1995 PLP 436 (PLC)

Javed Altaf, Advocate and Sh. Salahuddin, Advocate‑on‑Record (absent) for Appellants. Ejaz M. Khan, Advocate‑on‑Record for Respondents. Date of hearing: 4th December, 1994. IRSHAD HASAN KHAN, J.‑‑‑This appeal by leave arises out of the judgment dated 3‑7‑1991 passed by a learned Single Judge of the Lahore High Court dismissing the Constitutional petition of the appellant against the judgment dated 13‑6‑1984 passed by the Punjab Labour Appellate Tribunal, Lahore whereby he set aside the decision dated 8‑2‑1984 of the Punjab Labour Court No. 9, Multan, dismissing application field by respondent No. 1 under section 25‑A of the Industrial Relations. Ordinance (No. XXIII of 1969) hereinafter called the Ordinance for his re‑instatement in service.

2. The relevant facts are that respondent No.1 while posted as Cashier of the appellant Bank Branch at Thatta Quraishi, allegedly committed several acts of forgery, fraud and embezzlement' amounting to misconduct. Consequently, respondent No. 1 was charge‑sheeted on ten grounds of misconduct, which were disputed by him through his reply dated 10‑5‑1981. The Inquiry Officer found seven charges proved but not the remaining. The appellant bank dismissed respondent No. 1 on 15‑3‑1981. Respondent No. 1 brought a grievance petition under section 25‑A of the Ordinance before the Punjab Labour Court No. 9, Multan which dismissed the same on 8‑2‑1984. However the Punjab Labour Appellate Tribunal found that none of the charges were established except one, therefore, the dismissal of the respondent was not held sustainable as the possibility that the punishing authority could have imposed a lesser penalty could not be excluded, and ordered his reinstatement without any back benefits. The appellant being aggrieved with the aforesaid order, fled a Constitutional petition which was also dismissed. The learned Single Judge took the view that the Inquiry Officer has since mostly relied on the confession made by respondent No. 1 vide Exhs. R‑5/7, R 5/8 and R‑5/9, but none of the prosecution witnesses deposed before the Labour Court that respondent No. 1 had executed those documents or that they being familiar with his handwriting and signature, could identify the same the order of re‑instatement was valid.

3. Mr. Javed Altaf learned counsel for the appellants argued that even if one charge out of multiple charges of misconduct stood proved on record, as held by the Punjab Labour Appellate Tribunal, it was not lawful for the Tribunal to order reinstatement of respondent No. 1 simply because the other charges levelled against the dismissed employee remained unproved. On the other hand, Mr. Ejaz Muhammad Khan, learned counsel for the respondent argued that the respondent was dismissed from service on the assumption that all the charges of misconduct stood proved against him as per finding of the Inquiry Officer, but one out of the ten charges on the basis of which action had been taken against him was not proved; therefore, the entire order of dismissal stood vitiated.

4. We regret we are not impressed by the submission made by the learned counsel for the respondent. The Punjab Labour Court while adverting to the plea of respondent No. 1 as to the evidentiary value of the aforesaid documents did not feel it necessary to call for the expert evidence in view of the statement of Ghulam Mustafa R.W. 2 with the following observations:‑‑ "The petitioner says that all these documents ate false and forged. The respondents have not proved them through a handwriting expert. In the absence of proof as alleged above, they could not be relied upon. I am sorry to say that the petitioner's version is not plausible. The respondents tendered these documents and duly supported them through the statement of Mr. Ghulam Mustafa. the officer of the hank in Grade II. By their production and support through an eye‑witness the respondents sufficiently discharged the onus of proof. On the face of this proof, it was the duty of the petitioner to refer to them to a handwriting expert or have adopted some other suitable way to rebut them. He did nothing. Strange to say, that he not only led no evidence in his defence with the exception of his statement but even failed to cross‑examine Mr. Ghulam Mustafa about these documents. The misfortune does not end here. The petitioner did not move this Court also regarding the examination of these documents. Mr. Ghulam Mustafa again came against him in this Court and deposed against him and the petitioner went on stating the facts as the only witness in support of his claim. The respondents further produced his confessional statements as Exh. R‑7 and Exh. R‑9 and the petitioner did not retaliate:" We cannot hold that failure to examine the handwriting expert by the Labour Court has vitiated the dismissal order, inasmuch as there is no rule of law that a handwriting expert must be examined in every case. Refer S.M. Zaheer v. Pirzada Syed Fazal Ali Ajmeri (19.74 SCMR 490). Needless to say the Court is entitled to make independent comparison of handwriting apart from opinion of expert as contemplated by Article 84 of the Qanun‑e‑Shahadat Order, 1984. The plea of the respondent has also no merit in view of the provisions of subsection (5) of section 25‑A of the Ordinance wherein it is laid down that "in adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case". See M/s. Crescent Jute Products, Jaranwala v. Muhammad Yaqoob etc. (PLD 1978 SC 207), wherein it was hell that the Labour Court had the jurisdiction to go behind a dismissal order an to see for itself as to whether on the facts and in the circumstances of the concerned case, it was justified or not both on merits as well as on law. Section 25‑A contemplates a double check against the actions of the employer, one in the form of domestic inquiry and the other in the form of judicial determination by the Labour Court itself. Thus visualised, it was open to the Labour Court to form its own assessment of the veracity of the witnesses produced by both the sides and on the basis thereof to pass such order as may be just and proper in the circumstances of the case.

5. We are also unable to agree with the learned Judge of the High Court and the Punjab Labour Appellate Tribunal that since ten charges of misconduct were levelled against respondent No. 1, which led to his dismissal, of which only one was found supportable later, the order of dismissal could be struck down as a whole. The rule generally applicable to detention matters cannot be applied to Labour Cases as held by this Court in Habib Bank Ltd. v. Musaddaq Hussain and 2 others (1993 SCMR 126). Here the Labour Court after going into all the facts of the case recorded a finding that a charge of misconduct stood proved against the respondent but the Labour Appellate Tribunal on a mistaken view of law, set aside the order of dismissal. The learned Judge of the High Court also fell into an error in dismissing the Constitutional petition presumably on the assumption that expert evidence must be called in every case.

6. In view of what has been stated above, the appeal is allowed and the impugned judgment of the High Court and the Punjab Labour Appellate Tribunal are hereby set aside. Parties are left to bear their own costs. AA./M‑2191/S Appeal accepted.