Find a Lawyer

Civil Appeal No. 104 of 1981, decided on 4th July, 1982.

(On appeal from the judgment and order dated 7th of April, 1981, of the Lahore High Court in Writ Petition No. 11396 of 1980).

Art. 185 (3)‑Employees Old‑age Benefit Act (XIV of 1976), S. 5 --State Life Employees (Service) Regulations, 1973, regln. 31‑Dismissal of employee‑Leave to appeal ‑granted to consider whether order of dismissal was passed in violation of Service Regulations as adopted.

‑‑ Regln. 31 (2) (i) (iii) ‑ Dismissal of employees ‑ Stage for personal hearing is after charge‑sheet is served and defaulter offers his defence the Enquiry Officer‑Personal hearing not required after report is submitted and there is also no provision available for supply of copy of report to defaulter‑Employee cannot insist for personal hearing at every stage‑Personal hearing of employee in his defence at stage of holding of enquiry is enough‑Principles of natural justice not embodied rules, compliance only needed to extent to which such principles are incorporated in relevant statutes‑Personal hearing, held, cannot be regarded as condition precedent for passing of a final order in circumstances. ‑ [Industrial dispute‑Natural justice, principles of]

Abdul Latif Niazi v. Government of West Pakistan P L D 1967 S C 62 and Ghulam Muhammad v. Collector P L D 1973 Lah. 528 ref.

Constitutional safeguards and other provisions of statutes cannot be pressed into service while construing another statutory provisions which has to be dealt with upon its own language.

Dawood Cotton Mills Limited v. Guftar Shah and another P L D 1981 S C 225 ref

‑ Principles not embodied rules, compliance, held, only needed to extent to which such principles are incorporated in Statutes.

Regln. 31‑Dismissal of employee‑Enquiry report stating that employee was heard‑Employee making no grievance for having not been heard‑Employee not filing list of witnesses nor he express ed his desire to examine witnesses‑Enquiry, held, in presence of employee and care was taken to avoid any prejudice‑Employee supplied with copies of statutes of witnesses recorded in his presence although there was no provision in Regulation for same‑Despite employee's failure to submit his list of witnesses, he was allowed to examine subsequently as many as six defence witnesses‑Held, it cannot be said that employee was, in any way, prejudiced in rebutting prosecution case, in circumstances.‑[Industrial disputes].

Art. 199‑Department accepting evidence with regard to receipt of illegal gratification by its employee‑High Court substituting its own opinion and holding such employee not guilty, held, not appropriate while exercising constitutional jurisdiction ‑ Consti tutional jurisdiction of High Court‑High Court, while exercising Constitutional jurisdiction cannot substitute its own opinion for that of inferior Tribunal having exclusive jurisdiction to decide case of defaulter.

Maulvi Sirajul Haq, Advocate, Supreme Court with M. A. Siddiqui, Advocate‑on‑Record for Petitioners.

Mian Saeedur Rehman Farukh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing : 4th July, 1982.

‑This appeal by special leave, arises from the judgment of the Lahore High Court, Lahore, dated the 7th of Aril, 1981, by which Constitution Petition No. 11396, was allowed and the appellant's order of dismissal dated 11th of April, 1980, was declared as without lawful authority.

2. Leave to appeal was granted to consider whether the order of dismissal was passed in violation of Regulation No. 31 of the State Life Employees (Service) Regulations, 1973, as adopted.

3. The facts which have given rise to this appeal are that under section 5 of the Employees Old Age Benefits Act XIV of 1976, the Federal Government established a body corporate known by the name of the "Employees Old Age Benefits Institution", which was managed by the Board of Trustees of which the first appellant was a Chairman which appellants 2 and 3 were Deputy General Manager and the Deputy Manager of the Institution respectively. The respondent was appointed as an Inspecting Officer of that Institution on 11th of October, 1976 and was duly confirmed in 1978. It was the duty of the respondent to visit indus trial and commercial establishments to ensure faithful observation of the liabilities of the employees under the Act in regard to the contribution payable by them, in respect of the insured persons. In this connection it was alleged that the appellant visited the establishment of a reputed furnishers, namely; Messrs Latif Brothers Limited, which was registered with the Institution and liable to pay the contribution. As to what transpired, appears from the complaint dated 21st of May, 1980, lodged by Messrs Latif Brothers Limited. It was alleged therein that respondent demanded illegal gratification of permanent basis in order to help Messrs Latif Brothers Limited to evade payment of the contribution. It was also said that they were harassed and threatened of serious consequences in case they failed to fulfill his demand. Upon receipt of this complaint, it was decided to trap him on his next visit, i. e. 2nd of June, 1980, to the premises of the Company. On that date he again made an illegal demand which involved a conversation which was tape‑recorded and thereafter the was given Rs. 1,500 in currency notes of Rs.100 each whose numbers were earlier noted. As he was about to leave the premises, he was accosted by the raiding party and currency notes of Rs.1,500 were secured from his diary. The cassette was also taken into possession. This led to the initiation of the enquiry and a charge‑sheet dated 22nd of June, 1980, was served on him, which in essential respects read as under :‑

(i) That you have been demanding illegal gratification from Messrs Latif Brothers at the rate of Rs.1,000 per quarter, threatening the employer to make false case against him that he had filed incorrect declaration of strength of his establishment.

