DECISION ' I propose to dispose of these two appeals by the single decision as the facts and points of law involved in both the appeals are same. One of the appellants Farooq Jamal Abbassi died in the riots during the pendency of the appeal and his L.Rs, have been joined as a party to the appeal.
2. I have heard Mr. Ch. Muhammad Ashraf Khan, learned Advocate for the appellants and Mr. S.M.
Yaqoob, learned counsel for the respondents and have also gone through the record and proceedings of the cases.
3. The brief facts of the case are that on 22-6-1987 the appellants were separtely charge-sheeted with a common charge that during the months of February and March, 1987 they had prepared/signed forged office copies of Gate-Passes in respect of Billets, so as to indicate less quantity in the official documents, which resulted in the fraud of 110 M.T. Billets. A 'Joint Enquiry' was conducted by Mr. Syed Abbass Ali Jafri against the two present appellants and three other employees of the respondent establishment. The Enquiry Officer held the present two appellants guilty of the charges while exonerated the other three employees of the respondents. The appellants were dismissed from services by separate orders both dated 28-4-1988. Aggrieved by these dismissal orders the appellants served separate grievance notices upon the respondents and then filed the separate grievance petitions which were dismissed by the learned Labour Court vide separate impugned orders, dated 1-4-1990.
4. Mr. Ch. Muhammad Ashraf, learned counsel for the appellants, has contended that the domestic enquiry was not conducted in a fair and impartial manner and the appellants were not given chance to prove their innocence as required under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
5. It is admitted that the original documents and gate passes, which were allegedly forged by the appellants, were not shown to them in the domestic enquiry and, therefore, it is submitted that they were deprived of chance to show that either the said documents were not forged or did not bear their ;natures. Mr. S.M. Yaqoob, learned counsel for the respondents, submitted that during the 'preliminary enquiry' original documents were shown to the appellants, who admitted their signatures on the same. Admission, if any, of the appellants in 'preliminary enquiry' cannot be made basis of finding in the `domestic enquiry' without showing the documents. Even otherwise in their statements in the preliminary enquiry the appellants had not made, any unequivocal admission. They simply stated that some of the documents were signed by them but these signatures were due to rush of work and it might be negligence but there was no element of dishonesty involved. This statement does not show which documents were signed by each of them and what was the shortage as a result of those documents, gate-passes, which bore the signatures of the appellants. It appears, that even the Enquiry Officer did consider it necessary to have the original documents. He had admitted in the cross-examination that he verbally informed the appellants that he would summon the gate-passes which were with the management, but management informed him that those documents were with the F.I.A. Who were conducting enquiry. It may also be pointed out that a 'FIR.' was also lodged with the PIA.' and case is still pending before the `Criminal Court'. Under the circumstances I am inclined to agree with Mr. Ch. Muhammad Ashraf Khan that without confronting the appellants with the original documents in the domestic enquiry, the Enquiry Officer who himself had not seen the original document, could not have come to the conclusion that the same bore signatures of the appellants as a result of which shortage of 110 M.T. Billets occurred in the respondent establishment.
6. On going through the enquiry papers I find that two witnesses have been examined by the Enquiry Officer. On behalf of the establishment two witnesses were examined namely Hakam Khan, the complainant and one Atta Muhammad Sayal. The statement of Atta Muhammad Sayal does not throw any light on the alleged misconduct by the appellant, but he only alleges that appellant Farooq Jamal Abbasi alongwith two other officers had come to him and asked him to go with them to Hakam Khan to discuss certain mistake in documentation. The 'note' of the Enquiry Officer shows that Mr. Farooq Jamal Abbasi was given chance to cross-examine the witness, but he did not avail of the chance. However, main witness Hakam Khan had not been cross-examined by any of the appellants and there is no note to the affect that any chance was given to the appellants, and they did not cross-examine him. No such statement of the appellant was recorded. There is only one letter of Hakam Khan to the affect, that because the appellants were unwilling to cross-examine him, therefore he would also not cross examine them. However I find that the appellants have been put to gruelling examination by the Enquiry Officer.
7. It is submitted by Mr. Ch. Muhammad Ashraf that by cross-examining at length the appellants the Enquiry Officer had in fact converted himself into a 'prosecutor' and therefore cannot be considered as. Impartial. Mr. S.M. Yaqoob, on the other hand, contended that the Enquiry Officer put questions to elicit truth and that he had put questions to the complainant Hakam Khan also.
