MUJAHID MUSTAQEEM AHMED, J.--- The pithy facts, for adjudication of this writ petition, are that in August 2008, Khalid Mahmood-petitioner was working as a Senior Cashier in MCB, Chinji Branch of Chakwal Region. He was charge sheeted by the respondent bank for embezzlement of Rs,10,75,000/- from the main cash safe on 13.08.2008, leaving keys of cash safe as well as strong- room door in his table drawer and on next working days (14th August being public holiday) i,e, 15.08.2008 and 16.08.2008, he absented himself from duty (purportedly on medical ground). Exh.P4 charge sheet was served upon him and he submitted reply of the charge sheet Exh. P5 and denied it. Vide letter of inquiry Exh.P6, General Manager Bank appointed Mr. Shafqat Ali Kiani AVP Manager B/0 Pirvadhai Rawalpindi as inquiry officer. Vide inquiry report dated 24.11.2008 Exh.R2, the charges against the petitioner were proved and consequently vide letter of dismissal dated 22.12.2008 Exh.P7, issued by General Manager of Bank, he was dismissed from service. He filed a grievance petition before the learned Presiding Officer, Punjab Labour Court, Rawalpindi, who after full trial allowed it, directing the respondent-bank to reinstate the petitioner within two months and also to pay him 50% back benefits. The respondent-bank filed an appeal before the learned Punjab Labour Appellate Tribunal, Camp at Rawalpindi, which vide impugned judgment dated 21.02.2012, was allowed, judgment of learned Presiding Officer, Punjab Labour Court was set aside, the grievance petition of the present petitioner was dismissed and dismissal order from service passed by the Bank was upheld.
2. The petitioner, feeling aggrieved by this judgment of learned Punjab Appellate Tribunal, Camp at Rawalpindi, has assailed the same through the instant writ petition mainly on the grounds that the impugned judgment is against the facts and law, the respondent-bank failed to prove the charges of embezzlement of Rs,10,75,000/-, no criminal case was lodged against the petitioner because cash was not short on 13.08.2008 as per entries in Cash Book the inquiry proceedings were partial and not conducted in accordance with law and the right of cross-examination on PWs/departmental witnesses was not provided to the petitioner.
3. Learned counsel for the petitioner, during the course of arguments, has reiterated above taken grounds and prayed for setting aside the impugned judgment passed by the learned Labour Appellate Tribunal. Whereas learned counsel appearing on behalf of respondent No,2-Bank and Bank Officers has supported the impugned judgment, maintaining the same is based on correct appreciation of the evidence available on record. The petitioner was afforded full opportunity of hearing during inquiry proceedings and he could not raise or establish any mala fide on the part of the bank officers for his false implication in the inquiry and inquiry proceedings. It has further been added that father and maternal uncle of the petitioner on the very date of detection of embezzlement i,e, 15.08.2008, deposited the embezzled amount Rs,10,75,000/- with the undertaking from the bank not to report the occurrence to the police, so the Bank has neither lodged any criminal case against the present petitioner nor shown the shortage of cash or subsequent replenishment of cash in the Bank record, as monitory loss to the Bank has been made up. Reliance has been placed on celebrated precedents (1) (2007 SCMR 198 Supreme Court of Pakistan), "Shaukat Ali and others v. Allied Bank of Pakistan Ltd. and others", (2) (2008 SCMR 909 Supreme Court of Pakistan) "Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. and others" and (3)
(2008 SCMR 899 Supreme Court of Pakistan) "Nazir Ahmad Pathan and another v. Muslim Commercial Bank Ltd. and others", to maintain that replenishment of embezzled amount will not constitute mitigating circumstance in favour of the employee to allow him reinstatement in service of bank. Referring the illuminating precedents cited at Sr.Nos,1 and 3 Supra, it has been maintained that when charge of misappropriation/embezzlement levelled against a workman is proved then question of quantum of punishment rests with employer and neither the learned labour court nor the appellate court has the jurisdiction in the matter unless the sentence awarded is found to be either one which is not provided or warranted by law or which appears to be excessive or harsh or totally disproportionate to the guilt, which no prudent man would have awarded in the circumstances of that particular case.
