1994 PLP 403 (PLC)

The respondent No. 1 was serving with the petitioners and was posted as Assistant in the Gardee Square Branch, Lahore. He was charge sheeted for unauthorisedly reechoing electricity Bills and misappropriating an amount of Rs.833.78. He after due formalities was dismissed from service vide order dated 31‑3‑1983. Then respondent No. 1 challenged this order through a grievance petition under section 25‑A of the I.R.O., 1969. The respondent No.2 accepted the petition vide order dated 25‑4‑1984. The result was that the respondent No. 1 was ordered to be reinstated with back benefits. The petitioners filed an appeal before the Punjab Labour Appellate Tribunal, Lahore which partly accepted the appeal vide order dated 12‑3‑1985. The result was that the order as to the reinstatement was kept intact while the order as to the back benefits was set aside. The petitioner have fed the present constitutional petition against the orders of respondents 2 and

3. It came up for preliminary hearing on 27‑10‑1985, when it was admitted to regular hearing and notices were issued to the respondents. It is the respondent No. 1, who has appeared and contested the petition while the other respondents were proceeded ex parte. It is argued that the respondent No. 2 wrongly concluded that Area Chief was not competent to issue charge‑sheet. It is within the domain of Zonal Chief to charge‑sheet the respondent No.

1. It is submitted that Area Chief and Zonal Chief both are competent. In any case the burden of proof was on the respondent No.1 but he failed to produce any evidence, except his own statement. In this behalf reliance is placed on case reported in PLD 1957 Karachi

409. Moreover, the Area Chief acted under the directions of Zonal Chief as is evident from the letter Exh. D‑2, which is appended as Annexure `B' with the writ petition. On merits, it is argued that the order of the dismissal boas set aside only on the technical‑ grounds and even on merits there was nothing to set aside the order of the dismissal. It is added that the allegation that the petitioner received an amount of Rs. 833.78 on 9‑7‑1981 kept with him instead of depositing the same. This allegation was clearly proved by subsequent deposit of Rs. 914.63 on 8‑8‑1981. This amount included the original amount of the bill plus the premium for late payment.

3. On the other hand the learned counsel for respondent No. 1 argued that the petitioner has raised factual controversy, which cannot be made subject of Constitutional petition. It is added that there is nothing to upset the concurrent finding of fact recorded by the respondents Nos. 2 and

3. The counsel in this behalf has relied on the judgment reported as Muhammad Hussain Munir and ethers v. Sikandar and others (PLD 1974 SC 139) and M/s. AEG Pakistan, (Pvt.) Limited v. Sindh Labour Appellate Tribunal Karachi, etc. 1989 PLC

525. It is argued that the respondents Nos. 2 and 3 rightly held that the charge‑sheet was not issued by competent authority and same is supported by the statement of R.W.

1. It is added that the Zonal Chief himself being delegatee cannot further delegate his powers and in this behalf reliance is placed on .a case reported as Habib Bank Limited v. Punjab Labour Appellate Tribunal and others 1991 PLC Labour

20. The arguments were concluded with the submission that neither cashier was produced nor the respondent No. 1 was rebutted nor complainant was examined. The respondent No. 2 was made scapegoat for the cashier. He in this behalf, has referred to para. 12 of the judgment of respondent No. 2.

4. The learned counsel for the petitioners while summing up the arguments submitted that the respondent No. 1 was ordered to be charge -sheeted and suspended under the orders of the Zonal Chief. as is evident from Exh.R/2. It is argued that the authority competent to charge‑sheet and suspend can be different from authority competent to impose the penalties.

5. I have given my anxious considerations to the arguments of the parties and perused the record. The respondents Nos. 2 and 3 failed to appreciate that 'it was the Zonal Chief, who passed the orders to charge‑sheet and suspend the respondent No. 1 as is clear from Exh. R/2 appended with the petition as Annexure `B'. The respondents Nos. 2 and 3 failed to take it to consideration para. 258 of the Wage Award‑I. The findings recorded by the respondents Nos.2 and 3 that the charge‑sheet was not issued by the competent authority are against the provisions of Staff Rules and evidence on record, therefore, the same are declared illegal.

6. Now coming to the merits. The petitioner in reply to the charge‑sheet clearly admitted the receipt of the amount. The relevant portion is as under: "The fact is that on 9‑7‑1981 Mr. Muhammad Akbar brought three bills of different amounts. The said three bills were received by me a: the receiving cashier was sent out for some work by the Manager."

7. He admitted this also when he appeared as P.W. 1 before the respondent No.

2. The statement of Naseer A. Jaffery, Manager of the Gardee Square Branch, Lahore was recorded, This witness was cross‑examined al length by the respondent No. 1 but he could not shake his credit. The respondents Nos.' 2 and 3 failed to take his statement into consideration and also note the following material factors:‑‑ (i) Admittedly it was not duty of the respondent No. 2 to receive electricity bills; (ii) the receipt with the proper stamp was not issued by him on the other hand admittedly receipt was stamped with the rubber stamp, which was pot meant for the purpose; and (iii) the amount so recovered was neither entered in the scroll of payments received on behalf of the WAPDA nor the respondent No.1 kept the copy of the list prepared by him and allegedly handed over alongwith the cash to the cashier nor obtained receipt from the cashier on the copy of the list nor got the amount adjusted.

8. It is not possible to believe this bard and bold contention that the manager asked him to perform duty of some body else and did not provide him with the stamp and the scrolls for entering the bills. The Courts below failed to appreciate that after admitting the receipt of the amount, it was for the respondent No. 1 to explain its adjustment. The onus was very heavily on him and he failed to discharge the same. It is against normal human behaviour. It is not possible to conceive of financial institution like Habib Bank proceeding in such a careless fashion. Above all the respondents Nos. 2 and 3 failed to notice that why the AVP involved him? Neither there is any suggestion of mala fide nor there is anything on record. This is another fatal defect in the defence which the respondents Nos. 2 and 3 failed to appreciate. The bare production of original electricity bills C‑II and C ‑III is sufficient to prove the guilt of the respondent No. 1.

9. The upshot of this discussion is that this writ petition is accepted with costs and orders of the respondents Nos. 2 and 3 dated 25‑4‑1984 and 12‑3‑1985 are respectively set aside. The result is that the grievance petition of respondent No. 1 is dismissed with costs throughout. H.B.T./H 12/L Petition accepted.