8. Mr. Ch. Muhammad Ashraf has relied upon the case of Muhammad Saleem Malik v. Agricultural Engineer, Rawalpindi Division and two others 1989 PLC 605, wherein learned Labour Appellate Tribunal Punjab had held that where opportunity was not given to the accused to cross-examine prosecution witnesses and statement of the accused was not recorded as to whether he did not want to produce evidence the accused was held to have been condemned unheard and consequential dismissal order was held not sustainable.
9. In the case of Ghulam Haider v. M/s. Latif Jute Mills Ltd. And another 1987 PLC 563. The Labour Appellate Tribunal, Quetta set aside the order of dismissal of workman wherein the Enquiry Officer before examining any evidence put the employee in the witness box recorded his statement and put him searching and embarrassing questions.
10. In the case of Usman v. Sindh Labour Appellate Tribunal and K.P.T. 1984 CLC 2782, a learned Division Bench of Sindh High Court at Karachi set aside the dismissal order of workman based on domestic enquiry where workman was put to close cross-examination by Enquiry Officer before production of any evidence against him.
11. Similar view was held by this Tribunal in the case of Amin Jan v. Messrs M.V. De Mayar Zelzate 1980 PLC 294. Similar view was also taken by this Tribunal in the case of Karachi Shipyard and Engineering Works Ltd. v. Abdul Ghaffar 1980 PLC 688.
12. In the case of Abdul Rashid v. Messrs Sindh Club 1982 PLC 915 this Tribunal had set aside order of dismissal of workman based on report of Enquiry Officer who himself cross-examined defence witnesses combining in himself both roles as Enquiry Officer and prosecutor by suggesting questions to witnesses and laying foundation for disregarding and disbelieving their evidence. It was held that Enquiry Officer, in the circumstances, was prejudiced against the accused.
13. Mr. S.M. Yaqoob, learned Advocate for the respondents, has not produced any authority to show that the Enquiry Officer could act as prosecutor and put such questions in detail to the accused persons in cross-examination specially when the complainant Hakam Khan had given in writing that he did not want to cross-examine them.
14. To sum up the circumstances of the case, it would be seen the Enquiry Officer has held the appellants guilty without confronting the appellants with original documents/gate-passes which were the basis of the alleged acts of misconduct and without even himself verifying the original documents. The record of the enquiry does not show that the appellants were offered by the Enquiry Officer to cross-examine Hakam Khan who was in fact the only witness but they declined. The Enquiry Officer also put questions to and cross-examined the appellants at length and based his finding on the answer in such cross-examination, even when the complainant gave in writing that he did not want to cross-examine the appellants. Such enquiry cannot be considered as independent or impartial as envisaged under Standing Order 15(4) and any order passed upon such enquiry report is not sustainable.
15. I, therefore, set aside the impugned orders of the learned Labour Court and the dismissal orders passed by the respondents and order the reinstatement of Muhammad Jaseem with back benefits. However the charges against him are of serious nature and the order of dismissal has been set aside only on technical ground, as such the respondents, if they so desire, would be at liberty to hold fresh enquiry against him on the same charge-sheet, through some independent Enquiry Officer, who should act in accordance with the law, and principles of natural justice. The payment of back benefits could be dependent upon the result of fresh enquiry. However the fresh enquiry should be completed within a period of six months from the date of this order or amount of back benefits be paid to the appellant, unless the time for complete enquiry is extended by this Tribunal, if satisfied that the delay has been caused due to some act of commission or omission on the part of the appellant. The order of reinstatement to be implemented within one month.
16. As the appellant Farooq Jamal Abbasi has died during the pendency of the appeal, he cannot be ordered to he reinstated nor any fresh enquiry can be held against him. However as the impugned order of the learned Labour Court and the order of dismissal of the appellant Farooq Jamal Abbasi is set aside, he would be deemed to be in service of the respondent till the time of his death. His L.Rs, are entitled to the payment of hack benefits and other legal dues admissible to the deceased appellant upto the time of his death. The payment of aforementioned dup to he made to the LRs of Farooq Jamal Abbassi within three months.