JUSTICE (Retd.) CH. MUHAMMAD TARIQ, CHAIRMAN.---This appeal has been directed against the impugned judgment dated 02.05.2015 passed by learned Punjab Labour Court No,2, Lahore.
2. Brief facts of the case as per grievance petition are that Zulfiqar Ali appellant was employed as Store Clerk with the respondent in 1977 but dismissed on 24.8.1983. The matter was taken to the Court where finally Hon'ble High Court vide order dated 17.11.2003 directed the respondent establishment to re-instatement the appellant, however, the respondent was allowed to hold a fresh inquiry through an independent inquiry officer and the question of grant of back benefits was made-dependent upon the result of said inquiry. The appellant was taken on duty in Fair Price Shop of the factory. Syed Nasir Bussain Bukhari was appointed as Inquiry Officer by the respondent vide order dated 17.12.2003. It is maintained that the said Inquiry Officer was not an independent officer as he remained practicing lawyer and junior to the Legal Advisor, Mr. Javid Altaf, Advocate of the respondent factory. He was biased, used to appear in the learned Labour Court as Senior Law Officer of the respondent or as representative/counsel for the respondent. Despite all this the appellant did appear before him who conducted inquiry against all canons of justice and equity. It was alleged that Raja Fayyaz Ahmad, Incliarge Central Store, a witness of the respondent was seen tutoring other witnesses on 9.1.2004 in the office of Deputy Industrial Relations Manger. On 13.1.2004 other witness of the respondent was in the inquiry room with Rana Fayyaz Ahmad, said inquiry, officer was informed that said Rana Fayyaz Ahmad being an officer was influencing the witnesses and that in presence of said officer, the other witnesses be not allowed to sit in the inquiry. An application to that effect was also filed but it was turned down and said officer was allowed to sit in the inquiry. Another application dated 14.1.2004 for summoning the record was disallowed. Said inquiry officer allowed to record the statement of defence witness Muhammad Aslam, in presence of the appellant, as according to the inquiry officer if he respondent want to remain present then the respondent shall get recorded his statement first. Later on he closed the evidence of the appellant and passed the impugned order. In this situation, the respondent served a grievance notice upon the respondent which remained unfruitful with the result that the grievance petition has been filed on the grounds that the inquiry proceedings were partial as already mentioned, the inquiry officer was biased. The allegation against the appellant is concocted one. The employees of the respondent factory formed a trade union with the name of "Packages Mazoor Inqalabi (Paian)
Union". The appellant was elected as its General Secretary. Application for its registration was submitted to the Registrar of Trade Unions, Lahore, on 23.5.1983 and during the pendency of the same the appellant was illegally dismissed in violation of law.
3. The grievance petition was contested by the appellant. The learned Punjab Labour Court No,2, Lahore after recording oral as well as documentary evidence of the parties and fulfilment of other codal formalities decided the grievance petition in the following terms:- "7. Coming to the main occurrence, the cause of dismissal of the petitioner, the allegation is that on 24.5.1983 at about 3 pm he threw application across the table of Mr. Fayyaz Ahmad Store Officer for leave and when said officer objected to the way of submission of application, the petitioner asked him to sign the same by using foul language and further informed that in the near future he will be set right. Almost all the witnesses who appeared in the inquiry supported the said fact. Contention of learned counsel for the petitioner is that statements of witnesses an the point are not actually the same. Contention has no force, in that, the corroboration even in murder cases is not word to word but one thing here is clear that the application was thrown by the petitioner on the table. In my view such an attitude by a subordinate can conveniently be as act if said to be insubordination.
Refer 1984 PLC 987.
To add to the above, this was a domestic inquiry and the proceedings were not governed by the law of evidence or criminal law; ample opportunity was provided to the petitioner to defend himself, as such said, findings on technical grounds cannot be held to be perverse or against law, in that, substantial justice has been done.
In view of the above I see no substance in this petition which is hereby dismissed."
4.Hence this appeal on the grounds mentioned therein.