4. With the assistance of learned counsel for the parties, I have perused bulky record and the impugned judgment.
5. Before examining the legality of the impugned judgment, I have gone through the inquiry proceedings Exh.R1 and inquiry report Exh.R-2 conducted by RW-2, Shafqat Ali Raja, Ex-AVP of the bank (who proved inquiry proceedings Exh.R-1 and inquiry report). The learned counsel for the parties have frankly conceded that during the inquiry proceedings conducted by RW-2, after introduction of bank case by departmental representative Iftikhar Mujahid AVP, statement of Abdul Hakeem Manager of Chingi branch, boss of the petitioner and complainant of inquiry, (RW-1 before Punjab Labour Court, Rawalpindi) was recorded by the inquiry officer and thereafter the departmental representative produced Muhammad Farooq, Officer Grade-III, Abul Hassan, Cash Officer, Aamir Saeed Tea Boy and bank guard of the Chingi Branch of bank as witnesses of the department/MCB. None of these witnesses has stated about the charge but made omnibus statement that his earlier statement made before Shabbir Ahmad, Audit Officer, Islamabad be treated as final. Their such written statements/version submitted in absentia of petitioner before the Audit Officer (before A commencement of inquiry) are available on record. The present petitioner was not afforded any opportunity for cross-examining Abdul Hakeem, Bank Manager or rest of the witnesses by Shafqat Ali Kiani, AVP Manager/Inquiry Officer. Whereas, after statement of present petitioner before inquiry officer, the inquiry officer specifically afforded a chance to cross- examine him and of course the departmental representative fully cross-examined him. Thus, the petitioner's counsel is justified to submit that the inquiry officer fully knew that in an inquiry, the opposite party has the right to cross-examine witnesses to test their veracity. Even in letter of inquiry, dated 15th September, 2008 (Exh.P-6), addressed to present petitioner, also endorsed to inquiry officer, fair right of leading evidence and cross-examining the witnesses is mentioned in following clear terms:- "At the inquiry you shall be given full opportunity to put your defence and cross-examine the Management's witness/ witnesses".
Thus, the General Manager of the bank/Authority by the above said letter has rightly informed the inquiry officer to adopt the legal procedure for holding fair, impartial and independent inquiry but the inquiry officer has not bothered to adopt this legal course. Under Qanun-e-Shahadat Order, 1984 and principles of- Qanun-e-Shahadat, right of cross-examination has been acknowledged as a valuable right of the parties to test veracity of the witnesses. In precedent 2013 SCMR 714 Supreme Court of Pakistan "Mian Ghulam Sarwar Samija v. Divisional Superintendent, Pakistan Railways, Multan", in a service matter, statement of complainant made before police tendered in inquiry proceedings was discarded from consideration as it was not subjected to cross- examination and it was held that the same could not be accepted as evidence. In case law 1997 SCMR 1073 Supreme Court of Pakistan 108 'Secretary to Government of N. W. F. P. and 2 others v.
Saifur Rehman' in a service matter it was held that person facing enquiry had right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross-examination and where 4 neither civil servant was associated with enquiry proceedings nor he was allowed opportunity to cross-examine witnesses produced against him, enquiry proceedings and consequential order regarding his dismissal suffered from inherent legal defects. In case law 2001 PLC (C.S.) 296 Lahore High Court 'Muhammad Nawaz Khan v. Multan Development Authority, Multan through Director General and 2 others' it was laid down that where the employee denied all the allegations, it was not the case of having recourse to the shortest procedure of show-cause notice as controversial questions of facts were involved which could not be resolved without recording of evidence and opportunity of cross-examination to civil servant. In case law reported as 2016 SCMR Supreme Court of Pakistan 108 "M. C.B. Bank Limited, Karachi v.
Abdul Waheed Abro and others" worker under inquiry was afforded the opportunity to cross- examining only one witness out of six, so it was held that opportunity of fair trial had not been afforded to the worker by depriving him his right of cross-examining the witnesses as such it could be held that principles and procedures of due process of law and fair trial had not been followed, which is against the principles of natural justice. Such basic right of cross-examination of civil servant under inquiry has been acknowledged in precedents 2012 SCMR 181 Supreme Court of Pakistan 'Pakistan Railways through G.M. and another v. Abdul Fateh and another', 2011 PLC (C.S.)
562 'Riffat Hassan and 9 others v. Federation of Pakistan through Chairman, Federal Board of Revenue/Secretary, Revenue Division and another', 1997 SCMR .1543 Supreme Court of Pakistan '
Basharat Ali v. Director, Excise and Taxation, Lahore and another' , 1993 SCMR 1440 Supreme Court of Pakistan 'Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another', 1996 PLC (C.S.). 868 'Ghulam Muhammad Khan v. Prime Minister of Pakistan and others' and PLD 1994 Supreme Court 222 Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others' . In recent precedent 2014 SCMR 45 Supreme Court of Pakistan 'Malik Umar Aslam v. Mrs. Sumaira Malik and others' it has been laid down that domestic tribunals, like inquiry committees, and departmental committees constituted statutorily by Universities to probe genuiness or otherwise of a degree, were bound by the principles of the Qanun-e-Shahadat Order, 1984.
