1998 PLP 2109 (SCMR)

Rr. 4 & * 5

Charge of misappropriation of specified amount against employee and his dismissal from service on account thereof

High Court had ordered re-instatement of employee

Validity

Only circumstance against employee was that specified Form (E-34) bore his seal

Labour Appellate Tribunal had even found that possibility could not be excluded that employee's other associate or someone else had excess to the seal of employee

Careful analysis of circumstances would indicate that judgment of High Court in analysing material on record did not suffer from flaw

Appeal against judgment of High Court was, thus, not warranted. Kh. Saeeduz Zafar, Advocate Supreme Court and Rana Maqbool Ahmed Qadri, Advocate-on-Record (absent) for Appellant. Farooq Zawar Qureshi, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record (absent) for Respondent No.

1. Date of hearing: 23rd April, 1998 SH. RIAZ AHMAD, J --This appeal through leave of this Court is directed against the judgment and order dated 16-2-1994 delivered by a learned Single Judge of the Lahore High Court whereby writ petition filed by the respondent was allowed and he was ordered to be reinstated in service.

2. The facts in brief giving rise to the institution of this appeal are that the respondent, an employee of the State Bank of Pakistan, was working as Coin/Note Examiner Grade-II in the Bank since 22-11-1957. On 6-2-1976 a checking was carried out during which it transpired that as Note Examiner the respondent had defrauded the bank to the tune of Rs.1,20,000 inasmuch as 12 packets of Rs.100 notes which, as per bank record had been destroyed earlier, were found lying in the vault indicating that 12 packets valuing Rs.120,000 had been misappropriated from the bank and were, thus, being again processed for cancellation and destruction. Accordingly in terms stated above the respondent was served with a charge sheet on the basis of allegations made in the show-cause notice dated 20-4-1976. The respondent submitted reply denying all the charges. One Muhammad Afzaal Siddiqui was appointed as an Inquiry Officer, who after completing the inquiry submitted his report and came to the conclusion that the respondent was not guilty of the charge. Dissatisfied with the inquiry report, the Manager of the appellant bank remanded the case to the Inquiry Officer for holding fresh inquiry on the ground that certain important aspect of the case had escaped the notice of the Inquiry Officer. In course of fresh inquiry, further evidence was recorded as a result whereof the Inquiry Officer rendered verdict of guilty. On the basis of the said report, an opportunity of personal hearing was afforded to the appellant and in the end the respondent was dismissed from service with effect from 23-5-1977.

3. Aggrieved by his dismissal the respondent took an appeal, which was rejected and the decision was conveyed to him on 18-3-1978. After having served a grievance notice on 7-5-1978, the respondent then filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance).- Before the Labour Court the appellant bank raised the question of limitation, but 'the said contention was repelled and the petition was found to have been moved in time. On behalf of the appellant it was contended that under section 38(i) of the Ordinance, the Wage Commission Award made in respect of the employees of the appellant bank would override any other law relating to the terms and conditions of service of the bank. It was further urged before the Labour Court that in para. 125 of the Wage Commission Award, 1978, this aspect had been considered and it was laid down that the provisions of the Standing Order Ordinance, 1968 are not applicable to the employees of the appellant bank. However, the plea of the bank that the respondent had no right to file a petition under section 25-A of the Ordinance was repelled and the Labour Court held that the matter was to be decided under the provisions of the Award of the Wage Commission and the question of punishment imposed upon an employee of the bank could be probed into to determine whether such punishment and the procedure adopted was in accord with the provisions of. The Award. Reference in this behalf was made to the Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975 framed by the Wage Commission and contained in para. 258 of the Award of 1974. By placing reliance on rules 4 and 5 of the said Rules, it was contended on behalf of the respondent that the Manager was not competent to remand the case to the Inquiry Officer and therefore, the second inquiry was void and had no legal effect. In our view this contention was rightly repelled in the light of rule 5 of the aforesaid Rules because no embargo had been placed under the Rules on the powers of the Manager to remit the case to the Inquiry Officer for obtaining a report from him after coming to the conclusion that the earlier report was not proper. It was also rightly decided that the respondent had been afforded adequate opportunity to defend himself and the findings of the Inquiry Officer were not perverse and furthermore it being in the nature of domestic inquiry was not governed by the Law of Evidence or the Criminal Procedure Code. It was also correctly observed by the Labour Court that there was no substance in the contention raised by the respondent that the inquiry report had not been given to him and he had not been called upon to show cause as to why he should not be dismissed from service. The Labour Court, thus, rightly came to the conclusion that the procedure prescribed under rules 4 and 5 of the Rules referred to above applicable to the employees of the appellant bank under the Wage Commission Award of 1974 was followed in letter and spirit. Thus, the petition was dismissed on 7-6-1979.

