1984 PLP 1445 (PLC)

Domestic enquiry - Statement of witnesses not recorded by Enquiry Officer -Statement of accused recorded in question-answer form-No report of enquiry submitted - Dismissal order also passed by Enquiry Officer considering himself entire case-Enquiry, in circumstances, held, could not be treated as fair and proper Enquiry Officer, in circumstances, further held, acted as a judge in his own cause. Ahsan Industries Ltd. Karachi v. Saleem Anwar 1978 P L C 421; United Bank Ltd. Sukkur v. Munesr Ahmad 1982 P L C 260 and 1984 P L C 276 rel. Tanwari Khaliqdino for Appellants. Hassan Hameedi for Respondent. _ . _ Date of hearing : 18th March, 1984. This appeal is directed against the order, dated 2nd March, 1982 passed by Sind Labour Court No. VII at Sukkur ordering reinstatement of the respondent with full back benefits.

2. The facts leading up to the appeal briefly stated are that the respondent, Hidayatullah was working as Recovery Assistant since 1975 in the appellant bank. During the course of his employment, it was alleged against him; firstly, that while posted at Garhiyaseen he made recovery of Rs. 700 from Murad Ali, vide Receipt No. 55, dated 15th February, 1976 and manipulating the record deposited only Rs. 200, whereas mis appropriated the remaining amount of Rs. 500; secondly, that while posted as Recovery Assistant at Jacobabad he issued Notice under section 82 of Land Revenue Act, dated 5th October, 1979 and 5th November, 1979 in the names of Malook son of Ramzan and Allah Dad son of Ali Bux, respectively without any authority vested in him ; thirdly, that he lost the Cash Receipt Book Report on 17th October, 1979 on account of extreme negligence on his part ; and fourthly, that he misapplied the conveyance advance sanctioned to him, vide Head Office Memorandum, dated 6th February, 1979 by disposing of purchased Motor-cycle more than one without permission of the bank and could not present the same before the enquiry officer on demand on 23rd September, 1980. He was charge-sheeted, vide Office Memorandum, dated 29th October, 1980. He furnished his explanation to the charge-sheet and after an enquiry be was found guilty of the charges and was dismissed from service by the order, dated 8th April, 1981 passed by the Assistant Director (Operations). He served grievance notice on the appellants and his grievance having not been redressed he filed an application under section 25-S. I. R. O., 1969 before the learned Labour Court as stated above. The learned Labour Court recorded evidence, the appellants examined Abdullah Shaikh, Assistant Director (Operations) and the respondent examined himself. The learned Labour Court ultimately allowed the application of the respon dent directing his reinstatement with back benefits. Aggrieved by the order the appellants have come in this appeal.

3. I have herd the learned Advocates for the parties, Mr. Tanwari for the appellants and Mr. Hassan Hameedi for the respondent. I have also perused all the evidence on the record, examined by the learned Labour Court as well as by this Tribunal during the course of the appeal proceedings. In view of the contentions raised on behalf of the parties by their learned counsel the questions that would arise for consideration are ; firstly, as to whether fair, independent and proper domestic enquiry was held before the order of dismissal, dated 8th April, 1981 was passed against the respondent ; secondly as to whether the charge-sheet was time-barred and, therefore, illegal in view of the provisions of Standing Order 15 (4) of the Standing Orders Ordinance, 1968 ; and thirdly as to whether the dismissal order, dated 8th April, 1981 was passed by a legally competent authority.

