ZIA MAHMOOD MIRZA, J.--This appeal by leave of the Court is directed against the judgment of the Lahore High Court dated 10-7-1993 whereby writ petition filed by the respondent-Company was accepted, judgment of the. Punjab Labour Appellate Tribunal allowing the appeal of the present appellant set aside and that of the Labour Court dismissing the appellant's grievance petition restored and consequently the writ petition filed by the appellant for payment of back benefit was dismissed.
2. Leave to appeal was granted in this case to consider whether the appellant "was provided a fair opportunity of hearing and leading defence, so as to fulfil the requirement of the principles of natural justice".
3. Facts relevant for the disposal of this appeal, briefly stated, are that the appellant Mujahid Hussain Shah was an employee of the respondent-- Company and Joint Secretary of K.S.B.
Employees' Association, the C.B.A. Union. He was charge-sheeted by the management on 18-6- 1980 on the allegations that on 24-5-1990 at 7-10 a.m, he incited the workers to go on illegal strike, addressed an illegal assembly of workers raising provocative and defamatory slogans against the management and that he repeated this conduct on 25th, 27th, 28th and 31st May, 1990. He was informed that the alleged acts constituted misconduct within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which may entail his dismissal from service.
4. The appellant in his reply denied the allegations levelled against him and sought to explain that he and other office-bearers of the union were being victimized for trade union activities. The reply of the appellant was not found satisfactory and an enquiry was ordered to be instituted against him which was held and the Enquiry Officer found him guilty where after he was dismissed from service on 2-9-1990 with immediate effect.
5. The appellant filed a grievance petition under section 25-A of the Industrial Relations Ordinance in the Labour Court to assail the order of his dismissal on the ground, inter alia, that he had no confidence in the Enquiry Officer (Syed Kazim Hussain Kazmi, Advocate) appointed by the management and requested for his replacement but the request was turned down and he joined the enquiry under protest, that the General Manager, Production, who passed the order of his dismissal had also provided the list of witnesses to the Enquiry Officer; that on 10-8-1990, he requested the Enquiry Office:, to adjourn the enquiry as the workers were agitating against the illegal deduction of their wages. The enquiry was not adjourned but postponed on1v till 11-00 a.m.
He presented himself before the Enquiry Officer at 11-00 a.m. But was not allowed to participate in enquiry which was held ex parte against him. He made an application to the S.A to G.M., Production on 27-8-1990 making a complaint that the Enquiry Officer had held ex parte enquiry against him but no reply to the application was received by him, that after his dismissal he applied for copies of enquiry report and enquiry proceedings but the same were not provided to him. He was also not given second show-cause notice before the dismissal order was passed against him though there existed a practice to serve such notice on the employee before passing his dismissal order and that he was dismissed from service on account of his trade union activities and the allegations made against him were false. The respondent --company resisted the grievance petition by controverting the averments made therein.
6. Both the parties adduced evidence in support of their respective contentions. The Labour Court on appraisal of the evidence led by the parties found that the appellant had participated in the enquiry. Three witnesses were examined in his presence whom he had cross-examined and then the enquiry was adjourned to 10-8-1990. On that date, at the request of the appellant, the Enquiry Officer postponed the proceedings till 11-00 a.m. But the appellant failed to turn up at the appointed the. According to the Labour Court, the appellant could not prove that he had appeared before the Enquiry Officer at 11-00 a.m. In these circumstances, the Enquiry Officer was left with no option but to proceed with the enquiry. The appellant's objection about the appointment of Syed Kazim Hussain Kazmi as an Enquiry Officer was also repelled by the Labour Court holding that it was not well-founded. It was found by the Labour Court that the enquiry was properly conducted and sufficient evidence was brought on the record before the Enquiry Officer which proved the charge against the appellant and he failed to rebut the evidence. With these findings, the grievance petition was dismissed by the Labour Court vide judgment dated 25-7-1991.
7. The appellant preferred an appeal which was allowed by the Punjab Labour Appellate Tribunal vide judgment dated 13-11-1995 holding that the only witness i.e. P.W. Who gave direct evidence against the appellant and supported the prosecution case before the Enquiry Officer was not examined in the presence of the appellant and the request of the appellant to be produce evidence in defence was turned down which rendered the enquiry proceedings defective. Yet another defect pointed out by the learned Appellate Tribunal was that the officer (Mr. Pervaiz lqbal Moghal) who passed the order of the appellant's dismissal had given the list of prosecution witnesses to the Enquiry Officer and had thus acted as prosecutor. In the view of the Tribunal, "the appellant was thus prejudiced. A prosecutor cannot at as an authority to decide the fate of the person who is alleged to have committed misconduct". On these to grounds, the learned Tribunal accepted the appeal and setting aside the order of the appellant's dismissal directed his reinstatement in service but without back benefits. The Tribunal held that the appellant was not entitled to back benefits "since he succeeds more or less on technical points".