4. Aggrieved by the decision of the Labour Court, an appeal was taken by the respondent, which was dismissed vide order dated 28-2-1983 by the Punjab Labour Appellate Tribunal on the ground that the respondent as an employee of the bank was engaged in the administration of the State, and therefore, under section 1(3)(b), the provisions of the Ordinance were not attracted to redress the grievance of the respondent. Dissatisfied with these orders, the respondent then invoked Constitutional jurisdiction of the Lahore High Court by way of filing a writ petition, which was accepted vide order impugned and the dismissal of the respondent was declared to be without lawful authority and without jurisdiction and he was ordered to be reinstated in service. The appellant bank assailed the said order through a petition seeking leave to appeal, which was granted vide orders dated 8-5-1994.

5. We have heard the learned counsel for the appellant and the respondent at length. The first and foremost question falling for determination to resolve the controversy arising in this appeal would be to consider the provisions of section 1(3)(b) of the Ordinance under which an employe connected with the administration of State cannot avail any remedy under the Ordinance. This question fell for consideration before this Court in the case reported as Faqir Muhammad v. The Director of National Savings, Multan Region, Multan (PLD 1992 SC 127) and while placing reliance on Employees Old-Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) and Sindh Road Transport Corporation v. Staff Union (1975 PLC 361), the interpretation given to the expression 'administration of the State' in 1988 SCMR 765 was adopted. It will be advantageous to reproduce the same, which reads as under:-- "The State has multifarious functions to perform in different fields in discharge of its Constitutional responsibilities, affecting the citizens in almost all walks of life. For this reason it is the largest employer of manpower in the country. If all persons who are concerned with implementing Constitutional responsibilities of the State, are to be treated as employed in the administration of State within the meaning of clause (b) of section 1(3) of the Ordinance it will, as a consequence, effectively put the largest employer in the country beyond the reach of labour laws. This could hardly be the intention behind clause (b). It is to be noticed that certain categories of State employees, for example, those serving in, defence forces and police, have been expressly excluded from the ambit of the Ordinance, even though they discharge duties relatable to the Constitutional responsibilities of the State. If clause (b), ibid, was intended to cover all those who were employed in connection with the Constitutional responsibilities of the State, it would have been unnecessary to specifically exclude certain categories of State employees by name. Quite, obviously, the expression 'administration of State' has been used in a limited sense in the said clause."

6. On the touch-stone of the aforementioned criteria, it is to be seen what exactly were the duties of the respondent while working as Notes/Coin Examiner in the appellant bank. Could it be concluded that his duties were at par with the functions of the administration of the State. No doubt the appellant being the Central Bank of the country has to perform functions in connection with the administration- of the State, but what could those functions be. Such functions, for example, would be to regular monetary policy of the country, the lending and borrowing, controlling the Scheduled banks, etc. But by no stretch of imagination, the respondent who was working as Examiner of the damaged notes and coins, could be considered to be performing functions in connection with the administration of the State. In this view of the matter, we are of the view that the Punjab Labour Appellate Tribunal erred in holding that the respondent could not have sought the redress of his grievance under the Ordinance on account of the bar contained in section 1(3)(b) thereof. Furthermore, before the High Court reliance was rightly placed on behalf of the respondent on the judgment reported as Iftikhar Ahmad and others v. President, National Bank of Pakistan (PLO 1988 SC 53) to contend that those employees whose terms and-conditions of service were governed by an Award of the Wage Commission, can seek redress of their grievance by invoking jurisdiction of the Labour Court.

7. On merits, the record of this case reveals that E-34 forms were in the handwriting and initials of one Maqbool Ahmad, the Re-counter of the respondent in the bank. The signatures of Maqbool Ahmad were partly cut in punches meaning thereby that the packets were punched after the aforesaid forms were signed. by Maqbool Ahmad. Furthermore, if according to para. 94, the respondent had punched the packets, then in the said event, the signatures of the Re-counter Maqbool Ahmad could not have come under the punch holes. It is further pertinent to mention that the house of Maqbool Ahmad had been raided and a number of bundles of currency notes were recovered. The only circumstance against the respondent was that E-34 form bore his seal. In this connection, even the Labour Appellate Tribunal opined that possibility cannot be excluded that Maqbool Ahmad or someone else had got excess to the seals of the respondent.

8. After careful analysis of the facts and circumstances of this case, we are of the view that the judgment of the High Court impugned in this appeal is not exception. Consequently, this appeal fails and is hereby dismissed. However, the parties are left to bear their own costs. A.A./S-91/S Appeal dismissed.