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Constitutional Petition No.D‑713 of 1977, decided on 10th March,1984.

‑‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art.199‑‑Domestic inquiry‑ Close cross‑examination of employee by inquiry officer at very commencement of inquiry before other evidence, held, not fair‑‑Employee charge‑sheeted for misconduct stoutly denying charges leveled against him‑‑Instead of adducing evidence in first instance inquiry officer commencing proceedings with a very close examination of employee and nature of question put to him indicating that he was being cross‑examined and answer sought to be solicited in support of allegations made by employer‑‑Conduct of inquiry officer, held further, constituted a very serious infirmity‑‑When employee was totally denying allegations made against him it was duty of employer to produce evidence in first instance to substantiate its allegations and permit employee to cross‑examine those witnesses and also permit him to let in evidence in defence of his plea‑‑In event of denial of allegation by employee burden of proving truth thereof held lies on employer.

‑‑‑ Domestic inquiry‑‑Rules of natural justice to be observed in conduct of domestic inquiry agianst employee.

‑‑‑S. 25‑A‑‑Karachi Port Trust Officers and Servants (Efficiency and Discipline, Rules 1969, r.6‑A(3)‑‑Constitution of Pakistan (1973), Art.199 ‑‑Domestic inquiry‑‑Reduction in rank‑‑Employee was examined in first instance and witnesses on behalf of employer examined thereafter‑‑No opportunity afforded to employee to cross‑examine those witnesses or to lead evidence in rebuttal‑‑Rules on subject as well as rules of natural justice, held, violated‑‑Domestic inquiry invalidated and order of reduction in rank of employee not justified on basis of such domestic inquiry‑‑Orders set aside.

‑‑‑S.25‑A‑‑Karachi Port Trust Officers and Servants (Efficiency and Discipline)Rules, 1969, r.6‑A(3)‑‑Constitution of Pakistan (1973), Art.199‑‑Personal hearing‑‑Contention that employee appearing before inquiry officer and admitting guilt before him and that giving further opportunity of personal hearing would be a mere formality‑‑Held, in conducting inquiry, Inquiry Officer in interest of justice and fair play has to observe principle of natural justice by affording a reasonable opportunity of being heard and of adducing evidence to refute allegations made against employee.‑‑[Natural justice, principles of].

‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art.199‑‑Domestic inquiry‑ Admission of guilt by employee‑‑To appreciate correct import of any state ment or document it should be read as a whole‑‑No reliance, held, can be placed on any part of statement by picking it out of its context.

‑‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art.199‑‑Domestic inquiry ‑‑Reduction in rank‑‑Order of reduction in rank of employee based on a void inquiry report‑‑Order, held, cannot have any legal effect.

‑‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art.199‑‑Employee afforded no opportunity to cross‑examine witnesses produced against him‑‑Orders passed

against employee, held, void in law.

‑‑‑ Order passed in violation of principles of natural justice, held, void.

Jhon v. Rees 1969 2‑A.E.R. 274 and P L D 1971 S C 61 rel.

‑‑‑A void order, held, no order in eye of law and it does not exist.

‑‑‑ Case law‑‑Where law laid down differently in two different decisions of Supreme Court by Benches of different strength, decision of larger Bench, held, shall be followed as binding decision on subject.

Rahim Shah's Case P L D 1974 S C 139; P L D 1973 S C 24 and Irshad Ahmed v. The Settlement Authority 1981 S C M R 758 rel.

Obaidur Rehman for Appellant.

Abbas Ahmad for Respondent No.2.

Date of hearing: 31st January,1984.

‑ This petition under Article 199 of the Constitution of Islamic Republic of Pakistan has been filed against the order dated, 26th July,1977 passed by the Sind Labour Appellate Tribunal, respondent No.1, in Appeal Nos.Kar‑211 of 1977 and Kar‑223 of 1977 filed under section 37(3) of the I.R.0 by the Karachi Port Trust, respondent No.2 and by the petitioner.

2. The facts which give rise to this petition briefly stated; are that the petitioner was employed as Master‑I Class drawing Rs.660 per month with the respondent No.2. On or about 27th May,1974, the petitioner was served with an order of suspension, dated 25th May,1974, and he was charge‑sheeted on 19th August,1974 for misconduct, namely, (i) on 25th May,1974 he entered in the room of Mechanical Engineer Mr.A.Rahim and misbehaved him and tried to assault him, and (ii) charge of insubordination. The petitioner submitted a detailed reply to the aforesaid charge‑sheet wherein he emphatically denied the allegations contained in the charge sheet. The explanation of the petitioner was not considered satisfactory by the respondent No.2 which ordered a domestic enquiry be held against him. The enquiry was held by Mr.M.Rashid Choudhri (Harbour Master), who submitted a report on 4th November,1974 with a finding that, the petitioner was guilty of the charge of misconduct. On the basis of the said report, second show‑cause notice was served to the petitioner. The petitioner submitted reply to the second show‑cause notice. The Chairman of the respondent No.2, by his order, dated 18th July,1975, ordered the reduction to Master II‑Class with effect from 16th July, 1975.

