' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the order dated 7-4-1992 of a learned Single Judge of the Lahore High Court passed in Writ Petition No, 12190 of 1991 filed by the appellants against the judgments dated 5-6-1991 and 30-9-1991 of the learned Presiding Officer, Punjab Labor Court No, 2, Lahore, and of the learned Punjab Labor Appellate Tribunal, Lahore, respectively, allowing respondent No,l's petition under Section 25-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., setting aside the order of dismissal of respondent No,1 from the appellants' service, declining the same by maintaining the judgment of the Punjab Labor Appellate Tribunal.
2. The brief facts are that, at the relevant time, respondent No,1 was employed as Officer Grade-III with the appellants. It seems that he got sanctioned 9 days ex-Pakistan leave for performing Umra in Saudi Arabia. It appears that instead of returning to Pakistan upon the expiry of above 9 days leave on 12-5-1983 respondent No,1 sent an application for extension of leave on medical ground. It is not clear from the record for how many days respondent No,1 sought extension nor it is indicated whether the aforesaid application for extension of leave was received by the appellants. Be that as it may, an enquiry was initiated against respondent No,1 for remaining absent from duty unauthorized. He was sent charge-sheet, notice of appearance by the Enquiry Officer etc. In the above enquiry respondent No,1 did not participate. It seems that when the aforementioned enquiry was at the final stage, respondent No,1 reported for duty on 10-12-1984 but he was not allowed to resume duty through an order dated 29-12-1984. After that he received the order dated 10-2-1985 whereby respondent No,1 was dismissed from service with effect from 12-5-1983 i,e, from the date on which his 9 days leave had expired. Respondent No,1 contested the above order inasmuch as he filed a petition under section 25-A of the I.R.O. Which was resisted by the appellants. However, the learned Presiding Officer, Punjab Labor Court No,2, Lahore, after recording evidence and hearing the parties, through his aforesaid judgment dated 5-6-1991 set aside the dismissal order and reinstated respondent No,1 in service with back benefits by holding that the dismissal order was bad inter alia for the following reasons:--
(i) That respondent No,1 was removed from service with retrospective effect;
(ii) That respondent No,1 was not provided opportunity t defend himself and, therefore, no proper enquiry was Idled because of violation of principles of natural justice;
(iii) That no charge-sheet was served on respondent No,1; and
(iv) That as Enquiry Officer was not produced before the Labor Court, adverse inference could be drawn against the appellants.
3. Against the above judgment the appellants filed an appeal which was disposed of by the learned Punjab Labor Appellate Tribunal through its aforesaid judgment dated 30-9-1991 whereby it inter alia held as under:-- ' That the registered letter containing the charge-sheet. And enquiry notice were not received back from Saudi Arabia and as respondent No,1 did not appear, ex parte enquiry was rightly held against him; ' That respondent No,1 was dismissed by the competent Authority; and
(iii) That since no copy of enquiry report was supplied to respondent No,1 to enable him to submit his explanation, which was to be forwarded Along with the enquiry report for consideration of the ,competent authority, the order of dismissal was not sustainable.
' In view of the last conclusion, the learned Punjab Labor Appellate Tribunal maintained the judgment of the Labor , Court but with the modification that back benefits to respondent No,1 were disallowed.
4. . Against the aforementioned judgments the appellants filed the aforesaid writ petition, which was dismissed in limine through the order under appeal. Thereupon, the appellants filed a petition for leave to appeal which was granted to consider the question, whether an employee is proceeded ex parte in a departmental enquiry held against him, it is still necessary to serve on him the enquiry report and the second show-cause notice. .
5. In support of the above appeal Kb. Muhammad Farooq, learned A.S.C. For the appellants, has vehemently contended that the view found favour with the learned Punjab Labor Appellate Tribunal that as no copy of enquiry report was supplied to respondent No,1 to enable him to submit his explanation which was to be forwarded with the enquiry report to the competent Authority, dismissal order was not sustainable, is contrary to law as there is no requirement under Rule 39 of the National Bank of Pakistan (Staff) Service Rules, 1980, hereinafter referred to as the Rules, or under Rule 258 (5) of the Wage Commission Award.
