SALMAN HAMID, J.--- Through this petition, decision dated 5-11-2011, (Impugned Decision), delivered by the Sindh Labour Appellate Tribunal Karachi, (the Tribunal), has been challenged, whereby the Order dated 30-4-2008, passed by the Sindh Labour Court No,V, Karachi, (Labour Court) was maintained, by which the petitioners were directed to reinstate the respondent No,2 in service with all back-benefits effective 16-7-2003 within a month from the date of passing of the Order by the Labour Court. However, the petitioners were left to conduct fresh inquiry against the respondent No,2 with regard to the alleged incident of pasting of posters against the management but after issuing charge sheet under West Pakistan Industrial Employment (Standing Order) Ordinance, 1968, (Standing Order, 1968).
2. The background of the case, in a nutshell, as gathered from the bulk of the record was that the respondent No,2 was employed with the petitioners as an Assistant in their Manpower Control Department, Personnel Division. Allegation against him (respondent No,2), was that on 19-5-2003 he, along with 5 to 6 other persons entered Habib Bank Plaza, (Plaza) and pasted highly provocative and scandalous posters on the notice board of the lobby and on all other floors of the Plaza, including adjacent mercantile branch to the Plaza thereby the senior officers/executives of the petitioners were maligned. It was also alleged that the guards on duty were warned of dire consequences if the posters are removed, pasted on behalf of Sindh Baloch Unity of HBL. The respondent No,2 was therefore issued statement of allegations and charges dated 24-5-2003 which was sent on his available home and work addresses. The petitioners, upon refusal of acceptance of statement of allegations and charges by the respondent No,2 commenced domestic inquiry. Inquiry notice dated 31-5-2003, was sent on the two addresses, (home and work) of the respondent No,2 for his appearance on 4-6-2003. It returned undelivered with the remarks "refuse[d] to receive the same". Second Inquiry Notice dated 5-6-2003 on his two addresses for his appearance on 16-6-2003 before the inquiry committee sent. This too was not received by endorsing, "Refused to receive the same letter". Yet another opportunity was given to the respondent No,2. Final Inquiry Notice dated 18-6-2011 was sent on his (respondent No,2)'s addresses for 27-6-2003. This notice also met the same fate. Inquiry was conducted ex parte. Report dated 2$-6-2003 was submitted according to which, "looking into the gravity of misconduct and its consequences, the Inquiry Committee recommended removal from service" of respondent No,2.
Show-cause notice dated 1-7-2003 on the addresses of the respondent No,2 issued which returned with the same remarks i,e, refused. Consequently, Order of dismissal dated 16-7-2003 was sent.
3. Aggrieved by the dismissal Order dated 16-7-2003, the respondent No,2 filed petition for restoration of his service before the President of petitioners on or about 28-7-2003, which was dismissed on 1-10-2003. Appeal No,842 of 2003 was filed before the Federal Services Tribunal, (FST) for reinstatement. While the Appeal was still pending before FST, Mubeen-us-Salam's case (PLD 2006 SC 602) came in. Appeal before the FST therefore abated and the respondent No,2 took up proceeding before the Labour Court within 90 days from 27-6-2006. Application No,1470 of 2006 under section 46 of the Industrial Relations Ordinance, 2002, (2002 Ordinance) was filed by the respondent No,2 on or about 13-9-2006 by which application, Order of dismissal dated 16-7-2003 was challenged. Objections to the application were preferred by the petitioned, wherein, amongst others, question of limitation was raised. It was also mentioned that no grievance notice was served on the petitioners. Allegations of victimization were also refuted. The procedure followed by the Labour Court in deciding the application was also challenged. It was asserted that such was in violation of standing instructions of Sindh Labour Appellate Tribunal. However, on 30-4-2008 the Labour Court decided the application in favour of the respondent No,2, reinstating him in service with all back-benefits. Appeal No,KAR1393 of 2010, (L.A. No,26 of 2008) was filed by the petitioners before the Tribunal which passed the Impugned Decision, upholding the Order of the Labour Court.
