1982 PLP 728 (PLC(CS))

5. The respondent once again approached the learned VIth Labour Court, challenging the fresh order of his dismissal. As already indicated. the learned Labour Court, by its decision, given on 27th September, 1981 has allowed the respondent's grievance petition and directed his reinstate ment in service.

6. I have heard Mr. Mahmood Abdul Ghani, the learned counsel for the bank and Mr. Wasiullah Qureshi, who appeared for the respondent workman. Mr. Mahmood Abdul Ghani raised the following contentions in support of the appeal:‑ (1) Whether the Labour Court, in the circumstances of the case, was entitled to re‑appreciate the findings arrived at by its predecessor in respect of the domestic enquiry and come to a different finding? (2) Whether the shortage of Rs. 5,000 ids the monies of the bank in the circumstances of the case would amount to a fraud? (3) Whether a person assisting a workman in a domestic enquiry is entitled or can insist as of right to cross‑examine the witnesses testifying against the workman?

7. As regards the first contention raised by M. Mahmood Abdul Ghani, it was conceded by him that the decision of the, learned VIth Labour Court given on 30th September 1979 was wholly set aside by this Tribunal by its order, dated 8th July, 1980. Furthermore, it was not disputed by him that this Tribunal had either, in the said order, set it, seal of approval on the enquiry proceedings or had even examined the same. The previous decision of the learned VIth Labour Court having been wholly set aside, it was clearly the duty of the successor of the Presiding officer to examine the case against the respondent on merits, which it has rightly done

8. In support of his contention that the evidence led in the enquiry proceedings established misconduct on the part of the respondent, Mr. Mahmood A. Ghani relied upon documents, which are admittedly in the handwriting of the respondent himself. The first of these documents is the respondent's letter, dated 15th February, 1978, i. e. on the very day that the shortage was discovered by the audit party, addressed to the Zonal Chief, admitting the shortage of cash by Rs. 5,000 and being wholly at a loss to account for this shortage. However, in his reply, dated 18th February 1978 to the charge sheet of 16th February 1978 the respondent took an altogether different stand and claimed that he had correctly closed the cash on 14th February 1978, placed the Cashier's Daily Memo. Book before the accountant for necessary verification and onward trans mission to the manager of the branch and after due verification of the Cashier's Daily Memo, Book by these 2 officers, the cash was closed on their directions. He has further disclaimed responsibility in the matter on the ground that the keys of the cash remained with the above 2 officers, indirectly suggesting thereby that they may be responsible for the shortage. The third document evidencing the shortage and also indicative of respon sibility for the shortage on the part of the respondent is a Debit Memo dated 15th February, 1978 for a sum of Rs. 5,C00 which is signed by the respondent. It was rightly contended by Mr. Mahmood Abdul Ghani that the respon dent could hardly have signed this Debit Memo for fairly large amount unless he had fully realised his responsibility in the matter. This Debit Memo appears to have been signed by the respondent in view of the 2 sheets hearing the rough calculations made by the respondent, which were discovered by the audit party on 15th February 1978. The first of these sheets, which is at page 311 of the record of the learned Labour Court, shows the details of the various denomination notes held in the bank on the close of 14th February 1978. The number of notes of Rs. 50 denomi nation was admittedly

482. The respondent accordingly totalled on the right side of the sheet at page 311, the amount represented by these‑notes as Rs. 24,100 but on the left side of the sheet when giving the totals of the different denomination of notes held in the 'bank, has given the total amount represented by 482 notes of Rs. 50 denomination as Rs. 29,

100. This was because he had to show the balance in hand as Rs. 1.71,996.11, which he could not have shown if he gave the correct amount represented by 482 notes of Rs. 50 denomination. The second sheet, showing the rough figures worked out by the respondent, which is at page 313 of the record of the learned Labour Court further shows that the respondent first had correctly show as the total of 482 notes of Rs. 50 denomination as Rs. 24,100, but since the totals of the notes of different denomination came to Rs. 1,66,996.11, and there was shortage of Rs. 5,000 to be covered, he has dishonestly given the total in the sheet at page 311 of the record of the learned Labour Court has also in the Cashier's Daily Cash Memo. Book for 14th February, 1978 as Rs. 29.,

