The petitioner Nazar Hussain Alvi who was an assistant in the Habib Bank Limited, Liaqat Shaheed Road Branch in Bhalwal, District Sargodha, has moved this application under section 25-A of Industrial Relations Ordinance, 1969, against Habib Bank Limited, I.I. Chundrigar Road, Karachi, and its Vice-President/Zonal Chief, Habib Bank Limited Zonal Office, Sargodha. He was dismissed from service on 3-5-1982. He alleged that his dismissal was bad in law. He has stated that he was not given an opportunity to prove his innocence. The petitioner has alleged that a notice to appear before the enquiry officer was sent at his home address although he was on duty in the bank. The notice was received undelivered with the remarks of the postal authorities that ---family members have refused to receive.--- Petitioner has, therefore, contended that on this report of the postal authority no ex parte proceedings could be held against the petitioner because neither enquiry notice was served on the petitioner nor he refused to receive the enquiry notice.
2. He further submitted that the report of the enquiry officer is not based on the true facts on record but is based on conjectures and surmises. The petitioner being aggrieved from the dismissal order dated 3-5-1982 preferred a departmental appeal on 21-6-1982 which was rejected on 30-6-1982.
He then served a grievance notice on 29-7-1982 which was also rejected on 7-8-1982. The petitioner ultimately moved the learned Punjab Labour Court No.5, Faisalabad, on 4-9-1982. The learned Presiding Officer was pleased to re-instate the petitioner with back benefits vide order dated 22-2-1984. The petitioner was taken back on duty. In the meanwhile, the respondent Bank preferred an appeal against the order of the learned Labour Court before the Punjab Labour Appellate Tribunal which was accepted on 29-4-1986 on a technical ground that the Labour Courts have no jurisdiction in case of bank employees and that for them the proper forum is the National Industrial Relations Commission. The petitioner without any loss of delay filed the present petition on 29-4-1986. The petitioner, has, also moved an application for condonation of delay alongwith an affidavit stating that the petitioner was vigilant in pursuing his matter and that there was no delay or default on his part.
3. The respondent-Bank denied the allegations and submitted that the enquiry was made in accordance with the rules and procedures. It was also submitted that the petitioner had admitted his guilt in his letters dated 18-7-1981 and 21-7-1981 which were annexed as Annexures R-B and R-C.
It was further submitted that the petitioner deliberately abstained from participating in the enquiry.
The respondent-Bank also submitted that the petitioner resiled from his confession after a second show-cause notice was issued to him.
4. As regards the ex parte enquiry proceedings, it was admitted by the respondent-Bank that the enquiry notice was sent by registered post acknowledgment due on the correct address of the petitioner, and that the petitioner was thus duly served under the law. However, no explanation was offered by the respondents as to why notice of enquiry was not tendered to him in person. Similarly no explanation was offered as to why another attempt to serve the enquiry letter was not made when it was made known to the respondents that the family members had refused to receive the same. On facts it was submitted that the petitioner encashed a sum of Rs.1,800 from the account of one Dilber Hussain, deceased, and that the petitioner in this way committed forgery for which he was proved guilty of a grave misconduct.
5. The first point to be determined in this case is whether or not an opportunity was afforded to the petitioner to prove his innocence. The petitioner produced himself as a witness who stated that no enquiry notice was received by him. He was posted at the Liaqat Shaheed Road, Bhalwal, District Sargodha at the time when the notice of enquiry was issued from the Zonal Office but it was not served on him. He stated that it was also not served on him at his residence. He also stated that he was not given any chance of his defence in the enquiry. He further stated that the Tribunal also maintained the order of re-instatement on merits but did not allow him any back benefits.
However, the Labour Appellate Tribunal decided that the Labour Court has no jurisdiction to deal with the case. On the point of non-service of the enquiry notice, he stated in cross-examination that all the notices which were sent to him were sent at his residential address which was correct.
He stated that he did not receive any notice of enquiry dated 26-9-1981. He! Stated that he did not know if the said notice was sent to him by registered post. When confronted with the original registered receipt he admitted that the registered receipt is correctly addressed but submitted that this letter was not received by him. He denied the suggestion that the envelope containing the enquiry notice was received by him. He also denied the suggestion that he refused to receive the enquiry letter. He admitted that his father and children live in the house where the registered letter was sent. He also stated that the letter was notlanded over to him.