4. The grounds those were urged by the learned counsel for the petitioners for success of the petition, amongst others, were that both the courts below erred in not appreciating that the respondent No,2 was dismissed from service on 16-7-2003, whereas the application before the Labour Court was filed on 15-9-2006 and, therefore, firstly it was without notice and secondly clearly time barred. It was then contended that the two courts below also did not appreciate the fact that the respondent No,2 deliberately refused to receive the service of the statement of allegations and charges; so also the three inquiry notices sent and therefore under the circumstances it was not open to the two courts below to have come to the conclusion that reasonable opportunity was not afforded to the respondent No,2 to defend himself and such findings were in deviation to the law settled by the High and the Supreme Courts. Next it was argued that the two courts below also failed to consider and appreciate that after completion of inquiry, second show-cause notice was given to explain his conduct and again the respondent No,2 refused to receive it. The learned counsel also implored that the two courts below also erred in not appreciating that the respondent No,2 was guilty of display of posters and that he also gave threats to the guards on duty if the posters are removed which fact, according to the learned counsel for the petitioners was also admitted by the respondent No,2 in his evidence/cross- examination. It was also argued that the Tribunal failed to appreciate that the Labour Court did not frame issues hence entire proceeding before it, (Labour. Court) vitiated and therefore the evidence that was led was of no consequence which even otherwise was obtained in deviation to the usual practice. It was also asserted that the two courts below did not consider the fact that no where respondent No,2 alleged or claimed that his dismissal was in connection with an industrial dispute or that the same led to any industrial dispute. Therefore, it Was asserted that the very application before the Labour Court was not maintainable. It was also strenuously argued that neither before the FST nor before the Labour Court nor before the Tribunal it was alleged, even by passing, that the respondent No,2 was not engaged in any other gainful pursuit or was jobless. Under the circumstances back-benefits could have not been claimed by the respondent No,2 and/or could have not been granted by the two courts below. It was also argued that the Labour Court as well as the Tribunal failed to take into account the fact that admittedly proceedings were initiated by respondent No,2 before the Labour Court under IRO, 2002 so also the Appeal before the Tribunal and such law specifically provides that if the Labour Court comes to the conclusion that the dismissal was illegal there was nothing to prevent to grant compensation in terms of section 48(3)
IRO, 2002 without back benefits in lieu of reinstatement to eliminate the possibility of further proceedings and that such principle has been consistently followed by the apex court. A bulk of case-law was rolled upon and cited by the learned counsel for the petitioner to assert and fortify all his above arguments.
5. Learned counsel for respondent No,2 hit on the very maintainability of the petition by asserting that the same was filed by incompetent and unauthorized persons without lawful authority. It was also asserted that all other objections raised by the petitioners in the petition were thoroughly examined by the two courts below after which they gave their verdicts and the petitioners have failed to point out any illegality, or misreading or non-reading of evidence. It was also mentioned that the orders passed by the two courts below were speaking and reasoned within the meaning of section 24-A of General Clauses Act, 1897 and require no interference, particularly in a constitutional jurisdiction. It was then argued that concurrent findings, particularly when the same were correct both on legal and factual plain, should not be interfered with. Allegation of non- framing of issues by the Labour Court was denied. It was pointed out that issues are available at page No,5 of Labour Court's Order dated 30-4-2008 which were (1) Whether the grievance application is maintainable? (2) Whether the applicant was dismissed from service illegally? (3)
Whether the applicant is entitled for the relief claimed? It was therefore urged that the petition was not maintainable and liable to be dismissed with costs. Various case-law was cited to assert above points.
6. We have heard lengthy and exhaustive arguments of the learned counsel on either side and have gone through the whole plethora of case-law cited.
7. Since maintainability of the petition goes to the root, we may decide it first. It may be noted that at pages 305 and 307 of the file are available two separate officers' power of attorney. Both of these show that the attorneys mentioned therein were empowered to initiate proceedings before the courts, including the High Courts. Faced with such a situation, learned counsel for the respondent No,2 attempted to argue that such powers being not special power of attorney and/or specifically empowering the officers of the petitioners to file the present proceedings were of no significance. We are not impressed by such an argument inasmuch as upon perusal of the two powers of attorney, it became abundantly clear that such contain the power to file proceedings on behalf of the petitioners. Lacuna attempted to be created does not exist. In such view of the matter, we are not inclined to dismiss the petition merely on hyper-technical ground that the powers of attorney were not specific in relation to filing of the present petition.