' On the other hand, Mr. M. Asghar Malik, learned A.S.C. Appearing for respondent No,1, has urged as under:--
(i) that since the dismissal order dated 10-2-1985 purported to be retrospective in effect i,e, with effect from 12-5-1983, the same was not sustainable;
(ii) That since the Enquiry Officer was not examined by the appellants, the enquiry report and consequential order of dismissal pursuant thereof was not sustainable;
(iii) That since respondent No,1 had reported for duty on 10-12-1984, the Enquiry Officer should have served a copy of enquiry report on respondent No,1 and should have given him a chance to show cause for the punishment which he intended to recommend to the competent Authority; and
(iv) That since it has been held by this Court in an unreported judgment dated 15-1-1992 in the case of National Bank of Pakistan through General Attorney (Zonal Head) v. Punjab Labour Court No, 8 Multan and 2 others (Civil Appeal No, 304 of 1990) that the rules for want of approval of the Government had no statutory force, the action under the same stood vitiated, the impugned order of dismissal cannot be sustained.
6. We may advert to the main contention, namely, as to whether under Rule 39 of the Rules respondent No,1 was entitled to have a copy of the enquiry report and in reply thereof to give explanation for remitting the same to the competent Authority along with the recommendation of the Enquiry Officer. It seems that except the judgment of a Division Bench of the High Court of Sindh in the case of A. Ghani Sayeed v. National Bank of Pakistan (1989 PLC (C.S.) 249), there is no other judgment directly on the interpretation of Rule 39 of the Rules. The other judgments referred to by the learned counsel for the parties relate to the interpretation of Standing Order 15 (4) and Rules 5 and 6 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. We may refer the above reports which are as follows:-
(i) A. Ghani Sayeed v. National Bank of Pakistan (1989 PLC (C.S) 249); in which a Division Bench of the High Court of Sindh with reference to Rules 37 and 39 of the Rules held that issuing of a second show-cause notice cannot be termed as a necessary requirement of observance of principles of natural justice and in case where full opportunity has been afforded to a party to participate in the proceedings, produce the witnesses and cross-examine the witnesses of the other side, it is not necessary that a copy of the enquiry report unless specifically required by the Rules be supplied to the accused party so that he can make further representation to the competent Authority. It was further held that the above rules do not require issuance of a second show-cause notice or supplying a copy of the enquiry report.
(iii) Dawood Cotton Mills Ltd. v. Guftar Shah' and another (PLD 1981 SC 225); ' In the above case this Court, while construing provisions of Standing Order 15(4), held that second show-cause notice after the completion of the enquiry was not a requirement of rules of natural justice.
(iii) Sarfraz v. General Manager (Leaf), Pakistan Tobacco Company Ltd. And others (1988 SCMR 1352); in which again this Court while construing the provisions of Standing Order 15(4) reiterated the earlier view taken in the case of Dawood Cotton Mills Ltd. (supra) and distinguished the judgment of this Court in the case of Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary (PLD 1981 SC 176) on the ground that in the latter case, the subject-matter of interpretation were the provisions of N.-W.F.P. Government Servants (Efficiency and Discipline)
Rules, 1973, and not Standing Order 15(4).