6. But in the instant case the same has not been afforded to the petitioner/official under inquiry. No doubt, as pointed out by the learned counsel for the contesting respondents, the present petitioner has signed each page of inquiry proceedings and as PW-1, during the cross-examination, conceded that he had full faith on the Inquiry Officer but it does not mean that at any stage he has waived his right of cross-examination. Thus, the inquiry proceedings have not been conducted fairly, justly and in accordance with law by the inquiry officer. The learned counsel for the petitioner has successfully refuted the submissions of learned counsel for the contesting respondents that in grievance petition, the petitioner had not taken any such plea, by maintaining that in Para No,7 of his grievance petition, the petitioner has taken the plea that in the inquiry proceedings, the petitioner was not given chance of personal hearing and the inquiry proceedings were held under inequitable procedure and against the principles of natural justice. In Para No,10 of the grievance petition, petitioner has maintained that before passing the dismissal order, he has not been furnished with a show-cause notice and report of inquiry officer. Thus the learned Presiding officer of Punjab Labour Court in his judgment has rightly concluded that "in conducting the domestic inquiry against the petitioner gross illegality of not permitting the petitioner to cross-examine the witnesses has been committed". In precedent 1973 SCMR 455 Supreme Court of Pakistan 'Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal Lahore and others', it has been laid down that in case of dismissal, a workman should be furnished with the copy of inquiry report against him and should also be given an opportunity to show-cause against order of dismissal and mere fact that workman had a personal audience with the employer is not enough. I have examined the copy of letter of dismissal Exh.P7 and observed that neither inquiry report was supplied to petitioner nor has been afforded right of hearing by the Authority. As such, dismissal order has been passed in violation of principle of audi alteram partem, and the petitioner remained condemned unheard and as such it is not sustainable under the law of land.
7. Under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 every citizen has fundamental right of fair trial and due process for determination of his civil rights and obligations.
In precedent 2016 SCMR 943 Supreme Court of Pakistan "Ishtiaq Ahmed v. Hon'ble Competent Authority through Registrar, Supreme Court of Pakistan" while interpreting right of fair trial it was held that right of fair trial meant grant of a proper hearing to an accused person by an unbiased competent forum and that justice should not only be done but be seen to be done. It was further held that right of fair trial cast an adjudicatory tribunal or forum a duty to treat a person in accordance with law, to grant him a fair hearing, and for itself to be an impartial and a fair tribunal.
8. Under Article 4 of the Constitution, every citizen has the right to be treated in accordance with law. In Ishtiaq Ahmed's case 2016 SCMR 943 Supreme Court of Pakistan, right of due process protected under Article 4 of the Constitution has been defined in the terms that a person shall have notice of proceedings which affected his rights and such person must be given a reasonable opportunity to defend himself and the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess competent jurisdiction.
Whereas, in the instant case, in the inquiry proceedings and F post-inquiry proceedings this right has been trampled, ignored and blatantly refused in callous manner. In precedent PLD 1987 SC 447 "Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal" it has been laid down that under Article 4 of the Constitution, it is the right of every individual to be dealt with in accordance with law and where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out. Thus, the inquiry proceedings and dismissal order under challenge before the courts below on the touchstone of the Constitution of Islamic Republic of Pakistan, 1973 and principles of natural justice, are not sustainable.
9. The Punjab Labour Appellate Tribunal has not noticed the above glaring and crucial infirmities and illegalities in the inquiry proceedings. Moreover at pages Nos,6-7 of judgment, Punjab Labour Appellate Tribunal, heavily relied on an unexhibited letter of AVP of the Bank, while discussing and examining the banking practice and procedure regarding "Adjustment Account, Debit, fraud and forgery and Banking adjustment and Account Credit". Similarly, the Punjab Labour Court laid hand on an exhibited/unproved report of probe prepared by Shabir Ahmad AVP-Team Manager Audit Officer, Islamabad, to dislodge/discard bank's case. Thus, to my view, both the courts have not legally, justly, rightly and correctly appreciated evidence on record.
10. In view of above discussion, this writ petition is allowed and the order passed by the learned Punjab Labour Appellate Tribunal is declared without lawful authority and as such having no legal effect and is set aside, while modifying judgment of learned Presiding Officer, Punjab Labour Court, Rawalpindi dated 13.11.2009, the grievance petition is partly accepted in terms that the inquiry proceedings, inquiry report and order for dismissal from service passed against the petitioner are set aside, leaving for the respondent bank, if so opted, to proceed afresh on the charges levelled against the petitioner.