8. This brings us to the various grounds raised by the learned counsel for the petitioners, in challenging the Impugned Decision as well as the Order, passed by the Labour Court. The Labour Court and the Tribunal found in favour of the respondent No,2 by coming to the conclusion that the very initiation of proceedings for dismissal of respondent No,2 were without jurisdiction inasmuch as according to them, such were initiated in terms of the provisions of the erstwhile Removal from Service (Special Powers) Ordinance, 2000, (2000 Ordinance), which were not applicable to the petitioners. It may be noted that the petitioners were nationalized on 1-1-1974 and remained as such up to November, 2004 when it was privatized. It is an admitted position that the respondent No,2 was first attempted to be served with the statement of allegations and charges in respect of incident of 19-5-2003 on or about 24-5-2003 and thereafter domestic inquiry commenced and in such respect first inquiry notice was sent to the respondent No,2 on or about 31-5-2003 for his appearance on 4-6-2003 and upon its refusal, second inquiry notice dated 5-6-2003 was sent for his appearance on 16-3-2003 which again was refused by the respondent No,2. Thereafter the respondent No,2 was sent the final inquiry notice dated 18-6-2003 for his appearance before the inquiry committee on 27-6-2003 which too was refused by the respondent No,2. Therefore inquiry was conducted exparte and report dated 28-6-2003 was submitted whereby inquiry committee recommended removal from service of respondent No,2 looking into the gravity of misconduct.
Above dates clearly show that till such time the inquiry committee recommended removal of service of respondent No,2 on 16-7-2003, the petitioners were not a private bank and in such state of the matter, proceedings initiated under provisions of 2000 Ordinance were competent and with jurisdiction. At this stage of time we may note that prior to the repeal of 2000 Ordinance on 6-3- 2010, it was applicable to persons belonging to the government service and corporation service inasmuch as preamble of 2000 Ordinance spoke of providing for dismissal, removal, compulsory retirement from service and reduction to lower post or pay- scale or certain persons from government service and corporation service. Section 2(c) defines, "persons in corporation service" every person in the employment of a corporation, corporate body, authority, statutory body or other organizations or institutions set up, established, owned, managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein, therefore by virtue of such meaning, the provisions of 2000 Ordinance on the date of initiation of proceedings for misconduct and on the date of dismissal of respondent No,2 were applicable. The petitioners regained such status on dr after November, 2004, the proceedings under 2000 Ordinance were wholly justified and with jurisdiction. Therefore, the Labour Court holding that the proceedings initiated under the provisions of 2000 Ordinance were without jurisdiction and the Tribunal upholding the same were wholly unjustified and without any legal basis.
9. As far as service of the inquiry proceedings on respondent No,2 is concerned, it may be observed which is patently clear from the record, that despite various attempts to have the respondent No,2 served both on his work and residential addresses, he deliberately avoided and/or refused to receive the notice of the same. Overwhelming evidence was available against the respondent No,2 from the side of the petitioners that he (respondent No,2) avoided service and refused to accept the notices, sent. It is also a matter of record that all the subsequent proceedings ^taken up by the respondent No,2 after his dismissal from petitioners' employment on 16-7-2003, the respondent No,2 mentioned same residential address as was available on the envelops and registered post acknowledgement due slips sent by the petitioners. In the case of Col. (Retd.) Sadiq Hassan Sheikh v. Lt. Col. Farooq Ahmad (1987 SCM R 1887), the apex court held that where proceedings are adjourned on three occasions but no attempt was made to participate in the same, presumption would be that the person concerned was not interested. Learned counsel for the petitioners also brought on record a decision of the judge of the Tribunal, who also passed the Impugned Decision and mentioned that the same judge in the case of Bashir Ahmed v. ABL (Appeal No,536 of 2010) referred to section 27 of the General Clauses Act, and came to the conclusion that if correct address appears on the envelope, it is deemed that the letter had been posted and served on the addressee. Looking at this state of affairs and the dicta laid down by the apex court, it is clear that the respondent No,2 for ulterior motives and to prolong the proceedings did not participate in the inquiry proceedings. Therefore findings of the two courts below that the respondent No,2 was proceeded against ex parte, in view of the above narrative was not sustainable more particularly when nothing in rebuttal came forth from the side of the respondent No,2's counsel in such regard.