(ii) That on 2nd June, 1980, you in fact visited the office of the employer Messrs Latif Brothers and received payment from the said employer of a sum of Rs.1,500 as an illegal gratification.

While conducting the enquiry, the provisions of Regulation 31 of the State Life Employees (Service) Regulations, 1973, as adopted by the Board of Trustees were observed.

4. In reply to the charge‑sheet an explanation was submitted in which it was stated that the amount recovered from him was paid much earlier to the Company for the purchase of furniture, and in that connection he came to know that the Company was deliberately making short payments about which he had reported to the department for action, and conse quently the Company refused to deliver the, furniture for which he had already made the payment, and it was that money, which he had received back because of the non‑delivery of the furniture. He also stated that this case was concocted with the connivance of M. Aslam Malik, the Deputy Manager of the Institution, who was his enemy as he had earlier made attempts to put him in trouble. This explanation was regarded as flimsy and an Enquiry Officer was appointed to hold an enquiry against him. After the due compliance of the requirements of the Regulation, the Enquiry Officer submitted his report on 23rd of October, 1980 holding him guilty of the charges. Appellant No. 1 on a perusal of the report agreed with the conclusion of the Enquiry Officer and ordered the dismissal of the respondent on 4th of November, 1980. Aggrieved by his dismissal, the respondent without filing the statutory appeal approached the High Court and succeeded in getting the order of his dismissal set aside.

5. The contentions raised before the High Court were, firstly, that the order of dismissal was mala fide as it was passed as a result of collusion between appellant No. 2 and Messrs Latif Brothers Limited secondly, that the petitioner was not provided an opportunity of hearing by the competent authority before the order of his dismissal was passed ; thirdly, that the contents of the complaint were not established as it was withdrawn ; fourthly, that the Enquiry Officer erroneously relied on the complaint which was not proved on record ; and, fifthly that neither any show‑cause notice was issued nor the petitioner was supplied with the copy of the report before the order of dismissal was passed. All these submissions relate to the violation of provisions of Regulation 31, which reads as under :‑‑‑

"31. Procedure for award of punishment.(1) The authority competent to award punishment is the case of an employee shall be the authority competent to make appointment in his case.

(2) For the punishment of dismissal, the following procedure shall be compulsory :‑

(i) A charge‑sheet, alongwith a statement of allegations levelled against the employee, shall be served on him. While serving the charge‑sheet, the employee shall be given reasonable time, not being less than 7 days to produce any evidence in his defence. He will also be allowed to be beard in person if he so wishes.

(ii) An enquiry officer shall be appointed to examine the defence offered by the accused and to give a report thereon indicating whe ther or not the charges made against the employee are established.

(iii) The report of the enquiry officer shall be considered by the competent authority who may accept or reject the report or for reasons to be recorded in writing order a fresh enquiry.

On receipt of final report of enquiry the competent authority shall given his decision. "

6. The High Court held that the respondent was not afforded an opportunity of hearing by the competent authority before ordering his dismissal. In holding so, the High Court was of the opinion that there was violation of clauses (1) and (2) of Regulation 31. In this connection reliance was placed on Ghulam v. Muhammad Collector (P L D 1973 Lah. 528). It was next held that as by section 6(1) of the Employees Old Age Benefits Institution Ordinance, the appellant No. 3 was required to assess the Board during the hearing of the appeal, this was enough to raise an apprehension that the respondent would not get justice as to all intents and purposes his presence would have an influencing effect. Therefore, the appeal was not an adequate remedy so as to bar the jurisdiction of the Court to grant constitutional relief. Lastly, the High Court held that he was not supplied him a copy of the enquiry report and no show‑cause notice was issued to him which failure vitiated the order of dismissal. It was also noted by the High Court that the complaint was withdrawn and the respondent bad made reports against the Company for withholding an amount of Rs.3,52,500. In this view of the matter the High Court held that the money recovered could not be regarded as illegal gratification as no one else heard the conversation taking place between the respondent and the representative of the Company.