100. These rough calculations on the 2 sheets in question clearly demonstrate that the res pondent was at pains to somehow cover the shortage of Rs. 5000. In -spite of this position, the respondent, in his reply, took up the position that besides the notes which he had done rough calculations, there was a packet of loose notes in the drawer amounting to Rs. 5,000 and thus he has attempted to show that there was in fact no shortage. This plea clearly was an afterthought and is entirely devoid of substance. If there was in fact any such bundle of loose notes, case, the respondent would have trade mention of the same either in his reply to the charge‑sheet in the subsequent proceedings. The fact that no such plea was raised by him for almost 2 years clearly points to the fact that it is an afterthought and devoid of any substance. I am, therefore, inclined to the view that not only there was a shortage of an amount of Rs. 5,000 in the cash which was in the charge of the respondent, but that further the respondent has attempted to cover up the same by wrong totals.

9. This brings me to the main issue, which falls to be considered in the instant case, namely, whether the domestic enquiry proceedings stand vitiated by the refusal on the part of the enquiry officer to permit Muhammad Rafiq, whom the respondent had nominated to assist him in the enquiry proceedings to cross‑examine the witnesses testifying against the respondent. The right of a workman to be assisted in the enquiry by a workman nominated by him is a statutory right and the provision in this behalf, which is contained in the proviso to clause (4) of Standing Order 15, reads as follows:‑ "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 work man 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." The question to be considered, however, is what is the nature of the assistance, which the nominee of the workman is to render in the enquiry? Does it mean mere presence as an observer during the enquiry, as seems to have been the view of the enquiry officer and at best to advise the workman or does it mean actual participation in the enquiry and being entitled to cross-examine the witnesses testifying against the workman and also examining the witnesses cited by the workman in his defence. It was contended by Mr. Mahmood Abdul Ghani that the assistance of the nominee contemplated in the above provision was limited only to advising the workman, including the advice to what questions may be put to the witnesses but confers no right on the nominee himself to cross- examine the witnesses or even to put questions to defence witnesses. In the Shorter Oxford English Dictionary, the term "assistance" is de fined as: "The action of helping or aiding; also the help afforded, aid, relief." In Webster's Third New International Dictionary, Volume 1, the term has been defined as: "The act or action of assisting aid, help, the help, supplied or given." In Black's Law Dictionary, the word "assist" has been defined as; "to help; aid: succour; to countenance or encouragement to participate in as auxiliary to contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged". In corpus Juris Secundum, Volume 7, the term "assistance" is defined as; "as judged by common usage, the word pertains to some kind of services rendered; and has been defined as act of assisting; help, aid, furtherance, succour, support; aid. In particular connections, it has been distinguished from `advice' and supersession".

11. There appears to be no Pakistani authority on the question whether the assistance to be provided by the nominee workman under clause (4) of Standing Order 15 includes the right of cross‑examining or the examination by him of witnesses. However, there are authorities from the American, English and the Indian jurisdiction, which appear to support this view. The Sixth Amendment to the Federal Constitution of the United States of America guaranteed accused in criminal prosecu tion "assistance of counsel" for his defence. In the case of Thomson v. District of Columbia ((1968) 2 All E R 545), it was held that the assistance contemplated by the Constitutional amendment meant effective assistance.