5. Learned counsel for the appellant, inter-alia, contended that the respondent Management produced Rana Fayyaz Ahmad Incharge Central Store, complainant as its witness. After his statement, the said witness was seen tutoring the other witnesses on 09.01.2004 in the office of the Deputy Industrial Relations Manager Ch.Akram in the presence of the Inquiry Officer. Further contended that on 13.01.2004 the other prosecution witnesses entered in the inquiry room with Rana Fayyaz Ahmad, the appellant objected to it. He informed the Inquiry Officer that Rana Fayyaz Ahmad is an Officer in the Management of the Factory while the other witnesses were subordinate to him, therefore, he is influencing them. It is in the interest of justice that the witnesses should depose without any foreign influence and also not in the presence of said Rana Fayyaz Ahmad. He requested that in the presence of one witness, the other witnesses may not be allowed to sit in the inquiry room and specially in presence of Rana Fayyaz Ahmad. The appellant also submitted an application dated 14.01.2004 to the Inquiry Officer. The said application was turned down and Rana Fayyaz Ahmad was allowed to sit, in the inquiry while his statement had already been recorded and the statements of the other witnesses namely Muhammad Rafique and Muhammad Javed Akhtar were being recorded. In this way inquiry proceedings were not conducted fairly and in accordance with the principles of natural justice. The appellant also submitted another application on 14.01.2004 to the Inquiry Officer that the relevant record relating to his statement may be summoned to facilitate the appellant in the cross-examination but the said application was also disallowed. Further contended that after conclusion of the prosecution evidence, the appellant was required to produce his defence evidence. The appellant submitted an application dated 17.01.2004 to the Inquiry Officer that he wanted to produce certain certified copies of the documents after receiving the same from the Labour Court and in this behalf an application had already been submitted and the appellant prayed that the appeal be accepted and impugned judgment be set aside. In support of his contentions, learned counsel for the appellant relied on law reported as PLD 1978 SC 207, NLR 1984 Lah. 68,1984 PLC 815, 2001 SCMR 1700, 2001 SCMR 256, PLD 2015 Lah. 272, PLJ 1997 SC 484 and concluded his arguments.
6. Conversely, learned counsel for the respondent vehemently opposed the arguments and grounds raised in the memo of appeal and argued in favour of impugned judgment.
7. Arguments heard and record perused.
8. The facts of the case are that the appellant was employed as Store Clerk in the respondent factory in the year 1977. He was illegally dismissed from his service vide order dated 24.08.1983. He filed a petition in the Punjab Labour Court No,2, Lahore and the same was dismissed vide decision dated 21.06.1993. The appellant filed an appeal and the same was accepted vide decision dated 17.11.2003 by the Honourable Lahore High Court, the impugned judgment of the learned Labour Court was set aside and the appellant was reinstated in his service. However, the respondent was allowed to hold fresh inquiry with the direction that the respondent would appoint independent Inquiry Officer. The back benefits were dependent upon the result of the fresh inquiry.
9. A fresh enquiry was conducted by Syed Nasir Hussain Bukhari Advocate, member of legal branch of respondent establishment. On 17/12/2003, a notice of inquiry was issued in the name of appellant. The appellant received inquiry notice and put his signature on the duplicate copy which is Exh.R-4. On 12/12/2003,(sic) the appellant appeared before the inquiry officer and submitted an application for the adjournment of proceedings on the ground that the appellant want to appoint his representative. The enquiry officer allowed the application and adjourned the proceedings for 26/12/2003.
10. On 26/12/2003, the appellant appeared in person before the inquiry officer and submitted another application for the adjournment of proceedings with a requested that appellant seeks further time for the appointment of his representative. The inquiry officer again accepted his application and adjourned the inquiry proceedings for 31/12/2003 for the nomination of representative of the appellant and recording of evidence of the claimant.
11. On 31/12/2003 once again the appellant submitted an application for third time on the same ground, i,e, nomination of his representative.
This application was' once again allowed by the inquiry officer and inquiry proceedings were adjourned for 03/01/2004.
12. The appellant appeared in person on 03/01/2004 and repeated his earlier conduct and requested for another adjournment through application for nomination of his representative. The inquiry officer accepted the application and adjourned the matter for 07/01/2004. On 07/01/2004 the statement of one witness of respondent was recorded in presence of appellant who instead of proceeding further, requested for the adjournment to conduct cross-examination upon the witness. The inquiry officer allowed the request of appellant and adjourned the inquiry proceedings for 09/01/2004 for cross-examination.
13. On 09/01/2004, the appellant cross-examined the witness and the inquiry proceedings were adjourned for 13/01/2004 and then on 14/01/2004 for further recording of evidence of respondent.