7. A plain reading of the Regulation shows that the stage at which personal hearing . is required is after the charge‑sheet is served and the defaulter offers his defence to the Enquiry Officer. There is no requirement of any personal hearing after the report is submitted and there is also no provision for the supply of a copy of the report to the defaulter. Here I may point out that what the High Court held is borrowed from the constitutional safeguards and rules 55 of the Civil Services (Classification and Control) Rules, which cannot be pressed into service while construing another statutory provision which has to be dealt with upon its owner language. In Dawood Cotton Mills Limited v. Guftar Shah and another (PLD 1981 SC 225), a similar question arose while construing section 15(4) of the Commercial Employment (Standing Order) Ordinance, and upon a review of the case law, it was held :‑

"Neither the requirement of the second show‑cause notice nor of supplying a copy of the report of the Enquiry Officer is a require ment of the rules of natural justice."

Therefore, these requirements cannot be read into Regulation No. 31. As for the personal hearing said to have been denied, it is not at every stage that it cash be insisted that the respondent should be heard. It is enough if he is heard at the stage of the holding of the enquiry in his defence. Cornelius C. J., while construing Article 177(1)(b) of the 1962 Constitu tion in Abdul Latif Niazi v. Government of West Pakistan (PLD 1967 SC 62), held :‑

"The requirement of the Constitution is that there should be a reasonable opportunity given to show‑cause as above. In the rule, the emphasis is upon the time interval which might be though reasonable and nothing is indicated as to the manner in which the cause shall be shown, i. e. whether in writing or orally. Since the procedure prescribes a charge and a reply at the cutest, and that, at the enquiry, the official concerned should have the choice of being heard in person (which choice was duly exercised by Abdul Latif Niazi, and a personal hearing was actually given) it seems an excessive requirement that a personal bearing should also in every case be given in relation. to the show‑cause notice."

Here too the Regulation 31 in clause (2), sub‑clause (i) prescribes for personal hearing provided the defaulter indicates his desire to do so. But this requirement cannot be read in sub‑clause (iii) for the simple reason' that the rules of natural justice are not embodied rules and hence compliance is only needed to the .extent to which such rules are incorporated in the statutes. This being so, personal hearing cannot be regarded as a condition precedent for the passing of a final order. The High Court relied on Ghulam Muhammad v. Collector (1), for reaching the conclusion that before the order of dismissal is passed the respondent was entitled to a personal bearing. This is not the ratio decided of this case. This decision merely embodies a rule of interpretation that where the statute is silent the rules of natural justice should be read in them as no one can be condemned unheard. Again the High Court has misread section 6(1) of the Employees Old Age Benefits Act, 1976, as to provide an influencing factor during the hearing of the appeal. This is not the purport of this provision as by its language it vests the management in the Board with a rider that while exercising its functions, it shall do so with the assistance of the head of the Institution as the Board of‑ Trustees can act only through an agent while managing the affairs of the Institution. It by no means conveys the impression as conceived by the High Court that it enjoins the head of the Institution to render assistance at the hearing of the appeal. Here I may point out that. the Board of Trustees in pursuance of the powers conferred by section 44 of the Act have made Regulations called the Employees Old Age Benefits (Determination of Wages for Compensation of Contributions) Regulations, 1980. Regulation 33 of these Regulations provides for an appeal against punishment imposed under Regulation 20 and also gives the right to the defaulter to be heard in person if he so desires. There is no stipulation for the head of the Institution to assist the authority competent to hear the appeal. This Regulation being specific in application will govern the case in preference to any other provision, if any, in the Act.

Likewise Regulation 33 of the State Life Employees (Service) Regula tions, 1973, governs appeals filed by defaulters. It is also couched in almost the same language ; and as the. proceedings were initiated before the promulgation of Employees Old Age Benefits (General) Regulations, 1980, it was this provision which was applicable. Legally this provision supervened section 6(1) of the Act. Thus there was an effective remedy by way of an appeal. Consequently, the High Court erroneously held that the non‑filing of the appeal was inconsequential qua the availing of alternate remedy.

Our own examination of the evidence on record reveals that the respondent was heard and this is so stated in the enquiry report. There is' no grievance also made by the respondent that this was not so. It is also on record that the respondent did not file his list of witnesses nor did he express his desire to examine any witness. The enquiry was held in the presence of the respondent and care was taken to avoid any prejudice to him so much so that he was also supplied with the copies of the statements of witnesses recorded in his presence although there was no provision to this effect, and despite his failure earlier to submit his list of witnesses, he was allowed to examine subsequently as many as six defence witnesses. In this state of affairs, it cannot be said that the respondent was, in any way, prejudiced in rebutting the prosecution case. As for the acceptance of evidence with regard to the receipt of Rs.1,500, as illegal gratification the High Court has substituted its own opinion arid held him not guilty. This, in my opinion, was not appropriate as while exercising constitutional jurisdiction, the High Court cannot substitute its own opinion for that of the inferior Tribunal having exclusive jurisdiction to decide the case of the defaulter.

For all these reasons, we are of the view that the High Court erred in. holding that the order of dismissal was without lawful authority. We would, accordingly, set aside the impugned order, recall the writ and allow the appeal, but with no order as to costs.

M. Z M. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.