(iv) Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary (PLD 1981 SC 176); ' In the above case this Court, while construing Rules 5 and 6 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, held that the same implicitly require copy of enquiry report to be furnished to the accused official to enable him to offer his explanation with regard to the adverse findings, if any, recorded against him and that such requirement cannot be brushed aside by saying that such a course would amount to serving of a second show-cause notice. In the above case reliance was placed on the case of Punjab Road Transport Corporation v. Punjab Labor Appellate Tribunal, Lahore and 2 others (PLD 1972 Lahore 699), in which Nasim Hasan Shah, J. (as he then was), who happened also to be the author of this Court's judgment in the case of Syed Mir Muhammad (Supra), while construing Standing Order 15(4), held that the supply of Enquiry Officer's Report was not only necessary in order to satisfy the interest of natural justice but was essential in order to fulfill the requirements of Clause (4) of Standing Order 15 itself. Reference was also made to the factum that above view in the case of Punjab Road Transport Corporation (supra) was upheld by this Court as leave was declined against the above judgment. The order refusing leave is reported in (1973 SCMR 455). Reliance was also placed on the judgment of this Court in the case of Islamabad Club v. Punjab Labor Court No, 2 etc. (PLD 1980 SC 307), in which this Court has held as under:-- "The High Court seems to us to be right in observing that the employee was given notice of only one misconduct, namely, that of holding meetings during working hours in the Club premises without obtaining previous permission, yet the findings of the Enquiry Officer covered other matters also which disclosed far more serious acts of misconduct on the part of the respondent, which could not be said to be included in the original charge framed against him. We think that it is clear that the findings recorded by Enquiry Officer on matters, which were not included in the original charge, must have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent. In the circumstances, it could not be said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no copy of the Enquiry Report was furnished to him and he was, therefore, not in a position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held, as the High Court has done, that the requirements of reasonable opportunity, as embodied in clause (4) of Standing Order No, 15, were not fulfilled in this case?
7. From the above reports, it seems that even on the interpretation of the provisions of Standing Order 15 (4), the original view of this Court was that an accused party was entitled to receive a copy of the enquiry report in order to submit his explanation to the conclusion and also to agitate the question of quantum of punishment recommended by the Enquiry Officer. However, this view is no longer holding the ground because of the subsequent judgment in the case of Sarfraz v.
General Manager (Leaf), Pakistan Tobacco Company Limited (supra), in which the Bench consisted of Muhammad Haleem, C.J, and his five companion Judges took a contrary view. Incidently, it may be pointed out that Nasim Hasan Shah,. J., was a party to this judgment as well. In this case the judgment rendered by this Court in the case of Syed Mir Muhammad (supra) was not overruled but was distinguished as under:-- "This provision was interpreted in Dawood Cotton Mills Ltd. v. Guftar Shah (PLD 1981 SC 225) and it was held that neither the giving of second show-cause notice nor the supplying of the report of the Enquiry Officer is a requirement of principles of natural justice. All that is needed in the circumstances is to give a fair opportunity of hearing and defenses to the other side so as to fulfill the requirement of natural justice. Therefore, the assumption that a second show-cause notice and a copy of the Enquiry Report was necessary to be supplied before the penalty is imposed is erroneous as this requirement was spelt out from the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, on the facts and circumstances of the case to satisfy the requirement of prejudice said to have been caused to the Government servant. It is always now a question to be resolved on the facts of each case as to whether such a requirement was necessary considering the element of prejudice. The Tribunal, therefore, erred in law to rely upon the decision in Syed Mir Muhammad's case."
8. The view of this Court holding the ground is that Rules 5 and 6 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, implicitly require a copy of the enquiry report to be furnished to the accused official to enable him to offer his explanation with regard to adverse findings and that under clause (4) of the Standing Order, there it no such requirement. The question which requires consideration is, as to whether Rules 5 and 6 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, are more akin to Rule 39 of the Rules or the provisions of clause (4) of Standing Order 15. If the answer of the former is in the affirmative, in that event, the ratio decided of the judgment of this Court in the case of Syed Mir Muhammad (supra) shall be attracted to and omission on the part of the appellants to supply a copy of the enquiry report to respondent No,1 in order to enable him to submit his explanation so that it might be remitted along with the enquiry report to the competent Authority for consideration of the recommendation of Enquiry Officer, will be fatal as held by the learned Punjab Labor Appellate Tribunal. But, if the answer of the former is in the negative and of the latter is in the affirmative, the ratio decided of the judgment of this Court in the case of Dawood Cotton Mills Ltd. (supra) reiterated by this Court in the case of Sarfraz v. General Manager (Leaf), Pakistan Tobacco Company Ltd. (Supra), would govern the case. In order to arrive. At a correct conclusion it may be pertinent to examine the provisions of Rule 39 of the Rules, Rules 5 and 6 of the N.-W.F.P.
