjab Labour Court No.2 which was accepted vide judgment dated 14.04.2015. Being aggrieved by the said judgment of learned Labour Court, the petitioner preferred an appeal before the learned Punjab Labour Appellate Tribunal which was dismissed vide impugned judgment dated 22.06.2016. Hence, this writ petition.

3. Learned counsel for petitioner contends that the impugned judgments passed by the learned Punjab Labour Court as well as learned Punjab Labour Appellate Tribunal suffer from misreading and non-reading of oral as well as documentary evidence available on record. Learned counsel further contends that respondent No.2 was dismissed from service vide order dated 08.02.1996 after completing all codal formalities prescribed under the law.

4. Conversely, learned counsel for respondent No.2 supports the impugned judgments.

5. I have heard the arguments of learned counsel for the parties and have gone through the record with their assistance.

6. In order to prove the charges, the petitioner-company produced Muhammad Yaqoob Senior Officer Security/Gates as P.W-1 in the inquiry who in his examination-in-chief has stated that he received an application from Muhammad Ajmal FP Department for missing of his motorcycle. In cross-examination he has admitted that in the application no body was nominated. He further admitted that in the application of Bahadar Khan no person has been nominated about stealing of motorcycle. He further admitted in his cross-examination that the application dated 03.05.95 submitted by Bahadar Khan does not bear his signatures. He further admitted that Bahadar Khan has died. He further admitted that neither the motorcycle was recovered from respondent No.2 in his presence nor he had seen respondent No.2 while taking away the motorcycle. The petitioner-factory also produced Muhammad Ajmal Khan, Card No.7058-FP as P.W-2 whose motorcycle was stolen. He admitted in his cross-examination that he had not shown any suspicion on any person. He further admitted that he had not seen anybody while taking away the motorcycle. He further admitted that he has not filed any complaint against Contractor who was responsible for the safe custody of the motorcycle.

7. From bare perusal of statements of above two witnesses it is crystal clear that none of the P.Ws. has seen respondent No.2 while stealing or taking away the motorcycle. Respondent No.2 appeared as D.W-1 before the Inquiry Officer and denied the allegations of theft of motorcycle. His statement could not be shaken in the cross-examination. Respondent No.2 also produced Muhammad Zafar Ullah employee No.2416 Quality Control Department who in his evidence has stated that neither the motorcycle was recovered from respondent No.2 nor he committed theft of motorcycle. In cross-examination it has not been suggested to him that respondent No.2 has committed theft of motorcycle. Respondent No.2 also produced Amjad Ali, employee No.8702 Quality Control Department, who in his cross-examination has denied that motorcycle has been recovered from respondent No.2. From the bare perusal of evidence produced by the petitioner and respondent No.2 it is crystal clear that no body has seen respondent No.2 while committing theft of motorcycle.

8. Before the learned Labour Court, respondent No.2 appeared as P.W-1 and reiterated the contents of grievance petition. He deposed in his examination-in-chief that he requested the petitioner-factory to examine Chowkidar so as to explain the incident which happened on 30.04.1995 at 6:30 a.m. He further deposed that in his representation he requested the Inquiry Officer to summon the record as well as Chowkidar to verify the fact. This portion of statement of respondent No.2 has not been cross-examined by the petitioner's counsel. In my humble view the production of Chowkidar as a witness to prove the theft of motorcycle was necessary which the petitioner-factory has failed to do so inspite of the request of respondent No.2. Had the Chowkidar been produced he might have deposed against the petitioner-factory. Neither any question nor suggestion was put in the cross-examination that motorcycle has been stolen by respondent No.2. In his statement respondent No.2 has stated that he requested the Inquiry Officer to summon Gateman and Watchman to determine his guilt. The inquiry officer did not summon the said persons and stated that they would be summoned if necessary. Had they been summoned, they might have deposed against the petitioner-factory.

9. The petitioner-factory also produced Nasir Hussain Bokhari, Senior Law Officer of the petitioner as R.W-1 who deposed that he was an Inquiry Officer in the Inquiry conducted against respondent No.2. He admitted in his cross-examination that no list of witnesses was provided to him by the Administration. He further admitted that Muhammad Yaqoob Security Officer pleaded the case against respondent No.2 before him. He further admitted that above-named Security Officer was not appointed as a Prosecutor in the inquiry. He further admitted that he has no authority to appoint any person as Prosecutor. He further admitted that cross-examination upon respondent No.2 was conducted by his representative but the signatures of representative are not available on the record. He further admitted that he did not remember that he himself conducted cross-examination upon respondent No.2. He further admitted that he did not remember that who conducted cross-examination upon respondent No.2 during the inquiry. It has rightly been observed by the learned Labour Court as well as learned Appellate Tribunal that from the cross-examination conducted upon R.W.1 it appears that the inquiry was neither just nor fair and the Inquiry Officer has performed the duties of Prosecutor as well as of a Judge at the same time which is against the well established principle of law that no judge can be a judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to he done and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party. Reliance in this regard is placed on a case reported as Asif Ali Zardari and another v. The State (PLD 2001 Supreme Court 568).

