2012 PLP 5 (PLC)

ABDUL HAFEEZ CHEEMA (CHAIRMAN).

This appeal impugns the judgment dated 27-8-2009 passed by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad whereby the grievance petition filed by the respondent was allowed with back-benefits.

2. The facts of the case briefly are that the Manager MCB Satiana Road Branch, Faisalabad lodged an F.I.R. No.36 of 2000 on 20-1-2000 with the relevant police station regarding stealing of three blank traveller cheques of the bank. During the investigation the police arrested the respondent who was a security guard in the branch at the relevant time and they also recovered an amount of Rs.1,50,000 from the respondent claiming it to be as stolen money.

3. The respondent was accordingly charge sheeted vide letter of charge dated 22-3-2000 wherein he was accused of stealing three blank RTC bearing Nos.T-905-1100-163170 to 172, each of Rs.1,00,000 totaling value three lacs rupees from the iron box of Mr. Muhammad Siddique Accountant/Officer Grade III of the branch when he was busy in passing cheques of the clients. It was further alleged in the charge sheet that later he affixed the bank stamp on the said RTCs and encashed the same from the Bank's counter at Gujrat.

4. The respondent was arrested and sent to jail. He denied the allegations claiming inter alia that he was a security guard and his duty was outside the bank premises and in fact he had been transferred to the other Booth three months prior to the alleged occurrence dated 4-1-2000. As the respondent was detained in jail, the bank vide order dated 8-5-2000 passed the following order of termination:

"You were issued Letter of Charge bearing No.ROCP/MISC/139 dated March 22, 2000. you submitted reply thereof. It has been reported that you were arrested on 2-3-2000 by the Police and bail has not been granted to you. Job of Guard/Chowkidar in a Bank cannot be kept vacant indefinitely. Moreover, it has been reported that an amount of Rs.1,50,000 out of the defalcated amount has been recovered from you by Police and has been handed over by the Court on Superdari basis to the Bank. The job of a Chowkidar involves confidence between the employer and the employee and under these circumstances it is difficult for the bank to keep and repose confidence in you. It has, therefore, been decided to drop the disciplinary proceedings and to terminate your service in accordance with the Muslim Commercial Bank Ltd. (Staff) Service Rules, 1981. In addition to your legal dues, if any and after adjustment of your liabilities, you shall be paid one month's substantive pay in lieu of period of notice of one month."

5. The respondent challenged the said termination order by means of a grievance petition which after due contest was accepted by the Labour Court.

6. It is inter alia submitted by the learned counsel for the appellants that the security guard of the bank is not a workman and the learned Labour Court fell in error in holding so and coming to the conclusion that the grievance petition was competent; that rule 15(2) of the MCB Staff Rules, 1981 of the bank clearly provided that service of an employee may be terminated by the competent authority on one month's notice or on a pay of amount equal to the substantive pay of one month in lieu thereof as such exercising the powers under the said rules the bank had every legitimate authority to terminate the service of the employee which was immune from challenge; that in the given situation the learned Labour Court had no mandate to declare that there should have been a regular enquiry which in the circumstances of the case was not possible as the respondent was in the jail; that the learned labour court under wrong assumption about his acquittal that it obliterated his offence and he cannot be now subjected to a departmental enquiry, allowed the grievance petition which has no justification; that the impugned order is not a speaking order in terms of section 24-A of the General Clauses Act and that the judgment is based on misreading and non-reading of evidence which has resulted into miscarriage of justice.

7. Conversely it was pointed by the learned counsel for the respondent that his main duty was that of manual work and as such the labour court has rightly declared him as a workman and proceeded with the case and that it was an ouster with a major stigma and failure to hold a regular enquiry vitiated the entire proceedings.

8. Arguments have been heard. Record perused.

9. There is a general misconception that if one is acquitted of a criminal charge this also affects departmental enquiry. This I believe is totally a misconceived notion. The Hon'ble Supreme Court has clearly held that both the remedies are independent of each other and the acquittal from the criminal charge will not affect the departmental proceedings. Reference may be made to PLD 1985 SC 134 and 1996 SCMR

315. Their Lordships were pleased to rule:

"Departmental proceedings and criminal proceedings having been taken separately against civil servant, his acquittal in criminal case would not justify setting aside of punishment awarded to him in consequence of departmental proceedings."

10. As for the contention that since the respondent was in jail there was no alternative with the bank but to resort its own rule as indicated above and to dispense with the enquiry. MCB Bank has no statutory rules as such in labour cases it will governed under the Standing Orders Ordinance, 1968. This is a central statute and over rides and over reaches every non-statutory instrument/rule as such to say that the bank could have resorted to their own rules does not appear to be lawful. To penalize an official of a charge of theft without holding regular enquiry does not appear to be in consonance with the provisions of Standing Order 12(3) of the Standing Orders Ordinance, 1968. The man came out of the jail in view of the bail granted to him. The matter could have been deferred for sometime and a regular enquiry ought to have been held. Non-holding of the enquiry surely vitiated the order passed by the bank which, on the face of it, is arbitrary.

11. As for the recovery of the amount from his house in the criminal charge it does not give any indication that this was the stolen amount because there was no specific mark on the amount so recovered which could have connected him with the crime.

12. As for the workmanship of the respondent, the guard who stands outside and maintains the security of the bank cannot be said to have exerted his brain in that process and used his mental faculties. It mainly depended on his manual labour and if at all there was a part which can be attributed to the use of mental faculty that was a small part and as such cannot deprive him of the status of a workman. 12(sic). Learned counsel for the appellant has finally submitted that in this background and peculiar scenario, the bank has lost confidence in the respondent and the man whose job is of security, if no one reposes confidence in his integrity sincerity and loyalty it will be altogether futile to keep him on guard's duty as such the bank would not be able to accommodate him in any way.

13. Since it was a stigmatic ouster and the law required a regular enquiry in such a matter, the dispensation of regular enquiry in this case was not a lawful exercise of the authority by the bank. Direction of fresh enquiry at this stage appears to operate somewhat harshly on the respondent after lapse of about ten years.

14. In this view of the matter I feel that this was not a case of termination. In the given situation if he is retired compulsorily, that I believe would meet the ends of justice and he would be able to seek another service from any Institution. As such modifying the order passed by the learned Labour Court it is ordered that the termination order passed by the bank is converted into compulsory retirement without back benefits from the date of his termination. The appeal stands accepted with the above modification. The parties are left to bear their own costs. H.B.T./4/PLT Order accordingly.