8. Feeling aggrieved, the respondent-Company invoked the Constitutional jurisdiction of the High Court. The learned Judge in the High Court after perusing the order-sheet recorded by the Enquiry Officer held that there was nothing to indicate that the Enquiry Officer was biased against the appellant. "He rather provided full opportunity to the respondent to cross-examine the witnesses and even granted adjournments as per his requests". It was further observed by the learned Judge that on the day the ex parte proceedings were ordered against the appellant, he had himself "sought the for about an hour but then disappeared and neither on that date nor on the subsequent dates came forward with any explanation or application to the Enquiry Officer for setting aside the ex pane order or for providing opportunity to cross-examine the witnesses". It was held that the view taken by the Appellate Tribunal that the application for producing defence evidence should have been granted was without any valid basis as "There is no such application or request on the record". The learned Judge observed that the appellant when appearing as a witness before the Labour Court referred to his application dated 27-8-1990 (Exh.P-10) which perhaps was considered by the Appellate Tribunal as an application seeking opportunity to lead defence evidence although no such prayer was made in this application. The second ground taken by the Tribunal for setting aside the order of the appellant's dismissal was also held to be devoid of any legal force. The learned Judge observed that the mere fact that Mr. Pervaiz lqbal Moghal had prepared and signed the list of witnesses would not make him the prosecutor particularly when the proceedings before the Enquiry Officer were in fact conducted by Mr. Javaid, another employee. In this view of the matter, the learned Judge held that the order of the learned Appellate Tribunal was not passed on any valid ground and was thus not sustainable. The same was accordingly set aside and the judgment of the Labour Court restored with the result that the appellant's writ petition seeking back benefits was dismissed and that of the respondent-Company allowed. .
9. We have heard the learned counsel for the appellant as also the learned counsel appearing for the respondent-Company at considerable length. Learned counsel for the appellant contended that the Enquiry Officer acted illegally in proceeding ex parte against the appellant. According to the learned counsel, on resumption of the proceeding after postponement, the appellant had appeared before the Enquiry Officer at the fixed the and was informed that the enquiry would be held subsequently but no notice of the proceedings was given to him thereafter. It was next contended that the appellant applied for an opportunity to lead defence evidence before the order of his dismissal was passed but he was not granted such an opportunity. Learned counsel also made a grievance that the appellant was not given second show-cause notice before his dismissal to which he was entitled as per the established departmental practice. Learned counsel pointed out that the appellant stated before the Labour Court that it was the departmental practice to issue second show-cause notice in the disciplinary proceedings and his statement was not challenged in cross-examination. During his submissions, learned counsel also took exception to the appointment of Mr. Kazmi, Advocate as the Enquiry Officer who, it was stated, was closely associated with the management of the respondent-Company and was thus incapable of holding fair and impartial enquiry. Learned counsel pointed out that the appellant had objected to the appointment of Mr. Kazmi through a written application in which a request was made for the appointment of some unbiased and impartial Advocate for conducting the enquiry but this request was turned down. For all these reasons, the learned counsel argued, the enquiry held and the action taken against the appellant stood vitiated. In support of his submissions, learned counsel placed reliance on (i) Khan Bahadur v. Deputy Inspector-General of Police, Pakistan Railways Headquarters, Lahore and another 1990 SCMR 1241, (ii) Muhammad Ikram Shah v. Member (Customs), Central Board of Revenue and another 1990 SCMR 1701, (i.e) Major Muhammad Nawaz v.
Pakistan through Secretary, Communications, Government of Pakistan, Islamabad PLD 1970 Lahore 811, (iv) Islamabad Club v. Punjab Labour Court No.2 etc. PLb 1980 Supreme Court 307, (v) Mrs. Anisa Rehman v. P.I.A.C. And another 1994 SCMR 2232 Headnote (d) and (vi) I.A. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041.
10. Learned counsel appearing for the respondent-Company took an objection that the point being raised regarding the appointment of Mr. Kazmi, Advocate as Enquiry Officer was not raised pressed by the appellant either before the learned Appellate Tribunal or in the High Court. Similarly, the appellant made no grievance about the second show-cause notice before the Appellate Tribunal or the High Court. He was, therefore, precluded for agitating these questions in this Court. Even otherwise, these points, it was contended, were devoid of any merit. Reference was made by the learned counsel to (i) Nazir Ahmad v. The Government of West Pakistan through its Secretary of Services and General Administration Department, Lahore and 3 others PLD 1973 Lahore 259, (ii)
Dawood Cotton Mills Limited v. Guftar Shah PLD 1981 SC 225 and (i.e) Sarfraz v. General Manager (Leaf), Pakistan Tobacco Company Ltd. And others 1988 SCMR 1352. Dealing with the appellant's grievance about the ex parte proceedings ordered against him by the Enquiry Officer and failure of the authorities to grant him an opportunity to lead defence evidence, learned counsel for the respondent submitted that the grievance made and the pleas taken by the appellant were not borne out from the record, which it was contended, was misread by the Appellate Tribunal.
