1997 PLP 44 (PLC)

"It is the case of the appellants that neither Ludo board and the playing accessories were seized from the spot nor were they produced before the Enquiry Officer. 'Chat in these days for some reasons the pace of production had been slow down and the workers for most part were idling the time but they had not committed any act subversive of discipline. They were never warned nor had they disobeyed any supervisor, overseer or the management. Thus the domestic inquiry having been held by a professional outsider conducting such enquiries on payment cannot be considered to be a reliable and valid enquiry and a person cannot be deprived of his livelihood on the findings of such Enquiry Officer who found the accused guilty in consideration of cash payment. This practice of engaging professional enquiry conductors on cash payment is highly objectionable and is to be depreciated. If the workers had prolonged the rest and refreshment interval a few minutes longer they could have been warned or reprimanded. It is not alleged that they were habitual idlers. The punishment inflicted on these workers is therefore, too harsh and it is uncalled for. Nor has it been proved that the workers have intentionally committed an act df indiscipline against the management. The management have got to be reasonable while dealing with such cases. When an absence for more than ten days alone could make a worker liable for action as an act of misconduct how can prolonging of the rest interval for five minutes make them liable for similar misconduct and penalty of dismissal. For the reasons discussed above the order of dismissal passed against these workers and confirmed by the Labour Court is set aside and the workers are directed to be reinstated in service within a period of seven days from the date of this order. No order is made for payment of any back benefits for obvious reasons. Appeals are partly allowed accordingly." The appellate judgment shows that the charges against the respondents were not at all proved because, nothing objectionable was recovered from them.. This was a finding of fact arrived at by the competent appellate forum after deeply discussing the evidence of the parties. It is well‑settled that the whole case is reopened at its appellate stage during the hearing of an appeal against it. The A learned Tribunal after assessing the evidence and taking into consideration the salient features ‑of the case, had rightly held that there was no evidence to show that the respondents had committed an act of indiscipline intentionally to justify their dismissal from service, These findings were upheld by the High Court and the writ petition of the petitioner was dismissed stating:‑‑ "Before us, the main contention of Mr. Makhdoom Ali Khan, learned counsel for the petitioners has been that, the order passed by the learned Tribunal was based on misreading of evidence: We do not find much force in the said contention. Apart from the fact that the Tribunal has disapproved holding of domestic inquiry by a professional Inquiry Officer, as was done in the present case, the Tribunal found that the action taken against the said respondents by the petitioners was harsh and not proportionate to the misconduct alleged against them. It was only one incident for which the petitioners had been proceeded against for misconduct and the penalty of dismissal awarded to the said respondents was, therefore, found to be unreasonable. We are of the view that the Tribunal has only acted fairly, keeping in view the nature of the offence allegedly committed by the said respondents. The order of the Tribunal is neither arbitrary nor perverse to invite interference by us under Article 199 of the Constitution. In the result, the petition is dismissed in limine together with the miscellaneous applications." We fully endorse the views expressed by the High Court in its impugned judgment that the order of dismissal passed by the petitioner against the respondents was unreasonable and the Labour Tribunal had acted fairly and justly in accepting their appeal by reinstating them in their service. The Tribunal discarded/disapproved the hiring of services of a professional enquiry officer on cash payment in order to take action against the respondents The High Court also upheld the view of the Tribunal that the result of the enquiry proceedings could not be accepted on the ground that the Enquiry Officer was biased and as such did not hold the enquiry independently. We have been persuaded to hold that the Enquiry Officer, in the given circumstances, acted with prejudice because he had been paid for the services rendered by him. Learned counsel has relied upon an Indian authority reported as Dalmia Dadrl Cement Ltd. v. Shri Murari Lal Bikaneria (AIR 1971 SC 22) in support of the contention that there was nothing wrong with the enquiry proceedings which were conducted by an outsider on payment of fee. The principle laid down in the above case is not attracted to the different facts and circumstances of the case in hand. No case law by the Courts in Pakistan could be cited by the learned counsel in favour of his plea. On the contrary, the approach of the High Court and the Tribunal in settling the controversy was wholly in consonance with the established rules of justice and equity. The judgment in favour of the respondents has already been implemented by the petitioner in letter and spirit. A substantial justice. undoubtedly, has been done in the case. This would, in our view, be unjust and improper to interfere at this stage with this case which had been decided according to law on the basis of evidence. This Court has time and again held that no writ could be issued by the High Court in exercise of its discretionary jurisdiction in aid of injustice. See Tufail Muhammad v. Muhammad Zia Ullah Khan (PLD 1965 SC 269), Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236), Khadim Hussain v. Board of Revenue (1973 SCMR 127), Ghulam Rasul v. Ali Akbar (1974 SCMR 64), Wali Muhammad v. Sakhi Muhammad (PLD 1974 SC 106), Noor Ahmad v. Chief Settlement Commissioner (1975 SCMR 529), Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331), S. Sharif Ahmad Hashmi v. The Chairman, Screening Committee, Lahore and others (1980 SCMR 711), Sardar Muhammad v. Deputy Commissioner, Residual Property‑(1981 SCMR 738), Fateh Muhammad v. A.C. NLR 1981 SCJ 584), Saifullah v. Settlement Commissioner (1982 SCMR 853), Muhammad Sharif v. Zubaida Begum (1983 SCMR 1197), Gul Muhammad v. Additional Settlement Commissioner (1985 ‑SCMR 491), Zamir Ahmad v. Bashir Ahmad (1988 SCMR 516), Muhammad Baran v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691), Market Committee v. Muhammad Sabir (1995 SCMR 305) and Munjri Khan v. Faridoon 1995 SCMR 678). In the first case, it was held:‑ "The writ jurisdiction is not to be exercised in aid of injustice. We have little doubt that Khalil‑ur‑Rehman was putting forward an untrue case before the Settlement Authorities when he claimed the whole house. " In the case of Raunaq Ali, supra it was observed:‑‑ "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. " Similarly, in case of Munjri Khan supra, this Court threw light on the point in the following manner:‑‑ "We are inclined to agree with the learned counsel for the appellants that the High Court in the earlier proceedings having itself remanded the case to the Board of Revenue for decision afresh, was not competent to hold that it had no jurisdiction to do so, in that, that order attained finality, but this by itself would not vitiate the proceedings as the impugned judgment of the High Court is in aid of justice. Clearly, no prejudice has been caused to the appellants on merits of the case. Further, contrary view taken by this Court in the case of Haji Samad Khan and others v: Khalid Khan and others 1985 SCMR 770) is obiter, in that, the decision rendered therein was in relation to the scope of revisional powers reserved in clause (7) of paragraph 25 of the Land Reforms Regulation and rule 7 of the N.W.F.P. Land Reforms (Procedure for Ejectment Suits) Rules, 1975, as has been explained earlier by this Court in the case of Faiz Ahmad (supra). It may also be observed that the object of writ jurisdiction is to foster justice and not to perpetuate an illegality". The remaining case‑law is also to the same effect and as such needs no further illustration. In such a situation, while respectfully reiterating the above‑quoted consistent dictum by this Court, we dismiss this petition. Leave to appeal is, accordingly, refused. A.A./S‑1073/S Leave refused.