Government Servants (Efficiency and Discipline) Rules, 1973, and clause (4) of the Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which read as follows:-- "39. Disciplinary action--Procedure.--(1) When, as a result of preliminary investigation, an employee is reported to have committed any irregularity mentioned in rule 37, the competent Authority shall cause a charge-sheet to be issued to him and shall appoint an Enquiry Officer or an enquiry committee to hold an enquiry in the case. The competent Authority may delegate the powers to issue charge-sheet and to appoint Enquiry Officer or enquiry committee to a subordinate authority.
(2) (a) The Enquiry Officer or the Enquiry Committee so constituted shall require the accused within a reasonable time, which shall not be less than 7 days and more than 14 days from the date charge-sheet has been communicated to him, to put in a written defenses and to state at the same time whether he desired to be heard in person;
(b) The Enquiry Officer or the Enquiry Committee, as the case may be, shall enquire into the charges and may examine such oral or documentary evidence in support of the charges or in defenses of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him;
(c) Where the Enquiry Officer or the Enquiry Committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the enquiry, he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard to the warning, he or it shall record a finding to that effect and proceed to complete the enquiry in such a manner as he or it thinks best in the circumstances;
(3) The report together with the employee's statement shall be laid before the authority ordering in the enquiry which shall consider the matter and award such punishment, as it deems proper, if it is competent Authority itself under rule 37; otherwise lay the said report before the authority competent with its recommendations. The decision of the competent Authority shall be conveyed in writing to the employee concerned: ' Provided that in the light of facts of the case the requirements of sub-rules (1), (2) and (3), may be dispensed with by the competent Authority and it will be just and proper for the competent Authority to take an explanation of the employee and award punishment forthwith."
' Rules 5 and 6 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973.
Inquiry procedure.---The following procedure shall be observed when a Government servant is proceeded against under these rules:--
(1) In case where a Government servant is accused of subversion, corruption or misconduct, the authorized Officer may require him to proceed on leave or, with the approval of the authority, suspend him provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorized Officer shall decide whether in the light, of facts of the case or the interests of justice an enquiry should be conducted through an Enquiry, Officer or Enquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply.
(3) If the authorized Officer decides that it is not necessary to hive an enquiry conducted through an Enquiry Officer. Or Enquiry Committee, he shall-
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action: ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the report of the Enquiry Officer or Enquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorized Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Enquiry Officer or Enquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper".
"6. Procedure to be observed by the Enquiry Officer and Enquiry Committee.--(1) Where an Enquiry Officer or Enquiry Committee is appointed, the authorized Officer shall-
(a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration;
(b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defenses and to state at the same time whether he desires to be heard in person.
(2) The Enquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defenses of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him.
(3) The Enquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no 'adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons therefor shall be reported forthwith to the authorized Officer. Normally no adjournment shall be for more than a week.
(4) Where the Enquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper, the progress of the enquiry, he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard of the warning he or it shall record a finding to that effect and proceed to complete the enquiry in such manner as he or it thinks best suited to do substantial justice.
(5) The Enquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorized Officer, submit his or its findings and the grounds thereof to the authorized officer."
Standing Order 15 (4) of West Pakistan Industrial and Commercial Employment Standing Orders)
Ordinance, 1968: "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of, dismissal and, the employer shall institute independent inquires before dealing with chaises against a workman: ' Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."
9. . A comparison of the above-quoted provisions of the aforesaid Rules, and Standing Order 15 (4) indicates that the provisions of Rule 39 of the Rules and Rules 5 and 6 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to ar. Rule 5 or 6 as the case may be) are more or less couched in the same language except that there are minor variations and absence of provision in Rule 39 similar to that of sub-rule (3) of Rule 6. It may be pointed out that sub-rule (1) of Rule 39 and clause (a) of sub-rule (1) of Rule 6 envisage the issuance of the charge-sheet to the accused employee. Above clause (a) of sub-rule (1) of Rule 6 also contemplates that the charge should be accompanied with the statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration. The above portion is missing in sub-rule (1) of Rule 39 of the Rules.
' It may further be pointed out that clause (a) of sub-rule (2) of Rule 39 and clause (b) of sub-rule
(1) of Rule 6 are identical inasmuch as both provide that the accused employee would be required to put in written statement and to state the same time whether he desired to be heard in person. It is envisaged that above reasonable time shall not be less than seven days or more than fourteen days from the day the charge-sheet has been communicated to him.