6. On behalf of the respondents, one Muhammad Riaz, Manager, Habib Bank, Allama Iqbal Road, Sargodha, was examined. He stated that one Saeed Umer, was appointed as an enquiry officer who is out of the country now-a-days. He produced the minutes and proceedings of the enquiry as well as the statements of the witnesses recorded by the enquiry officer. He submitted that the letter of enquiry was sent to the petitioner but he did not participate in the enquiry as such it was held ex parte. In cross-examination the witness also admitted that he has not signed the letter which was sent to the petitioner. He stated that he did not know if the petitioner was in service at the time when the enquiry was held. He also stated that the letter of enquiry was served on, him but he did not receive the notice. He further stated that the letter of enquiry was sent to the petitioner but he refused to take its delivery. He said that he could not say if the petitioner refused to take the delivery but it was so written on the envelope. The: second witness Muhammad Afzal produced by the respondent Bank on the point of service of the enquiry notice stated that the enquiry notice was sent to the petitioner. He did not participate in the enquiry. , He also admitted that he did not conduct the enquiry against the petitioner nor he was produced as a witness before the enquiry officer. He also admitted that he did not sign any notice issued to the petitioner. He also stated that he has not been posted at Bhalwal Branch where the incident relates. He also stated that the petitioner was unauthorizedly absent at the time when the enquiry was conducted but he was not dismissed for his unauthorized absence. He stated that a registered notice No.165 was sent to the petitioner which was returned. According to the remarks of the postman, the petitioner was not present and the relatives did not receive the registry. He admitted that no other notice of enquiry was served upon the petitioner. He further admitted that no notice was published in any newspaper that the enquiry was conducted ex parte. He also stated that when the enquiry was conducted at Bhalwal Branch he was not present there.
7. The following facts regarding the service of the enquiry notice are borne out from the above discussion: The notice of enquiry was not tendered to the petitioner for service. The enquiry notice was sent through registered post on the residential address of the petitioner. The petitioner was not present at the time when the postman took the registered letter for service on the petitioner but it was tendered to his relatives who refused to receive the registered letter. No effort was made by the respondent-Bank to again serve the notice of enquiry on the petitioner. It is therefore an admitted fact that neither the notice of enquiry was received by the petitioner nor he refused to receive the same.
8. During arguments the learned counsel for the respondent-Bank relied upon PLD 1965 Lah.126.
The said case related to West Pakistan Urban Rent Restriction Ordinance (VI) of 1959 and Displaced Persons (Compensation & Rehabilitation) Act, 1958. In this case it was held that if it is proved that the notice was correctly addressed and posted it shall be presumed to have been received by the addressee and that examining a postman as a witness to prove endorsement formally is not necessary. In this case the respondent had raised the objection that he was not served with a notice under section 30 of the Act XXVIII of 1958. However, the endorsement on the notice by the postman was ---acceptance refused in the presence of Mistri Kalimud Din---. It will be thus clear from the perusal of the decision reported in PLD 1965 Lah. 126, that in this case the petitioner had himself refused to accept the notice in the presence of a witness. The facts of the case reported in PLD 1965 Lah. 126 are, therefore, quite different from the present case. The learned counsel also relied upon a case reported in PLD 1982 SC 225 through which two appeals were decided by a common order. In these cases, the employers had sent the charge sheets to the workers at their residential addresses containing charges of absence for more than 10 days. The workers had taken the plea that since they were in jail, the notices could not be received by them. It was, therefore, held as under: ---Concluding, therefore, it is only in the exceptional circumstances that the mode of substituted service is in vogue which do not exist in the present case; and I would even go to the length of saying that if the provisions caused a statutory duty to intimate, in writing, to the workman about the action proposed to be taken against him, then correspondingly the workman is under an obligation to keep the management informed of his whereabouts and in the case of his failure to do so, he himself impedes the obligation on the part of the management to afford to him an opportunity of being heard and, therefore, he cannot complain of a decision having been taken in his absence. The learned Single Judge was, therefore, in error in holdings that respondent No. 1 was not informed of the impeding action against him as the management had failed to adopt the mode of substituted service by publication in a newspaper.