1992PLC293 (PLP)

Date of hearing: 29th April, 1991. This Constitutional petition fijed by the employer/Habib Bank Limited is directed against the order dated 10-12-1988 of the Punjab Labour Appellate Tribunal whereby he allowed the appeal of the respondent Siddique Akbar and setting aisde the impugned decision of the Labour Court ordered his reinstatement though without back benefits. Siddique Akbar respondent herein has also filed Writ Petition No. 1114/89 to assail the validity of the impugned order of the appellate Tribunal to the extent that it disallowed back benefits to him. Both the writ petitions are being disposed of by this order.

2. Facts necessary for the disposal of these petitions, briefly stated, are that the respondent Siddique Akbar was employed as a messenger/N.C.S. with the petitioner-Bank. He was later promoted as cashier for which post the minimum qualification prescribed was Matriculation. Respondent had allegedly submitted a, photocopy of his Matriculation Certificate which the management of the Bank sent to the Board of Intermediate and Secondary Education concerned for verification. The Board informed the petitioner-Bank that the certificate in question was not genuine whereupon the Bank Authorities issued a notice dated 9-6-1987 to the respondent intimating him that the copy of the Educational Certificate submitted by him was sent to the Board of Intermediate and Secondary Education, Peshawar for verification and the Board declared the Certificate as bogus "as it does not exist on the Board record against Roll No. 25215 in the Session (Annual) 1981". Respondent was accordingly called upon to show cause as to why his services be not terminated for submitting a bogus Matriculation Certificate. Respondent in reply requested for an attested copy of the complaint against him. He was informed vide letter dated 20-6-1987 that the notice was issued to him not on the basis of any complaint but after routine verification of his educational certificate. Respondent then asked for the source of verification. He was told vide letter dated 17-8-1987 that his certificate was sent for verification to the Board of Intermediate and Secondary Education, Peshawar. This information was in fact contained in the notice dated 9-6-1987. Be that as it may, the respondent was once more asked to submit his reply within 3 days, failing which he shall be proceeded against in the matter. The respondent then finally took the position in his letter (Annexure `N') addressed to the Executive Vice-President of the petitioner- Bank that since copy of the complaint and the source of information were not supplied to him, he was unable to submit the reply to the notice/charge-sheet. On receipt of this letter, the petitioner-Bank proceeded to terminate the services of the respondent vide letter dated 30-8-1987 (Annexure `O').

3. Respondent challenged his termination before the Labour Court in a grievance petition filed under section 25-A of the Industrial Relations Ordinance mainly on the ground that he was neither served with the charge?sheet nor was any enquiry held against him. The grievance petition was contested by the petitioner-Bank on the premises that the respondent was duly informed of the allegation against him but he failed to submit any explanation for his misconduct.

4. Labour Court after recording the evidence of the parties found that the respondent was admittedly issued a notice Exh. Pl by the Management of the Bank but he instead of replying to the notice and the points raised therein sought source of information with a view to side track the issue. It was held by the Labour Court that since the petitioner did not disown or deny having submitted the. photocopy of Matriculation Certificate at the time of his promotion which Certificate was found to be bogus, there was no need for charge-sheeting him or holding an enquiry. The grievance petition of the respondent was thus dismissed by the Labour Court vides order-dated 10-10-1988.