' It may further be observed that clause (b) of sub-rule (2) of Rule 39 is pari material with sub-rule
(2) of Rule 6 which empowers the Enquiry Officer or the Enquiry Committee, as the case may be, to enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defenses of the accused employee as may be considered necessary. It also confers a right on the accused employee to cross-examine the witnesses examined by the Enquiry Officer in support of the charge.
' It may be mentioned that clause (c) of sub-rule (2) of Rule 39 is identical wiph sub-rule (4) of Rule 6 as both empower the Enquiry Officer or the Committee, as the case may be, if he or it is satisfied that the accused employee is hampering or attempting to hamper the progress of the enquiry, he or it shall administer a warning, and if thereafter he or it is satisfied that the accused employee is acting in disregard of the warning, he or it shall record a finding to that effect and to proceed to complete the enquiry in such manner as he or it thinks best Audited in the circumstances to do substantial justice. The words "Suited to do substantial justice" are missing in clause (c) of sub-rule
(2) of Rule 39 as the words employed therein are "he or it thinks best in the circumstances".
' It may be observed that sub-rule (3) of Rule 39 and sub-rule (5) of Rule 6 both provide for the submission of the report by the Enquiry Officer or the Enquiry Comminute but the wording of the above two provisions are substantially different inasmuch as in sub-le (3) of Rule 39, it has been provided that the report together with the employee's statement shall be laid before the authority ordering the enquiry which shall consider the matter and award such punishment as it deems proper, if it is competent Authority itself under Rule 37 of the Rules, otherwise lay the said report before the' competent authority with its recommendations and that the decision of the competent Authority shall be conveyed in writing to the employee concerned.
' It may be pointed out that sub-rule (4) of Rule 5 more or less identical with certain variations to above sub-rule (3) of Rule 39, as the former envisages that if the authorized Officer upon receipt of the enquiry report wishes to impose a minor penalty, he can do so himself, but in case he wants to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused official, the explanation of the accused, the findings of the Enquiry Officer or Enquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed.
' It may further be pointed out that sub-rule (5) of Rule 6 prescribes the period of 10 days or such longer period as may be authorized by the authorized officer from the date of conclusion of the proceedings for submission of the report by the Enquiry Officer or the Enquiry Committee, but there is no such time limit provided in Rule 39.
' It may also be stated that proviso to sub-rule (3) of Rule 39 is missing in Rule 6 but in pith and substance we find the same in sub-rule (3) of Rule 5 with certain additions and variations.
' Adverting to clause (4) of Standing Order 15, it may be pointed out that the wording of the above clause is different from the aforesaid two provisions of the Rules discussed earlier. It envisages that no order of dismissal shall be made unless:
(i) written notice of alleged misconduct is given to the workman within one month from the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer;
(ii) the workman is given an opportunity to explain the charges against him;
(iii) the employer shall institute independent enquiries before dealing with the charges against a workman; and
(iv) before passing dismissal order, approval of the employer (which will include the Manager as per section .2 (c) of the I.R.0.) shall be obtained.
10. We may observe that the paramount object of framing of the above rules and the enactment of clause (4) of Standing Order 15 seems to be to provide a fair and reasonable opportunity to an accused employee to defend himself against the charge brought against him by his employer in order to erasure adherence of the principles of natural justice. This will implicitly include the right to have a copy of the charge-sheets with all material particulars relating to allegations on the basis of which charges are founded, to have reasonable time to submit a reply to the charr-sheet, to participate in an enquiry proceeding, to examine the documentary evidence produced in support of the charges, to cross-examine the witness, produced by the employer and to produce oral and/or documentary evidence in rebuttal to 'the, evidence produced in support of the charges. If, an accused employee is provided opportunity as above, it will be difficult for him to urge that such an enquiry was not fair or that it was violate of the principles of natural justice. However, it may be .Pointed out that if an Enquiry Officer or an Enquiry Committee relies on the facts which were not part 'of the statement of allegations in support of the charge or based his or its finding on the material which was not brought to the notice of the accused employee, any adverse order pursuant to such a finding shall not be sustainable in law.