10. It will not be out of place to mention here that along with respondent No.2 one Imtiaz Ahmad was also given show cause notice dated 06.05.1995 with similar allegations which were leveled against respondent No.2 but said Imtiaz Ahmad was exonerated by the Inquiry Officer from the charges, therefore, it is a case of clear discrimination which is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.

11. It is pertinent to mention here that in the criminal case of theft of motorcycle respondent No.2 has been acquitted by the learned Magistrate, therefore, the penalty of dismissal imposed against respondent No.2 is not justiciable. It is a well settled principle of law that all acquittals are honourable acquittals. Reliance in this regard is placed on cases reported as Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695 and Director General Intelligence Bureau, Islamabad v. Muhammad Javed and others (2012 SCMR 165).

12. It will not be out of place to mention here that punishments have been provided in Section 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It will be advantageous to reproduce Standing Order 15(3) of the Ordinance ibid, which is as under:

"

15. Punishments (1).......... .. (2) .. (3) The following acts and omissions shall be treated as misconduct

(a) (b) Theft, fraud, or dishonesty in connection with the employer's business or property; (c) . (d) . It is pertinent to mention here that the allegation against respondent No.2 is regarding theft of motorcycle of one Muhammad Ajmal Khan, however, the said act has no connection with the petitioner/employer's business or property as stated in Clause-b of subsection (3) of Section 15 of the Ordinance ibid, therefore, the dismissal of respondent No.2 is not justiciable. Reliance is placed on a case reported as Dilawar Khan v. M/s Ferozsons Laboratories Ltd. (2005 PLC 214) wherein it has been held that nothing contained in Standing Order 15 of the Ordinance ibid, would indicate that carrying arm by employee in premises of employer amounted to misconduct entailing dismissal from service. Workman thus could not have been dismissed when his act or omission does not fall within the acts or omission listed in Standing Order 15 of the Ordinance ibid.

13. In paragraph No.3 of the show cause notice it is mentioned as under:- "This act on your part is an act subversive of discipline and a theft which constitutes misconduct under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968". It will be advantageous to reproduce Clause-h of Section 15 of the Ordinance ibid which is reproduced herein below:- "Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline". The word "subversive" has not been defined in the Ordinance ibid, therefore, I would like to take meaning of the same from Concise Oxford English Dictionary Eleventh Edition, Revised as under:- "subversive - seeking or intended to subvert an established system or institution" The words "any acts subversive of discipline" contained in Clause "h" of Subsection (3) of Section 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, must be construed ejusdem generis with the preceding words namely, "riotous or disorderly behavior". These words, if read with word "subversive" as given in the Concise Oxford English Dictionary Eleventh Edition, subversive means "disturbance of peace and lawless behavior," respectively, therefore, words "any acts subversive of discipline" must be construed in that context and word "subversive" cannot be read separately from the earlier words "riotous for disorderly behavior". Reference may be made to case law titled as "Pakistan International Airlines Corporation Karachi v. Junior Labour Court No.IV, Karachi and others" (PLD 1978 Supreme Court 239).

14. In the show cause notice dated 06.05.1995 issued to respondent No.2, it has been stated that "this act on your part is an act subversive of discipline and a theft which constitutes misconduct under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, although without there being any reference of Clause "h" of Subsection (3) of Section 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, however, it appears that above underlined words have been added with mala fide intention just to punish respondent No.2 otherwise the allegation of theft of motorcycle in any way cannot be said to be an act of subversive of discipline.

15. The learned Labour Court has full and complete powers to enter even into questions of fact and to arrive at its own conclusions. Reliance in this regard is placed on a case reported as Crescent Jute Products Limited, Jaranwala v. Muhammad Yaqub and others (PLD 1978 SC 207).

16. The findings of learned Punjab Labour Court as well as learned Labour Appellate Tribunal are concurrent, therefore, do not require any interference by this Court. This Court while exercising its constitutional jurisdiction is meant only for correction of jurisdictional error and material irregularities and in absence thereof, the concurrent findings of facts cannot be interfered. In this case the impugned judgments have been passed by the learned Punjab Labour Court and the learned Labour Appellate Tribunal having jurisdiction and they have exercised their jurisdiction in accordance with law. They have not acted illegally while exercising their jurisdiction. Constitutional jurisdiction cannot be exercised to re-appraise the evidence. It can also not be exercised even if a different conclusion is possible. This Court while exercising constitutional jurisdiction cannot sit over the judgments of learned Punjab Labour Court as well as learned Labour Appellate Tribunal as a Court of appeal. Reliance in this regard is placed on a case reported as Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others (1980 SCMR 933). The relevant portion of the said judgment is reproduced as under:- "We agree with the view taken by the High Court that it could not in its limited constitutional jurisdiction interfere with the concurrent findings against the petitioners on what was essentially a question of fact."

17. Learned counsel for petitioner-factory has failed to point out any illegality and jurisdictional defect in the judgments of learned Punjab Labour Court and the learned Labour Appellate Tribunal which can be interfered by this Court in its constitutional jurisdiction.

18. Sequel to the above, this petition being devoid of any merits is hereby dismissed by upholding the judgment dated 14.04.2015 passed by the learned Punjab Labour Court No.2 and the judgment dated 22.06.2016 passed by the learned Punjab Labour Appellate Tribunal, Lahore/ respondent No.1. No order as to costs. ZC/P-7/L Petition dismissed.