1990 PLP 192 (PLC)

Nemo for Respondents Nos. 1 and

2. Muhammad Asghar Malik for Respondent No.

3. Date of hearing: 4th October, 1988. Mohammad Javid Akhtar, respondent No.3, hereinafter referred to as the respondent, was serving as Senior Head Cashier (Officer Grade 111) in Hall Road, Lahore, Branch of National Bank of Pakistan, i.e. the petitioner herein, in the year, 1979. He was served with a charge‑sheet (Annex. `A') on 7‑2‑1979 on the charges of disregard of Bank's Rules and misappropriation of money in relation to certain demand drafts and Savings Bank Account deposits lie replied, 4 to the charge‑sheet whereby he admitted the disregard of Bank's Rules in the interest of the bank but denied the charge of misappropriation, of money. A domestic enquiry followed. The Enquiry Officer instead of recording the prosecution evidence against the respondent and thereafter requiring him to enter upon his defence, provided him with a questionnaire requiring him to record reply to the questions contained in the questionnaire. On the basis of the replies thus recorded the Enquiry Officer found the respondent guilty of' misappropriation as also of violation of Bank's Rules. Consequently, the respondent was dismissed from service on 29‑11‑1980.

2. The respondent filed a Grievance Petition, of course after service of Grievance Notice, before the learned Punjab Labour Court No.2, Lahore. His Grievance Petition was dismissed on 9‑5_'1983. He riled appeal before the learned Punjab Labour Appellate Tribunal. Cross Objections were also filed by the Petitioner‑Bank. The learned Punjab Labour Appellate Tribunal vide judgment dated 30‑1‑1984, accepted the appeal. Resultantly, the respondent has been reinstated but without back benefits. The order of the learned Labour Appellate Tribunal dated 311‑1‑1984 has been assailed through the present Constitutional Petition.

3. It was mainly urged in the instant writ petition that terms and conditions of service of the employees of nationalized banks and other financial institution were governed by the Award of the Wage Commission and that the said Award could only be enforced through the National Industrial Relations Commission and the Labour Court as also the Labour Appellate Tribunal lacked jurisdiction in the matter. This contention found favour with a learned Division Bench of this Court which was then seized of the present writ petition and other writ petitions raising similar questions. The writ petition was thus allowed. The respondent and other affected employees of the Nationalized Banks filed appeals before the learned Supreme Court of Pakistan. The appeals have been allowed by the Honourable Supreme Court and the cases have been remanded to this Court for deciding other issues arising out of such cases. So far as the present case is concerned, regarding other issues, it has been urged that: (a) the respondent admitted his guilt in reply to the charge‑sheet as also before the Enquiry Officer and, therefore, he could not lawfully be reinstated; in any case, if some irregularity was noticed regarding enquiry proceedings, the proper course was to remand the case for de novo enquiry; and (b) after his dismissal, the respondent ceased to be a workman within the meaning of Section 2 of the Industrial Relations Ordinance and hence he had no locus standi to file Grievance Petition under Section 25‑A of I.R.O.

5. Regarding admission of the charge, it has already been observed that as a matter of fact, the respondent did not admit the charge of misappropriation of embezzlement. He only conceded the violation of Rules and that too in the interest of the Bank. He claimed that under the orders of the Manager Incharge of the Branch, the considerations regarding the demand drafts were not credited for some time and similarly the customer who initially wanted to deposit a sum of Rs.10,000, withdrew a sum of Rs.3,500 and, therefore, on that day an amount of Rs.65,000 was credited to his account and on the following day after having received Rs.3,500 from him, his deposited amount was shown as Rs.10,

000. All this was done to accommodate the customers and to encourage more deposits. The Enquiry Officer instead of recording evidence against the respondent in the first instance, gave him questionnaire and simply recorded his replies to the questions contained in the questionnaire. Thereafter, he found that the respondent was guilty of all the charges including embezzlement. The learned Tribunal has observed that if the proper enquiry were conducted, the charge of embezzlement could not have been proved against the respondent and in such an eventuality, the employer would have awarded him lesser penalty than the dismissal from service.