' The question, whether an accused employee is entitled to a copy of the enquiry report in order to enable him to submit his comments/explanation to the same, depends on the language employed in the relevant provision of the statute or the rules involved and also on the factum, whether omission to supply the same has caused him material prejudice. .
11. It will not be out of context at this juncture to point out that the learned Punjab Labor Appellate Tribunal on the basis of the language used in sub-rule (3) of Rule 39, namely, that the report will be accompanied with the statement of the employee, has concluded that the statement referred to therein is statement in reply to enquiry report after the receipt of the same. The above view has been concurred with by the learned Judge in Chambers.
' In the case of Syed Mir Muhammad (Supra) this Court while interpreting sub-rule (4) of Rule 5 (i,e, of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, which is in pith and substance more or less same as above sub-rule (3) of Rule 39 as pointed out hereinabove in para.9, has taken the same view which has found favor in the instant case by the two Courts below.
It may be instructive to reproduce the relevant portion of the judgment which reads as under:-- "When the Enquiry Officer or the Committee has submitted its report to the authorized Officer, the matter is governed by sub-rule (4) of rule 5, which is, in fact, a composite rule, dealing with both the situations, namely, where an inquiry is held or where it is dispensed with. This sub-rule is in the following terms:- 'On receipt of the report of the Enquiry Officer or Enquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorized Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Enquiry Officer or Enquiry Committee, if appointed, and his own :recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper.'
' It will be seen that in a case where it is proposed to impose a major penalty as a result of a formal inquiry, the Authority is required before passing orders to take into consideration the following:
(a) the charge and statements of allegations served on the accused;
(b) the explanation of the accused;
(c) the fading of the Enquiry Officer or Enquiry Committee; and
(d) the recommendations of the authorized Officer regarding the penalty to be imposed.
' The explanation of the accused referred to in sub-rule (4) of rule 5 cannot mean the preliminary denial or admission of the accused official in terms of clause (b) of sub-rule (1) of rule 6; as at that time all the circumstances and evidence to be marshaled against him during the course of the inquiry are not within his knowledge; and he would acquire know lodge thereof only when the evidence has been led and the Enquiry Officer or Committee has formulated its findings. A proper explanation of the accused Officer in such a case can only be furnished if he is supplied a copy of the Enquiry Report so as to offer his comments in regard to the findings recorded therein, and the action proposed, to be taken against him on their basis."
' It will not be out of context to point out that the Bench which rendered the above judgment comprised Anwarul Haq, C.J. Muhammad Haleem and Nasim Hasan Shah, JJ. (as they then were).
The ratio decided of the a boy judgment is attracted to the case in hand. In this view of the matter, the view found favor with the Courts below seems to be in consonance with the above judgment rendered by this Court in the case of Syed Mir Muhammad (Supra) and, therefore, does not call for interference.
' The omission to supply a copy of the enquiry report to respondent No,1 has caused him material prejudice. The show-cause notice and the charge-sheet were sent to respondent No,1 at Saudi Arabia. There is nothing on record to in4icate that the same were received by him. He reported for duty on 10-12-1984 before the finalization of the enquiry. He was not taken on duty. If he would have received a copy of the enquiry report, he would have a chance to submit his explanation at least once as the enquiry, proceedings were ex parte. If an accused employee is entitled to a copy of the enquiry report under the rules, he does not forfeit his above right simplicitor for the reason that the enquiry proceedings were ex parte. . The employer should make efforts to serve a copy of the enquiry report on the accused employee at his last address available on the employer's record.
Once such efforts are made, non-service of the same without any fault on the part of the employer will not render the enquiry proceedings defective.
' The judgment in the case of A Ghani Sayeed v. National Bank of Pakistan (Supra) does not seem to have correctly interpreted Rule 39 (3) of the Rules.
12. We may now revert to the other submissions made by the learned counsel for respondent No,1.
His submission that since the dismissal order dated 10-2-1985 purported to be retrospective in effect i,e, with effect from 12-5-1983, the same was not sustainable, seems to have, force. He has referred to the case of Noor Muhammad v. The Member Election Commission, Punjab and others (1985 SCMR 1178) and the case of Mian Munawar-ud-Din v. The Federation of Pakistan through Secretary, Ministry of Federal Communication, Islamabad (PLD 1979 Lahore 699). .