11. Taking up first the question of Mr. Kazmi's appointment as Enquiry Officer which it was stated was objected to by the appellant, we quite agree with the learned Judge in the High Court that there was nothing on the record to show that the Enquiry Officer was biased against the appellant. As rightly observed by the learned Judge, the Enquiry Officer provided full opportunity to the appellant to cross-examine the witnesses produced by the management and granted adjournments as and when requested by the appellant. Viewed in this background, we find that the objection of the appellant to the appointment of Mr. Kazmi as Enquiry Officer had no valid basis and his request for replacing him by some other person was rightly turned down by the respondent's management.
Needless to observe that the appointment of Enquiry Officer was in the discretion of the employer who, it appears, was not satisfied with the objection taken by the appellant to the appointment of Mr. Kazmi and turned it down, No exception could, therefore, be taken to his decision. Reference may pertinently be made to the 8 case of Nazir Ahmed (supra) cited by the learned counsel for the respondent in which it was held "It was within the discretion of the authorities concerned to transfer or not to transfer the enquiry proceeding and if they were not impressed of the bona fides of the pleas advanced by the petitioner in this behalf, their orders cannot be said to be without lawful authority in any manner". It may also be observed that the objection sought to be taken before us was raised in the grievance petition but was not sustained by the Labour Court holding that it was not well-founded. It appears that the appellant did not press this point any further before the Appellate Tribunal or the High Court. Thus examined from whatever point of view, the contention raised by the learned counsel regarding the appointment of Mr. Kazmi as Enquiry Officer is of no help to him.
12. The other grievance of the appellant i.e. That he was not given second show-cause notice before the penalty of dismissal was imposed on him is also devoid of any substance. He was not entitled to such a notice and it was presumably for this reason that he had not made this grievance before the Labour Appellate Tribunal nor did he agitate it in the High Court. Question whether giving of second show-cause notice is necessary before ordering the dismissal of a workman was examined by - this Court in the aforementioned to cases of Dawood Cotton Mills and Sarfraz v. Pakistan Tobacco Company cited by the learned counsel for the respondent. In the first- mentioned case, while interpreting the provision contained in Standing Order 15(4) of Standing Orders Ordinance, 1968 which in its relevant aspect reads as under:-- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct [x x x x x x x ] and is given an opportunity to explain the circumstances alleged against him, it was held that the provision under consideration only required that the information of the-alleged misconduct be given to the workman concerned and an opportunity be allowed to him to explain the circumstances alleged against him. That is to say, he should be informed of the charges levelled against him as also of the allegations forming the basis of those charges and an opportunity be afforded to him to defend himself by cross---examining the witnesses and by examining himself or any other witness in support of his defence. The view expressed on the moot point was that neither the giving of the second show-cause notice nor the supply of the report of the Enquiry Officer was a requirement of the rules of natural justice nor could these requirements be spelt out from the provision of Standing Order 15(4) as worded. This view was reiterated in the case of Sarfraz v. Pakistan Tobacco Company with the observation that the question whether such a requirement was necessary considering the element of prejudice was to be resolved on the facts and circumstances of each case. The cases relied upon by the learned counsel for the appellant are also of no help to him because in none of them, the disciplinary proceedings and the penalty imposed on the basis thereof were struck down on the ground that second show-cause notice was not given to the employee/workman concerned. Even otherwise, the cases reported in 1990 SCMR at pages 1241 and 1701 and the case of Major Muhammad Nawaz PLD 1970 Lah. 811 are distinguishable as the appellants/petitioners in all these cases were civil servants who were proceeded against under Government Servants (Efficiency and Discipline)
Rules. Apart from that, the grievance of the appellants in the to cases reported in 1990 SCMR 1241 and 1701 related to the non-supply of enquiry report and not of second show-cause notice. Be that as it may, it was held in the case of Muhammad Ikram Shah (reported at page 1701) that the supply of a copy of the enquiry report was not the requirement of any express provision of law nor was it a requirement of principle of natural justice as on the facts of that case, no prejudice was caused or could be caused to the appellant therein. Similarly, in the case reported at page 1241 of 1990 SCMR, it was held that as the charges levelled against the appellant were 'factual, simple and straightforward', he had sufficient opportunity to ascertain the result of the enquiry and no prejudice was, therefore, caused to him by non-supply of the enquiry report. Again, in the case of Major Muhammad Nawaz, the point at issue was not merely not giving of second show-cause notice. In fact, in that case, no enquiry at all was held in the presence of the petitioner. The Enquiry Officer was held to be a biased person and it was found that he had merely acted upon the basis of an ex parte preliminary enquiry held by another enemy of the petitioner. Yet another defect noted therein was the non-supply of statement of allegations which it was held was not only violative of a mandatory rule but also caused prejudice to the petitioner as the charges levelled in the charge-sheet were shorn of all details and the petitioner was thus deprived of the information as to the basis on which the charges had been framed against him. The decision in the case of Islamabad Club PLD 1980 SC 307 also turned on the prejudice caused to the employee as a result of non---supply of the copy of the enquiry report. He was giving notice of only one misconduct but the Enquiry Officer recorded finding on matters not included in the charge-sheet which findings, it was observed, must have influenced the mind of the authority awarding punishment of dismissal.