3. The petitioner preferred an appeal to the respondent No.2 which was rejected on the ground that there is no provision of appeal under the K.P.T. Act. Accordingly the petitioner challenged the order through a grievance petition and he was not favoured with the reply of the grievance notice. He filed an application under section 25‑A of I.R.O., 1969, in the Junior Labour Court No.IV, Karachi, which was ultimately transferred to the Vth Sind Labour Court. The petitioner filed additional affidavit and the grievance of the petitioner therein was that the enquiry was not properly and impartially held, he was first examined and thereafter other witnesses were examined and he was not given sufficient opportunity to defend himself and the findings of the enquiry officers are not based on evidence and also based on extraneous considerations. The respondent No.2 resisted the additional affidavit on the grounds that the petitioner did not raise these objections in the reply submitted to the second show‑cause notice, in the grievance notice and also in application under section 25‑A of the I.R.O. The learned Labour Court disagreed with the objections of the respondent No.2 and accordingly, it set aside the order of reduction and directed the respondent No.2 to hold a fresh enquiry and did not allow the back benefits to the petitioner.

4. Aggrieved by the order dated 22nd June,1977 of the learned Sind Labour Court No‑V, both the parties filed appeals under section 37(3) of the I.R.O., 1969 before respondent No.1 who allowed the appeal of the respondent No.2 and dismissed the appeal of the petitioner by his order, dated 26th July, 1977.

5. Aggrieved by the aforesaid order the petitioner has filed this Constitutional Petition.

6. We have heard Mr.Obaidur Rehman, learned counsel for the petitioner, and Mr.Abbas Ahmed, learned counsel for the respondent No.2.

7. Mr.Obaidur Rehman has raised the following contentions:‑

(i) The petitioner was not allowed reasonable opportunity to defend himself.

(ii) At the commencement of the enquiry it was closely cross‑examined by the enquiry officer and thereafter other witnesses were examined.

(iii) The enquiry officer based his finding on extraneous consideration also.

8. As regards the contentions Nos.1 and 2 are concerned, it is clear from the enquiry proceedings that the petitioner was examined 'on 24th August,1974 in the first instant and he was cross‑examined to elicit points in support of the charges. The respondent No.2 then examined Messrs A. Rahim, Muhammad Shamim, Deen Muhammad and Ahmed Abu Bakar on 30th June, 1974.

9. On the other hand, Mr.Abbas Ahmed, the learned counsel for the respondent No.2 has contended that, the petitioner has not stated these objections in the reply to the second show‑cause notice in the appeal, in the grievance notice and even the application under section 25‑A of the I.R.O., 1969. He raised the plea in the additional affidavit. We have perused the record of proceedings of the Sind Labour Court, it is clear from the record that the petitioner was cross‑examined on this point.

10. It seems to.us that it is not fair in domestic enquiries against employees that at the very commencement of the enquiry, the employee should be closely cross‑examined by the enquiry officer even before any other evidence is held against him. We are of the opinion that in this, case the respondent No.2 charge‑sheeted him with misconduct. The petitioner stoutly denied the charges leveled against him as alleged by the respondent No.2. Under these circumstances, instead of adducing evidence in the first instance the enquiry officer commenced the proceedings with a very close examination of the petitioner. The nature of the questions put to him also clearly indicated that he was being cross‑examined and answer sought to be solicited in support of the allegations made by the respondent No.2.

11. We are of the opinion that the conduct of an enquiry in this manner constitutes a very serious infirmity. In the instant case when the petitioner was totally denying the allegations made against him, it was the duty of the respondent No.2 to produce evidence in the first instant to substantiate its allegations and permit the petitioner to cross‑examine those witnesses and also permit him to let in evidence in defence of his plea. We are not inclined to agree with the reasoning of the respondent No.1 that these pleas were never made at proper stages and could not be taken into consideration.

12. We must, however, emphasise that the rules of natural justice as laid down by the superior Courts, will have to be observed in the conduct of a domestic enquiry against an employee. If the allegations are denied by the employee, it is needless to state that the burden of proving the truth of those allegations will be on the employer and the witnesses called by the employer must be allowed to be cross‑examined by the employee, and the latter must also be given an opportunity to examine himself and) adduce any other evidence in support of his plea.

13. Mr.Abbas Ahmed, the learned counsel for the respondent No.2 has contended that, the domestic enquiry held by the respondent No.2 culminating in the reduction to the post of Master II‑Classes of the petitioner was a proper enquiry conducted in accordance with the principles of natural justice and in confirmity with sub‑rule (3) of rule 6‑A of the K.P.T. Officers and Servants (Efficiency and Disipline, Rules. If the domestic enquiry was in breach of the requirements of the said rules or violation of the principles of natural justice, (it would be violated) the major penalty i.e. reduction to a lower grade of the petitioner consequent upon it must be invalid. The Sind Labour Court as already pointed out, found the infirmities in the domestic enquiry. We are of the view that the domestic enquiry was invalidated because the petitioner was examined in the first instance and the witnesses on behalf of respondent were examined after his examination and no opportunity was afforded to him to cross-examine thereon and to lead evidence in rebuttal.