' In the first case this Court, while declining leave to appeal in an election matter which involved disqualification of the candidate, held that the order purporting to give retrospective effect to order of removal from service was patently unlawful and void and could not be given effect to. Reliance was placed on the case of Noor Muhammad v. Muhammad Abdullah and others (1984 SCMR 1578), the case of Dr. Muhammad Abdul Latif v. The Province of East Pakistan and others (PLD 1964 Dacca 647) and the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236).
' Whereas in the above second case a learned Single Judge of the Lahore High Court, while dealing with a service matter, held that the executive orders cannot be applied or enforced retrospectively.
13. Kh. Muhammad Farooq, learned A.S.C. Appearing for the appellants, has candidly brought to our notice the following judgments:--
(i) The Province of Punjab v. Khan Khaliq Dad Khan (PLD 1953 Lahore 295);
(ii) Noor Muhammad v. The Member Election Commission, Punjab and others 1985 SCMR '1178; and
(iii) Ali Khan v. Director of Schools and 2 others (1983 PLC (C.S.) 63).
' In the above cases also it has been held that the order of dismissal cannot operate retrospectively nor the order of suspension.
' If this would have been the sole defect in the impugned order of dismissal, the Courts below or this Court could have modified the order by providing that the same would take effect from the date of service on respondent No,1. However, since the above impugned order has not been maintained on the above discussed ground, it is not necessary to modify the same.
13. As regards Mr. M. Asghar Malik, learned A.S.C. For respondent No,1's contention that since Enquiry Officer was not examined by the appellants, the enquiry report and consequential order of dismissal pursuant thereof were not sustainable. It may be observed that to reinforce the above submission he has referred to the case of Messrs.' Souvenir Tobacco Co. Ltd. v. Sindh Labor Court No,2 and others (1987 P.L.C. 605), in which a Division Bench of the High Court of Sindh (though shown as S.B. Case >in the above report) maintained the judgments of the Courts below and in which inter alia it was held that the omission to examine the Enquiry Officer in support of his enquiry report and to rebut allegations of partiality and misconduct was fatal. . We may state that as a general proposition of law, it cannot be held that in every case in which Enquiry Officer is not examined in support of the enquiry report, the same would be fatal to the maintainability of the order passed pursuant to such an enquiry report. It will depend on the facts of each case. If there are serious allegations against the Enquiry Officer as to his impartiality and in support of such allegations, the accused employee has brought some reliable material before the first Court, it becomes incumbent on the employer to produce the Enquiry Officer in order to rebut the evidence brought on record as. To the partiality of the Enquiry Officer. In the instant case nothing has been brought on record to indicate even remotely that the Enquiry Officer in question was, in any way, prejudiced or partisan. In this view of the matter, it was not necessary to have examined the Enquiry Officer. .
14. Referring to Mr. M. Asghar Malik'i submission that since this Court in an unreported judgment dated 15-1-1992 in the case of National Bank of Pakistan through General Attorney (Zonal Head) v.
Punjab Labor Court No, 8 Multan and 2 others (Civil Appeal No, 304 of 1990), has held that the National Bank Rules of 1980 had no statutory force for want of approval of the Federal Government, the action under the same stood vitiated. At may be mentioned that same view was taken by a Division Bench 'the High Court of Sindh in the case of National Bank of Pakistan v. Sindh Labor Appellate Tribunal and 2 others (1990 PLC 593). Reference may also be made to the judgment of this Court in the case of National Bank of Pakistan' and another v. Punjab Labor Appellate Tribunal and 2 others (1992 PLC. 415), in which it was held that 1980 Rules had no statutory force for want of prior approval of the Federal Government.
' This point was not taken by respondent No, 1 before the Courts below. It is not known as to whether after the above decision of this Court the appellants had obtained sanction/approval of the Rules from the Federal Government. We would, therefore, not like to comment upon the above contention.
15. The upshot of the above discussion is that the appeal is dismissed, but there will be no order as to costs.