In the circumstances, it was held that the copy of the enquiry report should have been furnished to the employee so as to enable him to rebut the findings recorded therein. Case of Mrs. Anisa Rehman 1994 SCMR 2232, to, was not a case of want of second show-cause notice. In that case, no notice at all was issued to the employee nor was she given any opportunity of hearing. The employer was accordingly held to have violated the principles of natural justice in taking the impugned action. The case of I.A. Sharwani 1991 SCMR 1041 cited by the learned counsel for the appellant appears to have no relevance to the questions agitated by him."
13. In view of the foregoing discussion, we hold that the giving of sect ad show-cause notice after the completion of the enquiry was not the requirement of law governing the disciplinary proceedings initiated against the appellant nor was it the requirement of principles of natural justice. The appellant was duly informed of the charge he had to face and the allegations forming the basis of the charge were set forth with all the details in the charge-sheet served on him. He also knew that the charge if proved would entail his dismissal from service. It was so stated in the, charge-sheet. Three of the witnesses produced by the management were examined in his presence and he fully cross-examined them. In the circumstances, non-issuance of second show- cause notice could not be said to have caused any prejudice to the appellant. As regards the appellant's plea that there existed a practice in the respondent-Company to give second show- cause notice to its employees before taking disciplinary action against them, suffice it to observe that this plea though taken in .The grievance petition was not raised by the appellant before the Labour Appellate Tribunal nor agitated/pressed in the High Court. He cannot, therefore, be permitted to raise it in this Court particularly when it involves factual controversy. It may pertinently be pointed out that while the appellant led evidence to show that second show-cause notice was issued to to employees, the Admin. Officer of the respondent-company appearing as R.W.2 categorically denied that there existed any practice of giving second show-cause notice.
14. Adverting now to the appellant's grievance about the ex parte proceedings ordered against him by the Enquiry Officer and the failure of the authorities to grant him an opportunity to lead evidence in defence, we find from the record that on the day the ex parte proceedings were ordered against the appellant i.e. On 10-8-1990, it was at his request that the enquiry was adjourned up to 11-00 a.m. But he did not turn up at stipulated the. C. The Enquiry Officer waited for him and passed ex parte order at 12-00 noon and adjourned the case to 13-8-1990 'for ex pane evidence. The appellant neither appeared at the appointed the nor thereafter on that day. He did not come forward even on the following day or on any subsequent date nor did he care to appear before the Enquiry officer on 13-8-1990 when the statement of Muhammad Ashraf, the last witness of, the management, was recorded. It was submitted by the learned counsel for the respondent and not denied on behalf of the appellant that the Enquiry Officer submitted his report/findings to the c6mpetent Authority on 21-8-1990. During all this period, the appellant never appeared before the Enquiry Officer nor did he move any application for setting aside the ex parte proceedings nor sought an opportunity to cross-examine the witness examined in his absence. He, however, moved an application addressed to S.A. To G.M. (Production) on 27-8-19:90 but even in that application, no request was made for setting aside the ex parte order or for allowing him to cross-examine the said witness or to lead the evidence in defence. In view of this conduct of the appellant, he cannot make any legitimate grievance against the ex parte proceedings taken against him. It appears that he deliberately boycotted the enquiry proceedings. Otherwise, he could well have appeared before the Enquiry Officer on any day between 10-8-1990 and 13-8-1990 or on any date up to 21-8- 1990 and requested for setting aside the order for ex parte proceedings which he did not do. It may pertinently be observed that even the Labour Appellate Tribunal found no defect in the order of the Enquiry Officer for proceeding ex parte against the appellant. The only defect in the enquiry proceedings pointed out by the learned Appellate Tribunal was that the request of the appellant to produce evidence in defence was turned down which according to the Tribunal should have been accepted. This finding, in the view of the High Court, was based on misreading of record and we uphold that view. Learned Judge was right in observing that in his application dated 27-8-1990 (Exh.P-10), the appellant had not made any prayer for permission to lead defence evidence. There was thus no question of granting him an opportunity to lead evidence in defence.
15. Upshot of the above discussion is that we find no merit in this appeal which is dismissed but with no order as to costs.