14. On 14/01/2004, the appellant cross-examined the recorded witness of the respondent and inquiry proceedings were adjourned for the recording of remaining evidence of respondent.
Ultimately the entire evidence of respondent was recorded on 15/01/2004, who were cross- examined by the appellant and the matter was adjourned for the evidence of appellant for 17/01/2004. On 17/01/2004, the appellant got an adjournment for producing his oral as well as documentary evidence which was allowed and the inquiry proceedings were adjourned for 21/01/2004, the appellant further got adjournments on various dates on one or the other pretext and at the end, 'the appellant by cotted the proceedings on the pretext that the statement of defence witness be recorded before appellant's statement.
15. Exh.P-29 in show-cause notice. The allegations leveled against the appellant has been reproduced as follows:- "Subject: Show-Cause Notice Reference No, It has been reported that on 24.05.1983 at about 3:00 P.M. you threw across the table, of Mr. Fayyaz Ahmad Stores Officer your application for previous day's leave. When Mr. Fayyaz objected to the way the application was submitted, you asked him to sign the application using foul language and informed him that in the near future you will set him right. Saying that you picked up the application and again threw across the table saying that you would see as to how Mr. Fayyaz refuse to sign the same.
This act of your's tantamount to an act subversive of discipline which is a misconduct.
You are, therefore, hereby required to explain in writing within 48 hours from the receipt of this notice, as to why disciplinary action should not be taken against you. In case, we do not receive your reply within the time specified above, ex parte shall be taken against you."
16. The charge against the appellant is of misconduct that the behaviour of the appellant with his officials remained un-ethical rude and derogatory. The appellant was provided with number of opportunities but throughout he tried to frustrate the inquiry proceedings. This Tribunal perused that the appellant submitted various applications for the adjournment of inquiry proceedings on 20/12/2003, 26/12/2003, 31/12/2003 and 03/01/2004. In all the applications the appellant A contended that no worker from the entire factory came forward to corroborate the version of appellant or defend him which is another proof of mal-behaviour of the appellant that no one from the factory worker came forward to support the appellant.
17. This Tribunal further observed that the appellant participated in the inquiry proceedings, who was marked present by the inquiry officer and the appellant also put his signatures on the order sheet on every date of hearing and also cross-examined the prosecution witnesses but later on, he by cotted the inquiry proceedings without any plausible reason after observing that the prosecution witnesses have supported the version of management which is not warranted under the law. This Tribunal also perused the record and observed that there is no evidence on the file whereby during the inquiry proceedings, the appellant showed his lack of confidence upon the inquiry officer. Thereafter, the appellant is estopped B by his words and conduct to level any allegation of lack of confidence upon the inquiry officer. Mere allegation of bias against inquiry officer would not be sufficient to issue bias relied on law reported as 2007 PLC (C.S.) 348.
18. This Tribunal also do not agree with the argument of learned counsel for the appellant in respect of appointment of enquiry officer because in the first instance it is the prerogative of the management to appoint inquiry officer from the management and secondly when at the relevant time, the appellant did not raise any objection in relation with the appointment of enquiry officer rather he participated in the inquiry proceedings and even cross-examined the prosecution witness. There after the appellant cannot level the allegation of bias without solid reasons. Relied on 1986 PLC 63.
19. This Tribunal also rule that demand of the appellant that the witnesses of appellant be cross- examination in his presence and thereafter the statement of appellant be recorded is erroneous, because the witnesses of appellant had to corroborate the statement of appellant.
The appellant instead of adopting the procedure was bent upon that the procedure of his choice be followed which is not warranted under the law because nobody could claim vested right in the procedure. Relied on law reported as 2006 SCMR 1010.
20. The appellant was dismissed from service after a just and fair inquiry. After alleged misconduct is established in inquiry, the question of punishment is the discretion of employer. The appellant was dismissed from service after a proper domestic inquiry whereby the guilt of appellant was proved hence no interference is called for. Relied on:- PLD 2003 SC 952, 1988 PLC 808 and 1984 PLC 1057 The upshot of above discussion is that learned counsel for the appellant could not point out any illegality or infirmity in the impugned judgment. The law relied upon by the learned counsel for the appellant is also distinguishable and not applicable in the instant case. The appeal is without merit. Therefore dismissed.