Muhammad Zubair Aziz Cheema, Member.--The appellant has filed this revision petition by contending there that the respondent was employed as Manager in UBL at Al-Ain Branch, UAE; that he was issued with the charge sheet both at his UAE address as well as his local address at Mardan as the respondent had skipped away from his place of posting without informing and leaving the keys of the safe; that the respondent was also transferred from Al-Ain Branch to Main Branch, Abu Dhabi, UAE; that the charge sheet was issued and inquiry was conducted and order of dismissal was issued to the respondent upon which the respondent instituted grievance petition before the Sindh Labour Court No. 5 Karachi challenging the dismissal order dated 20.07.2010; that the bank filed its written reply along with legal objections then the parties evidence was recorded and subsequently affidavit in evidence of the than Assistant Vice-President UBL Mr. Muhammad Shariq Rashid the Inquiry Officer was also filed along with the affidavit in evidence of Syed Muzzaffar Saeed Vice-President dealing with the employees disciplinary matters; that ultimately the aforementioned Inquiry Officer Mr. Muhammad Shariq Rashid was posted in UBL Sharjah Branch as AVP and it was not possible for him to come over to Karachi and there was no possibility of his being cross-examined and even till that time the cross examination of the above witness Syed Muzaffar Saeed could also be not concluded; that later on affidavit in evidence of some Ghulam Jilani Assistant Vice-President was filed who knows Inquiry Officer, identified the signatures of the Inquiry Officer on the Inquiry Proceedings and the Inquiry Report in lieu of the Inquiry Officer and other witnesses but the Learned Presiding Officer of Sindh Labour Court No.5 Karachi refused the request of the appellant bank through the impugned order which has been assailed on the grounds inter alia, that if the production of some particular witnesses was not possible they could be substituted under the law; that it was not in the control and domain of the bank to produce the previous witnesses because of their relieving from services and posted at abroad and that the learned. Labour Court misconstrued the factual and legal position while considering some oral direction as written one.
2. Arguments heard record perused.
3. The learned counsel for appellant has reiterated the contents of his revision petition during the course of his arguments by further highlighting that it is not necessary to produce the Inquiry Officer to prove the inquiry proceedings if his availability becomes out of reach and substitute witnesses should have been allowed to be examined. The learned counsel for the appellant placed reliance upon 1996 SCMR page 201,2007 PLC page 381 and SBLR 2007 Sindh page 806.
4. On the other hand the learned counsel for the respondent has opposed this revision petition on the grounds that the impugned order does not suffer from any illegality and in fact the petitioner's side wants to examine the substitute witness after five years from retirement of the Inquiry Officer and when in this case the evidence was completed and the case was fixed for written arguments and as such this revision petition is meritless.
5. We have heard both the sides and perused the record with due care.
6. In this case, the learned Presiding Officer of Sindh Labour Court No.5 Karachi held in the impugned order that his predecessor had orally directed that once the cross-examination of Syed Muzaffar Saeed the supporting witness would be completed then only Muhammad Shariq Rashid may appear who had to travel from UAE for his cross-examination.
Factually the than Learned Presiding Officer of Sindh Labour Court No.5 Karachi refused the appellant to examine some other witness in place of Inquiry Officer but we think that in labour matters, the department can produce the witnesses under their employment acted in various capacity. According to learned counsel for the appellant the Inquiry Officer has left the job after receiving his dues and he is not available for evidence for the Bank and they want to examine in his place a person who is well conversant with the hand writing, signatures and inquiry proceedings as well as inquiry report. That the appellant should be given an opportunity to produce evidence of its own choice however, it would again be upon the discretion of the trial Court to assess about prudence or otherwise of the proposed statement. However, in such like cases where substitution becomes inevitable due to non-availability of the particular witnesses, a party should be allowed to produce evidence of its own choice. It has been observed by the Apex Court in 1996 SCMR page 201 that it cannot be held that in every case in which Inquiry Officer is not examined in support of the inquiry report, the same would be fatal upon the maintainability of the order passed pursuant to such an inquiry report rather it will depend on the facts of the case. In 2007 PLC page 381 the Honorable Lordship of Sindh High Court has observed that the Inquiry Officer was not held necessary in the circumstance and similarly in SBLR 2007 Sindh page 806 it was held that in case where Inquiry Officer was not examined in support of inquiry report it was not fatal to the maintainability of the order passed pursuant to such a report.
7. Besides the above discussion, this argument of the learned counsel for the respondent also carries ample force that in this case the proposed witness has been introduced after five years from retirement of the Inquiry Officer and after completion of parties' evidence. We hold that in fact the parties' evidence is still incomplete as the one side (the main respondent) is still requesting to examine the aforementioned witness and place the Inquiry Officer and other supporting witnesses so in our view in the interest of justice the petitioner should be given an opportunity to examine the witness of its own choice, however, since the grievance petition is pending since 2003 so only one opportunity would be given to the petitioner for conclusion of it's evidence.
8. So in view of what has been stated and by relying upon above referred esteemed case law, the revision petition is allowed with observation that after appearance of the parties before the Learned Single Member of NIRC, a date will be fixed, providing the petitioner/Bank only one opportunity for conclusion of it's evidence. No order as to costs. File be consigned to the record room after due completion.