Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has held that the primary burden is on the employer to prove an employee’s wrongdoing in a dismissal case.
“The primary burden rests on the employer to prove the wrongdoing so that the case can be decided by a preponderance of evidence that is clear, credible and supports the ultimate conclusion beyond a reasonable doubt.
“Broadly speaking, when an employee challenges his termination or dismissal from service, the burden often shifts to the employer to establish that the action was based on independent, impartial and logical reasons and that while terminating or dismissing the employee, the principles of natural justice and due process were followed religiously.
“The employer has to present substantial evidence to convince the court that the decision was not motivated by revenge, partiality and/or any prejudicial aspiration,” said a 12-page judgment authored by Justice Muhammad Ali Mazhar.
Due to a toothache, the petitioner visited a dental surgeon on 1 September 2015 where he was advised to undergo a root canal. After the treatment, the petitioner applied for reimbursement of the medical bill in accordance with the approved company policy.
However, he was issued a show cause notice on December 1, 2015 by the HR head alleging that he had submitted a fake medical bill of Rs 10,000.
The petitioner filed his reply denying the allegations. He participated in the investigation and also submitted the verified bill on 4 December 2015 along with the receipt of the payment of Rs 10,000.
However, on the basis of negative results, the petitioner was dismissed from employment on March 8, 2016. The petitioner filed a grievance with the National Industrial Relations Commission (NIRC), which dismissed the plea.
He then filed an appeal before a full bench of the NIRC, which allowed the appeal and set aside the order of the single bench of the NIRC.
It ordered that the petitioner be reinstated with all back payments. The company then filed a constitutional petition in the Sindh High Court (SHC), which set aside the NIRC’s full bench order.
The petitioner later approached the Supreme Court, whose three-judge bench headed by Justice Muhammad Ali Mazhar set aside the SHC order.
In its judgement, the SC observed that when conflicting receipts were available on record, it was mandatory for the investigating officer to call a witness from the hospital for evidence and verification, with the right of cross-examination vested in the petitioner, without which the truth could not be ascertained.
“The purpose of a domestic investigation under labor laws, if taken so lightly, destroys the entire substrate.
“Notwithstanding the fact that an investigative officer in a domestic investigation cannot be equated with a well-trained judicial officer, the bare minimum requirements of natural justice and due process are reasonable and essential elements for the conscience of the investigating officer before he finds an employee guilty of misconduct and sends the investigative report or recommendations to management.”
The judgment observed that it is the prerogative and inherent right of the employer to initiate disciplinary proceedings in accordance with law to remedy misconduct if committed by an employee.
However, the course of action for dealing with any type of wrongdoing must adhere to the principles of natural justice and the prescribed guidelines to ensure fair trial.
“The mishandling of misconduct cases results in a negative impact on industrial relations and also tyrannizes the level of trust between management and workers.
“Therefore, it is essential for employers to maintain transparency, uniformity and equality, which involves complying with all legal requirements and treating employees equally without any form of discrimination or favouritism.”
The judgment also noted that proving guilt on the charges of misconduct is a serious matter and, at least for the employee, the stakes are much higher than for the employer.
“Therefore, before pleading guilty, due diligence should have been carried out. In the present case, the evidence from the representative of the dental clinic/doctor
was indispensable to prove the guilt whether the petitioner paid Rs.7,000 or Rs.10,000 and whether he really presented a bill of excess amount or not.
“So in our view the witness from the hospital could be the star witness in this case who was ignored and the management representative made no effort to call him before the investigating officer as the management’s witness.
“No burden should be shifted to the employee to call him if management did not want to verify or confront these medical bills to their star/key witness who, through their own fault, lost probative value and nothing to show which bill from the hospital/clinic was genuine.
“In fact, the term ‘star witness’ or ‘key witness’ refers to a witness whose evidence is considered to be of the utmost importance to both the prosecution and the defense.
“Indeed, his testimony turns out to be crucial in establishing key facts. It is somewhat of a common benchmark that the doctrine of presumption of innocence places the burden on the prosecution to prove its case beyond a reasonable doubt.
“The magnitude and scope of the likelihood of guilt may be based on the interdependence of evidence, and therefore, even in the domestic investigations triggered by the labor laws and civil service laws and regulations, it is a burdensome duty on the investigating officer/investigating committee to afford ample opportunity for fair trial and due process,” the judgment said.