4. As regards the question concerning the fairness, independence and propriety of the domestic enquiry is concerned, admittedly statements of witnesses were not recorded by the enquiry officer. Mr. Abdullah Shaikh, he Assistant Director (Operations) examined on behalf of the appellants has admitted in his cross-examination that he was appointed as an enquiry officer by the Regional Manager. He has further admitted that be had examined Muhammad Mehar Panhwar, Loan Supervisor on behalf of the Bank. He further admitted that he has not produced the statement of Muhammad Mehar Panhwar in the Court. He has also admitted that he had recorded statement of Manager, incharge of the appellant-bank Naudero. He has further admitted that he had not recorded statements of witnesses, Murad Ali and Allah Dad. According to him he had felt that their statements were not necessary as there was recorded proof against the respondent. According to him he had not examined Manager Zaheeruddin, Incharge of Jacobabad Branch. According to him further he bad recorded the statement of the respondent Hidayatullah but it was in Question and Answer form. In fact on the admitted facts of the case either he bad not recorded any statements or if at all be recorded any such statements as stated by him he has failed to produce the same before the Court. The presumption under section 114 of the Evidence Act would, therefore, arise that either the relevant statements were not in existence or if at all they are there, they would go against the interest of the appel lants who have withheld the same. Reliance in that respect has been placed on the authority of the Karachi High Court in the case of Shamimur Rehman v. Government of Pakistan and others (P L D 1980 Kar. 345). What I find to that, admittedly only the enquiry papers that have been produced before the learned Labour Court are in respect of the statement of the respondent recorded in Question and Answer form, vide pages 75 to 89 on the Lower Court record. It is admitted that the questions were supplied to the respondent who had furnished answers to the questions on 15th December, 1980. The statement in Question and Answers form as disclosed by the above papers on record would make the position in that respect very clear. In fact, it is more or less an admitted position that beyond the statement of the respondent in this Question and Answer form no other enquiry was held at all. It has been contended on behalf of the respondent that the enquiry in that Question and Answer form resulting in the dismissal of the respondent could not be treated as fair and a proper enquiry. Reliance in that respect has been placed on the decision of this Tribunal in the case of Ahsan Industries Ltd., Karachi v. Saleem Anwar (1978 P L C 421). This Tribunal also held in the case of United Bank Ltd. Sukkur v. Muneer Ahmad (1982 P L C 260), that the enquiry officer acting as if he was conducting investi gation by putting searching questions to the respondent could not be considered to have held a fair, impartial and proper enquiry within the meaning of Standing Order 15 (4) of the Standing Orders Ordinance, 1968. This decision of the Tribunal was confirmed by a Division Bench decision of Karachi High Court reported in 1984 P L C

276. Apart from what has been stated above, what I find that Abdullah Shaikh, Assistant Director (Operations) was appointed as an enquiry officer and he held the enquiry as stated above. What I further find that he submitted enquiry report as nothing has been produced on the record in that respect. What is further clear that he himself considered the enquiry and con sequently passed the dismissal order, dated 8th April, 1981. His involve ment in the proceedings as stated above, holding enquiry, considering the entire case before himself passing the dismissal order, would be considered more than that of a witness and in fact as it appears to me he acted as a judge in his own cause. For all these reasons, it would be clear that the domestic enquiry held by him suffered from a number of serious infirmities which would adversely affect the fairness, impartiality and propriety of the enquiry which ultimately resulted in the order of dismissal of the respondent. Relying on the case of United Distributors Ltd. v. Zahid Hussain Khan and 2 others (P L D 1976 Kar. 376), Mr. Tanwari the learned counsel for the appellant has argued that the learned Court could not go behind the enquiry whatever it was to consider the merits of the case. In my view, his contention is untenable, in view of the clear provisions of section 25-A (5) of

1. R. O., 1969. Reference in that respect can be had to the autho rity of the Supreme Court reported in P L D 1978 S C 207.

5. As regards the second question as to whether the charge-sheet was time-barred and, therefore, legally incompetent in view of the provisions of Standing Order 15 (4) of the Standing Orders Ordinance, 1968, the office memorandum, dated 29th October, 1980 accompanied by statement of allegations against the respondent would itself clearly show that the charge No. 1 as stated above pertains to the year 1976, charge No. 2 pertains to the year 1979 and so also the charge No. 3 as well as charge No. 4 and none of these charges were brought to the notice of the respon dent as the alleged misconduct within a period of one month of the date of such misconduct as provided by Standing Order 15 (4). The respon dent was charge-sheeted on 29th October, 1980 and in my view such a charge-sheet was clearly time-barred and incompetent in Law.

6. As regards the third question as to whether the order of dismissal, dated 8th April, 1981 passed by the Assistant Director (Operations) was from a lawful authority my learned predecessor recorded evidence during appeal proceedings of Shaikh Abdullah, Assistant Director (Operations) Larkana. He produced relevant notifications, vide Exhts. Tr. 1/1, 1/2, 1/3 and 1/4 which clearly indicate, vide Notification, dated 29th March, 1981 that the Assistant Director (Operations) was an authority em powered to impose penalty on clerical and non-clerical staff in the Regional Office as well as Branch Offices of the appellant Bank. Accor dingly, I would find that Assistant Director (Operations) was the autho rity competent in Law to impose penalty and, order dismissal in case of the respondent.

7. The result is that the appeal is dismissed. A. E. Appeal dismissed.