10. The next contention of the learned counsel for the petitioners was not only that the respondent No,2 in his cross-examination admitted pasting of posters but the newspaper clipping appeared in the daily Kawish Sindhi of 9-6-2003, attributing such incident with him (respondent No,2) was not either denied, disputed or refuted. This non-action and inaction on the part of respondent No,2 was also admitted by him. In such view of the matter no inquiry into the allegation of misconduct was necessary. To support his contention, the learned counsel for the petitioners relied upon the case of Brig. (R) Sakhi Marjan, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others (2009 SCM R 708) and asserted that even if it is presumed that ' proceedings initiated by the petitioners under 2000 Ordinance were without jurisdiction but when the respondent Nb.2 approached Labour Court for his reinstatement after his dismissal from service on 16-7-2003 and he having admitted in his cross-examination that, "It is correct to suggest that I have pasted the posters", in view of apex court's above decision was enough for removal of the respondent No,2 from petitioners, employment. It having come on record through the respondent No,2's cross-examination that he pasted posters, his misconduct constituted. Reference may be made to the cases of Abdul Rashid Qureshi v. The Industrial Court of West Pakistan (1967 PLC 525), Shaukat and others v. Allied Bank of Pakistan (2007 SCM R 198=2007 PLC 555), Muhammad Attique Warsi v. The Managing Director Kakakhail Industries and others (1987 PLC 787) Muhammad Abdul Majid v. Government of Punjab (1972 PLC 83 [C.S.T.]) and The Province of East Pakistan v. Muhammad Sajjad Ali Mazumdar (1962 PLC 528) wherein it was held that when the probity of superior officer of a company is attacked it constitutes grave accusation and such conduct is looked at and calculated to be disruptive of discipline and dismissal on account of misconduct was justified. In addition to above reported cases/precedents, learned counsel for the petitioners also relied upon unreported judgment of the apex court, delivered in Civil Appeal No,579 of 2000 Muhammad Younus v. Crescent Pak Industries, where it was held by the Supreme Court of Pakistan that if an employee of an industry indulge even in wall chalking against the management, it was a fit case for departmental action and as result he can even be dismissed from service. From the above citations it may be gathered that show- cause notice or inquiry proceedings and inquiry report are not requirement of law. Despite this position at law, the respondent No,2 was provided opportunity with second show-cause notice - along with copy of inquiry report, but to no avail.
11. Since the two courts below erroneously and without having regard to the settled principles of law, regarding grant of back benefits, granted the same to the respondents, we feel appropriate to observe that when question for determination of back-benefits arise, assorted facts and circumstances are to be considered and that too judiciously; not mechanically. Factors which may require attention may roughly be that the employee has to establish through evidence that he remained unemployed from the date of dismissal from service and was not otherwise engaged in any gainful pursuit; the kind of efforts made by the employee concerned to minimize his loss; the conduct of employee concerned to wilfully and deliberately prolonging the proceedings with mala fide intentions only to obtain back-benefits are also to be looked into. Another aspect may be public interest and that labor proceedings should be dealt with summarily. Reliance may be placed on the case of Muhammad Noorul Amin v. The Authority under the Payment of Wages Act (1991 PLC 758). Moreover if the proceedings are delayed the employer should not be burdened for the delay with back benefits, as the principle of actus curiae neminem gravabit i,e, no party shall be prejudice for the acts of the court and that if the matter is old no back benefit be granted.
Reliance is placed on Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi (2009 SCM R 605) and Agha Nisar Ahmed and others v. Zeal Pak Cement Factory Ltd. (2009 PLC 335). The court also should look into the fact of source of livelihood or survival of an employee during pendency of court proceeding and such be established by the employee to claim back benefits like taking of loans, unpaid house rents, non-payment of school fees, non payment of utility bills etc. And that such be proved and established by the employee. It would be seen from the record of the file that all above factors or any one of them was not available and such were not even pleaded before any of the three courts. Looking at all these factors, supported by the case-law, it has become abundantly clear that the respondent No,2 was not entitled to back-benefits.