14. We are of the opinion that there was not only non‑compliance with the requirements of sub‑rule (3) of rule 6‑A of the K.P.T. officers and servants (Efficiency and Discipline) Rules but also infraction of the principles of natural justice. The order of reduction passed against the petitioner could not be justified on the basis of the domestic enquiry.

15. Mr.Abbas, the learned counsel for the respondent No.2 has submitted that, the petitioner appeared before the enquiry officer and he admitted his guilt and, therefore, it would have been a mere formality for the enquiry officer to have given the petitioner another opportunity of having his say in the matter. In rejecting this argument, we cannot do better than to quote a paragraph from the judgment of Meggary J. in Jhon v. Rees (1969)2 A E R 274 at page 309 of the report, the learned Judge observed as follows:‑

"It may be that there are some who would decry the importance which the Courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force every body to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a charge. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

16. Sub‑rule (3) of rule 6‑A of the K.P.T. Officers and Servants (Efficency and Disipline) Rules, 1969, provides that enquiry officer shall hold an oral enquiry at which oral evidence shall be heard as to such of the allegations as are not admitted and the employee shall be entitled to cross‑examine the witnesses against him and to give evidence in person and to have such witnesses call for the defence as he may wish.

17. The petitioner does not seem to have admitted the charges. To appreciate the correct import of any statement or document it has to belt read as a whole and no reliance can be placed on any part of the statement by picking it out of its context.

18. We have no hesitation in holding that in conducting the enquiry, the enquiry officer has, in interest of fair play, to observe the principles of natural justice by affording the petitioner a reasonable opportunity of being heard, and of adducing evidence before him to refute the allegations of the misconduct.

19. The reduction order is based on the enquiry report. If the initial report is void an order of reduction cannot make it valid. The reduction it order cannot have any legal effect because that which is valid can be accepted and not that which is void.

20. It will be noticed that the requirement of rule is that the employee has to be afforded opportunity to cross‑examine the witnesses. In the instant case the evidence of the witnesses was recorded on 30th" August, 1974 and no opportunity was afforded to cross‑examine them. Their Lordship of the Supreme Court had the occasion to interpret the requirement of similar provision made in sub‑clause (5) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act in a case reported in P L D 1971 S C 61, after reviewing the case law on the subject held:‑

"Bearing these principles in mind, I have reached the conclusion that sub‑clause (5) of section. 20 of the Act is mandatory in character and places a limitation on the jurisdiction of the revising authority not to make any adverse order against a person without giving him opportunity to show cause against it. If such an order is made without fulfillment of this pre‑requisite, it would certainly lack jurisdiction.

The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well‑founded when the grievance is made to rest on the principle of natural justice, viz., audi alteram partem (nobody is to be condemned unheard), but when, as already stated above, an absolute requirement of the statute has been defied, the order passed is a nullity. It was held by this Court in the case of Yousaf Ali v. Muhammad Aslam Zia as follows:‑

"If on the basis of a void order, subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with superstructure of rights and liabilities built upon them, must, unless some statute or principle of law, recognising as legal the changed position of the parties, is in operation, fall to the ground, as such orders have as little legal foundation as the void order on which they are founded."

21. The decision applies with full and equal force to the case of the petitioner before us. We, .therefore, following the view taken by their Lordships of the Supreme Court, have no hesitation in reaching the conclusion that the impugned order passed against the petitioner is void in law. An order void in law by virtue of violation of principles of natural justice is nevertheless void. A void order is no order in law and it does not exist.

22. Mr.Abbas Ahmed, the learned counsel for the petitioner has contended that, the petition under Article 199 is incompetent as the decision of appellate Court cannot be interfered under Article 199 of the Constitution and in support of his arguments he relied on P L D 1974 S C 139. This was decided by a Bench comprising of three Judges of the Supreme Court, whereas the Bench which decided the case of Rahim Shah's case P L D 1973 S C 24 consisted of full Court held at page 35.

"High Court will interfere if the act done or the proceedings undertaken is in violation of law or any established principle of law. The term 'law' is not confined to 'statute' and in holding the inquiry the superior Courts are not restricted to an examination of record of the case. The Court may even record evidence to determine the legality of the act done or the proceedings undertaken."

23. Normally, the rule is that where the law is laid down differently in two different decisions of the Supreme Court by Benches of different strength the decision of the larger Bench shall be followed as the binding decision on the subject.

24. Their Lordship of the Supreme Court in the case of Irshad Ahmed v. The Settlement Authority 1981 S C M R 758, at page 760 observed as follows:‑

"There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by the Deputy Settlement Commissioner which was clearly against the material on record. It is well‑established that ordinarily a finding of fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence whatsoever, or proceeds in disregard of material evidence, then it can be set aside."

The petition is, therefore, accepted. The judgment of the respondent is quashed and the order of the Sind Labour Court is maintained. By a short order, dated 31st January,1984 we have allowed the petition and these are the reasons for the same.

M.Y.H. Petition allowed.

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