5. Respondent preferred an appeal before the Labour Appellate Tribunal. The learned Tribunal took the view that merely because the respondent gave no reply to the charge-sheet denying the allegation of producing the fake Matriculation Certificate did not mean that he had admitted the allegation against him. In this view of the matter, learned Tribunal held that holding of enquiry was essential in the facts and, circumstances of the case. According to the Tribunal, "the officer before whom the Matriculation Certificate is alleged to have been produced by the appellant could be very easily examined by holding an enquiry". Confronted with this position, learned counsel for the petitioner-Bank, it appears, made a request before the Appellate Tribunal that they be permitted to hold an enquiry against the respondent. Learned Tribunal rejected this prayer with the observation that no cogent reason was put forward for granting such permission. The Tribunal further observed it that "in cases of embezzlement and misappropriation of money or articles it may be regarded proper to permit enquiry but there is no such allegation against the appellant". With these findings/observations, the learned Tribunal accepted the appeal of the respondent and directed that he be reinstated in service. Back benefits were, however, not allowed to the respondent "in order to promote good relations between the parties", though it was observed by the Tribunal that the respondent was entitled thereto as his statement that he had remained jobless ever since his removal was not rebutted by the employer. This order of the learned Tribunal as stated above, was brought under challenge both by the petitioner Bank and the respondent employee in two separate Constitutional petitions.

6. Writ petition filed by the Bank was admitted to regular hearing to examine two-fold contention of the petitioner viz. whether in the facts and circumstances of the case particularly non-denial of the charge by respondent No. 1 amounted to his admission thereof and, therefore, it was not necessary to hold an inquiry and secondly whether the Labour Appellate Tribunal when requested should have allowed the petitioner to hold an inquiry.

7. I have heard the learned counsel for the parties. Learned counsel for the petitioner has confined his submissions only to the second issue namely refusal of the Labour Appellate Tribunal to grant permission to the petitioner, to hold the inquiry against the respondent. Learned counsel has assailed the reasoning of the Appellate Tribunal for disallowing the petitioner's request for permission to hold the inquiry. Submission of the learned counsel is that the petitioner had cogent reason for not holding the inquiry. Since the respondent-employee did not categorically deny the allegation levelled against him, the petitioner had reason to believe that he admitted, his guilt and it was, therefore, not necessary to hold any inquiry. Learned counsel has also submitted that there was no valid basis for the observation that the permission for holding inquiry should be given only in the cases of embezzlement and misappropriation of money or articles. Learned counsel has contended that the appellate Tribunal having taken the view that the holding of an inquiry was essential in the present case should have allowed the petitioner to hold the inquiry particularly when a request in that behalf was made by the petitioner. Submissions made by the learned counsel appear to have considerable force. Law is fairly well-settled that if an order of termination/dismissal is set aside on a technical ground such as want of a proper inquiry or owing to some defect therein, the employer should be allowed an option to hold a proper inquiry against the workman concerned. Refer Steel Corporation of Pakistan Ltd. v. Sherzamin and others (1968 SCMR 355) wherein it was held that if the industrial Court finds fault with the enquiry or the procedure thereof, its duty would be, while refusing permission to dismiss, to indicate where the fault or error lay, which vitiated the enquiry. It was further observed "In these cases, the holding of the domestic enquiry ex parte, was apparently unjustified and. in refusing permission to dismiss, the industrial Court should have directed that the enquiry be held afresh after due opportunity to appear and defend had been given to the respondents".

8. Learned counsel appearing for the respondent has quite frankly submitted that he has no objection to the holding of an enquiry against client. He has, however, prayed that since the respondent has not so far submitted a proper reply to the charge-sheet, petitioner-Bank may be directed to allow him an opportunity for that purpose. The request is quite reasonable. Petitioner shall allow such an opportunity to the respondent before proceeding further in the matter.

9. In the aforesaid view of the matter, Writ Petition No. 260 of 1989 (filed by the Bank Officers) is accepted to the extent that the petitioner/employer is permitted to hold an enquiry against the respondent/employee. It is, however, directed that before proceeding further in the matter, petitioner shall allow an opportunity to the respondent to submit reply to the charge-sheet. It is further directed that the enquiry shall be completed/finalised expeditiously and if possible within a period If three' months. As regards Writ Petition No. 1114 of 1989 (filed by the respondent?/employee), suffice it to observe that since the employer has been allowed to hold enquiry against the respondent, payment of back benefits shall depend upon the result of the enquiry. Both the writ petitions are thus disposed of with the aforementioned observations. There will be no order as to costs. ??????????? H.B.T./P-9/L ?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.