12. It may be noted that the Tribunal seriously erred in concluding that the respondent No,2 was not properly and/or appropriately served with the statement of allegations inasmuch as that though the postal receipts and return envelops of respondent No,2' s residential address had been produced with the remarks, "refused" there was no evidence available regarding service on respondent No,2 on his available work address. The Tribunal erroneously came to the conclusion that only evidence of one Mr. Khalid Bin Sami was not enough to conclude that the respondent No,2 was served on his work address as well. A bare perusal of the cross-examination of Mr. Khalid Bin Sami would show that he categorically stated that he was the in-charge of the concerned department and therefore he was bound to deliver the letters/statement of allegations to the employees (in the present case respondent No,2), who was under his control and that on 27-5- 2003 he (Mr. Khalid Bin Sami) offered the above document to the respondent No,2 who refused to receive the same. In the cross-examination, and quite categorically such fact was mentioned and even the time of offering of the above document and its refusal by respondent No,2 was specifically mentioned. The cross-examination would further show that despite such specifics of offering of the document and its refusal by respondent No,2, nothing was available in cross- examination rebutting such a position. Nothing was raised in cross-examination that the service on respondent No,2 was not good and/or there was no suggestion to the effect that the witness was biased one sided. The Tribunal without discussing as to how and under what circumstances the evidence of Khalid Bin Sami was not trustworthy discredit the same. The provisions of Article 71 of the Qanun-e-Shahadat Order, 1984 having been fully complied with'evidence of Khalid could not have been regarded disregarded merely by observing that it has no evidentiary value and the same was not cogent evidence. The Tribunal also erred in observing that as there was no witness who may say that Khalid Bin Sami tried to deliver the statement of allegation/inquiry notice to respondent No,2 had no evidentiary value. If such procedure is followed, there shall be no end to the evidence being led by a witness and for each witness, succeeding witness shall be required to prove the testimony of the previous witness and the cycle goes on with the result that the provisions of Article 71 of Qanun-eShahadat Order, 1984 shall become redundant. The observation made by the Tribunal regarding non-appreciation of evidence of Khalid Bin Sami regarding service of statement of allegations/inquiry notice on respondent No,2, therefore, does not hold the ground.
Coming to the other observation of the Tribunal that the petitioners have committed various illegalities in issuance of statement of allegations, its service, inquiry notice, its service and issuance of show-cause notice and its service along with service of inquiry report and proceedings and that there was no evidence that the respondent No,2 had violated any particular law and committed any criminal offence and that the petitioner had failed to make out a case of misconduct against respondent No,2 was also erroneous inasmuch as that it has already come on record and quite clearly that the respondent No,2 himself admitted of pasting posters containing outrageous and slanderous remarks against the officers of the petitioners. Moreover, in terms of relevant provisions of the RSO, it is not required that the employee should be supplied with the copies of inquiry proceedings or report but it merely require that a show-cause notice be given without any documents. However, in the present case it has come ' on record that along with the show-cause notice Enquiry Report had been provided to respondent No,2 as available at page 175 of the file. Again the Tribunal incorrectly came to the conclusion that the requirement of the provisions of RSO had not been complied with when it is tested with the available record of the case. In this view of the matter, we have no option but to conclude that the decision has no legs to stand on and is liable to be set aside and that the very grievance petition of the respondent No,2 before the Labour Court also had no merits and the same was also liable to be dismissed.
13. Since the counsel for the petitioner after concluding his arguments on 4-10-2011 had made two offers; one of payment of compensation in lieu of reinstatement without back-benefits and other that the respondent No,2 may agree to treat his dismissal as retirement with payment of his all dues and pensionary benefits and the fact that the payment of compensation will only arise when it is found that the dismissal order was illegal, which is not the case here the question of such payment does not arise. However, the second offer of the petitioner is more beneficial to the respondent No,2 and therefore we treat the dismissal of respondent No,2 as retirement and payment of his dues and other pensioner benefits in accordance with the Rules. Petition is disposed of in such terms.