6. Reliance on behalf of the petitioner has been placed on the case of Shahzar Khan v. Sindh Labour Court No. 4, Karachi and 2 others (1977 S C M R 103). In this case, it has been held that when a case has been considered on merits by the Labour Court and the procedure of enquiry is found to be defective, the proper course would be to remand the case. This authority is distinguishable from the present case inasmuch as in the precedent case, the worker admitted the allegations against him and prayed to be excused. It has not so happened in the present case. The respondent categorically denied the allegation of cmbzzlement and claimed to have acted for the benefit of the Bank. The learned Labour Appellate Tribunal has also found that the charge of cmbzzlement was not proved against the respondent. In Usman v. Labour Appellate Tribunal and another (1984 C L C 2782), a Division Bench of Karachi high Court disapproved the proceedings of domestic enquiry wherein instead of adducing evidence of the prosecution in the first instance, Enquiry Officer commenced proceedings with a very close examination of the accused employee and nature of question' put to him indicated that he was being cross‑examined. In Mcenglas Tea Estate v. Their Workmen (1964 P L C 135) (Supreme Court of India) it has been held that a workman who is required to answer a charge of misconduct in a domestic enquiry must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear evidence in support of the charge and to put such relevant questions by way of cross?examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest minimum of a domestic enquiry and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. It was further found that where in an enquiry which is made by persons who were not only in the position of Judges but also of prosecutors and witnesses and which consisted to putting questions of each workman in turn, no witness being examined in support of this charge before the workmen were questioned, would amount to such a travesty of the principles of natural justice that a Tribunal would be justified in rejecting the findings. Certain other authorities of foreign jurisdiction have been cited in support of this proposition but they need not be quoted in view of the aforementioned authorities.

7. In view of the above discussion, it is concluded that the enquiry conducted against the respondent was not lawful and the findings in this behalf recorded by the learned Tribunal cannot, therefore, be interfered with by this Court, in exercise of writ jurisdiction.

8. The second plea that a dismissed workman ceases to be a workman for the purpose of Section 2 of the Industrial Relations Ordinance, is also without any substance. In Iftikhar Ahmad and others v. President, National Bank of C Pakistan and others (P L D 1988 S C 53), the judgment whereby the present case also stands remanded to this Court, it has been observed; "As the right to approach to the Labour Court was available to them under the Ordinance itself, it is unnecessary to examine the further question whether they could also involve the jurisdiction of the said Courts under Standing Order 12(3) of the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance 1968." In the circumstances of the present case, there can be no dispute that prior to the dismissal, the respondent was a workman within the meaning of Section 2(xxviii) of the Industrial. Relations Ordinance. Through the Grievance Petition leading to the present writ petition, he took grievance arising out of his dismissal from service before the Labour Court. It is provided in section 25‑A (4) ibid that where a worker takes his grievance before the Labour Court, the same shall be decided as if such matter were an industrial dispute. In section, 2(xxviii) the definition of worker and workman includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment, whose dismissal, discharge, retrenchment, lay off or removal has led to the industrial dispute. It would thus follow from the considered and close analysis of the expression "Worker", "Workman" and "industrial dispute" as occurring in Section 2(xxviii) and Section 2(xiii) respectively, read in the light of the redeeming clause as contained in subsection (4) of Section 25‑A of the I.R.O., that a dismissed workman has a locus standi to rile an application under Section 25‑A ibid.

9. An half‑hearted plea has also been raised on behalf of the petitioner that being a Grade III Officer, the respondent was not a workman. In this behalf, concurrent finding of fact has been recorded by the learned Labour Court as also by the learned Labour Appellate Tribunal that in view of the clerical duties being performed by the respondent, he happened to be a workman and not an employer. This finding of fact does not call for any interference by the High Court in exercise of constitutional jurisdiction.

10. For the foregoing conclusions, there is no merit in the present Writ Petition, which is, therefore, dismissed, but there shall be no order as to costs. H.B.T./N‑279/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.