12. I will next refer to a case from the English jurisdiction, reported as Pett v. Greyhound Racing Association Ltd. ((1968) 2 All E R 545). In that case .an enquiry had to be held into the question whether the drug had been administered to dog, trained by the trainer holding a licence from the National Greyhound Racing Club entitling him to race dogs on tracks licensed by the club, and thus the result of the inquiry might involve the trainer's reputation and livelihood. The rules of the club, to which the trainer had agreed when he obtained his licence, did not prescribe the procedure to be followed by track stewards at their inquiries, and does not exclude legal representation. Lord Denning, M. R., took the view that when a man's reputation of livelihood is at stake, be not only has a right to speak through his own mouth but has also a right to speak by his counsel or solicitor. Distinguishing the earlier view taken in the case of Maclean v. Workers Union, the Master of the Rolls observed as follows:‑ "Now the point arises, has the trainer a right to be legally represent ed? The club object to any legal representation. Their secretary states in his affidavit:‑ 'If legal representations were allowed as of right, the delay and complications that this would cause would largely frustrate the stewards' intention to conduct their meetings expeditiously and with complete fairness. Counsel for the defendants, says that the procedure is in the hands of the stewards. If they choose to say: "We will not hear lawyer'", that is for them, he says, and it is not for the Courts to interfere. I cannot accept this contention. The plaintiff is here facing a serious charge. He is charged either with giving the dog drugs or with not exercising proper control over the dog so that someone also drugged it. . If he is found guilty, he may be suspended or 'his licence may not be renewed. The charge concerns his reputation and his livelihood. On such an inquiry, I think that he is entitled not only to appear by himself but also to appoint an agent to act for him." One of the grounds on which such representation was considered necessary by Lord Denning was that: "1t is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongus-tied or nervus, confused or wanting in intelligence. He cannot examine or cross‑examine witnesses. We see it every day. A Magistrate says to a man: You can ask any questions you like', whereupon the man imme diately started to make a speech".

13. The view taken by the Indian Courts in respect of domestic en quiries in labour matters has been somewhat different for in the Indian Law there is no statutory provision entitling ‑the workman against whom disciplinary proceedings are being taken with a view to his dismissal from service, to be assisted by a workman nominated by the accused work man. In the case of N. Kalindi v. Tata Loco & Engineering Company Ltd. ((1960) 2 L L J 228), the Supreme Court of India held that a workman against whom a domestic enquiry is being held by the employer, has no right to be repre sented in such enquiry by a representative of his Union, though of course an employer in his discretion can and may allow his employee to avail himself of such assistance. The main reasons advanced for holding this view was that domestic enquiries are not in a Court of law and in such enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not, only fall to be considered. However, in the case of Dunlop Rubber Company (India) Ltd. v. Their Workmen ((1965) t L L J 426), the Supreme Court of India held that though there was no right of representation as such the employer by this standing orders may recognize such right and in such case, refusal to allow repre sentation could vitiate the proceedings.

14. As already pointed out, there is no statutory provision in the Indian Law regarding representation or assistance in the domestic enquiry by a co‑worker, but where such a provision is made in the standing orders of the employer, the employer is required to permit such a representation. In Pakistan, there is a statutory entitlement to the workman to be assisted by a co‑worker of his choice in a domestic en quiry, which is being held for the purposes of his dismissal from service. This assistance would be meaningless unless the nominated co‑worker is allowed to examine and cross‑examine the witnesses in the domestic enquiry. As pointed out by Lord Denning in the case of C.A. Pett. it is not every man who has ability to defend himself on his own". I am, therefore, of the opinion that refusal on the part of the enquiry officer to permit the co‑worker nominated by the respondent to cross- examine the witnesses testifying against the respondent was an infringe ment of a vital right of the respondent, which has visited the enquiry against him. The dismissal of the respondent thus cannot be sustained in the circumstances of the case.

15. The upshot of the above discussion is that I would agree with the view taken by the learned Labour Court though for different reasons that the order of dismissal of the respondent must be set aside. However, I consider that in the circumstances of the case, the respondent is not entitled to full back benefits as ordered by the learned Labour Court. As already indicated, it is hardly disputed that there was shortage of an amount of Rs. 5,000 in the case, which was in the charge of the respondent. The respondent has tried to cover up the shortage by false calcula tions. Such irregularities by officers of the banks, specially those entrusted with the case of the bank, cannot be lightly condoned as such condonation would shake the confidence of the public in the banks. I am, therefore, of the view that the respondent is not entitled to back benefits. I would have normally given an option to the bank to hold a fresh enquiry against the respondent, but as the bank has already held 2 enquiries against him, I consider it unreasonable in the circum stances of the case to allow further option to the bank to hold still an other enquiry against the respondent.