--- From the above extract, it would be seen that the facts in the appeal before the Supreme Court were different from the present case. In appeals before the Supreme Court, the fact was that the respondents were in jail and the letters were issued at their residential addresses. The workers did not communicate the management that they are in jail. In the present case the petitioner was in service of the Bank. In the natural course of events the enquiry letter should have been tendered to the petitioner in person. It is not the case of the respondent-Bank that the enquiry notice was offered to the petitioner but he refused to accept the same. It was also in the knowledge of the Bank that the petitioner was not present at the time when the registered notice was sent to the petitioner and that it was refused by his relatives. Having come to know that the relatives of the petitioner have refused to accept the notice it was the bounden duty of the respondent-Bank to have attempted to serve the notice on the petitioner in any other manner, The learned Labour Court before whom the case was originally moved gave the following finding: ---Before discussing the facts, it is established by the documentary evidence that the respondent- Bank had been conveying the letters from time to time at the home address of the petitioner so the unserved enquiry notice at the home address of the petitioner is not believeable. The ex parte enquiry conducted by the respondent tantamount to hasty steps. Admittedly, no notice was served upon the petitioner by the enquiry officer. Moreover, the enquiry officer who was otherwise a witness in the case could not act as a judge in the case of the petitioner. The allegations against the petitioner have not been proved by independent enquiry.---
9. The learned Punjab Labour Appellate Tribunal, Lahore, in its judgment had, held, as under: Service of the enquiry notice does not stand approved. The envelope containing the enquiry notice bears the report of the postman which is to the effect that the addressee was not present at the residence and the inhabitants refused to receive the letter. Since the respondent could not be contacted by the postman another attempt should have been made to effect personal service or the appellant should have sent fresh notice after the previous one had been received unserved. So there was no justification in holding ex parte enquiry and this is another reason for which the order of dismissal based upon enquiry report is not maintainable.---
10. Agreeing with the findings of the learned Labour Court and the learned Punjab Labour Appellate Tribunal, I hold that the petitioner was condemned unheard and was not given an opportunity to prove his B', innocence. The dismissal order based on the ex parte enquiry proceedings is, therefore, bad in law. I, therefore, set aside the dismissal order and direct the respondents to re-instate the petitioner with immediate effect. However, taking into consideration, the circumstances of the case, I do not award any back benefits to the petitioner and the period from 29-4-1986 to the date of joining his duties shall be treated as leave without pay.
11. Before parting with this judgment, it may be stated that I have not deemed it necessary to give my findings on the merits of the case in view of the fact that the petition has been accepted on the ground that the opportunity was not given to the accused to prove his innocence against the charges for which he was dismissed.
12. The next point to be determined in this case is whether the circumstances warrant a fresh enquiry to be held against the petitioner. In this regard I would also like to reproduce below the observations of the Punjab Labour Appellate Tribunal, Lahore: ---As a result of the observations made above, the appeal is accepted on the point of jurisdiction and set aside the impugned decision of the Labour Court, the grievance petition is directed to be returned to the respondent for presentation to the proper forum. However, if the Supreme Court holds that the Labour Courts have jurisdiction, the order of re-instatement passed by the learned Labour Court shall stand and the respondent would be entitled to get that order implemented but in that eventuality the respondent would not be entitled to back benefits.--- It would be seen from the above extract of the decision of the learned Tribunal that the respondents were not allowed to hold fresh enquiry against the petitioner, and in case the Supreme Court of Pakistan holds that the Labour Courts have jurisdiction to decide cases of Banks employees pertaining to individual grievances, the learned Tribunal's decision is quite clear on the point. Moreover, I am also of opinion that in the given circumstances of the case, fresh enquiry should not be allowed particularly because the petitioner was dismissed as early as on 3-5-1982 and is since then litigating before different Courts for the redressal of his grievance. Moreover, there are two judgments one of the Labour Court and the other of the Punjab Labour Appellate Tribunal in which the findings have been given in favour of the petitioner even on merits.