2015 PLP 246 (PLC)

MALIK MANZOOR HUSSAIN, J.

The instant Labour Appeal as well as connected Labour Appeal bearing No.4/2013 are preferred against the judgment dated 19-12-2009 passed by learned Presiding Officer, Labour Court, Mardan, whereby a grievance petition filed under 46 of the Industrial Relation Ordinance, 2002, by Habib ul Hassan, respondent, was accepted and termination awarded to the respondent was reduced to reduction to his previous post, i.e., Watchman.

2. Briefly stated facts giving rise to the instant appeal are that respondent, Habib ul Hassan, was initially appointed as Watchman in United Bank Limited and was, later on, promoted as Cashier, vide order dated 9-4-1994. During posted as Cashier at Batkhella Branch, the respondent was charge sheeted on the allegation of misappropriation of the cash amount received from electricity consumers by making delay in depositing the same. After conducting codal formalities, he was terminated from service vide order dated 12-3-2007. The respondent/ employee filed a grievance petition under section 46 of the Ordinance, ibid. After recording pro and contra evidence, the learned Labour Court, Mardan, accepted the petition and the punishment was modified in shape of reduction to the previous post instead of termination, hence, the instant appeals by the parties.

3. Learned counsel for the appellant/Bank contended that in spite of the fact that charge levelled against the respondent were admitted in reply to the charge sheet, thus, the penalty imposed was in accordance with law. He further argued that grievance notice was required to be submitted within thirty days as per provisions of section 46 of the Ordinance, ibid, but the respondent failed to file the grievance notice within the time prescribed by the law. It was further argued that petition filed before learned Labour Court was also badly time barred, therefore, the petition was liable to be dismissed summarily on the ground of violation of the provisions of section 46 of the Ordinance, ibid.

4. Conversely, learned counsel appearing on behalf of the respondent, contended that the respondent was terminated without observing codal formalities of show cause notice as well as regular enquiry, therefore, the order of termination passed against the respondent was void ab initio. It was further argued that the respondent deposited the alleged amount by paying the surcharge from his own pocket, therefore, no loss was incurred to the Bank or to the Consumers and prayed that the respondent was liable to be re-instated to his previous post of Cashier which was not duly considered by the learned Labour Court.

5. Arguments heard and record perused.

6. There is no denial to the fact that the respondent was posted as Cashier in United Bank Limited, Batkhela Branch, when he was charge sheeted on the allegations that he received cash amount of Rs.54498 on 26-8-2006 from the Consumers against payment of electricity bills which were not deposited/transferred to the PESCO account till 14-9-2006 and, as such, withheld the same for twenty days. Similarly, he was also charge sheeted on the allegation to receive cash amount of Rs.42545 on 28-9-2006 from electricity consumers which were also not deposited till 16-10-2006. The respondent was charge sheeted on 20-12-2006 to which he replied on 11-1-2007 wherein he admitted all the allegations levelled against him and after conducting inquiry into the matter, his termination order was issued on 12-3-2007.

7. As per mandatory provision of section 46 of the Industrial Relation Ordinance, 2002, the respondent/employee was required to have filed a grievance notice within the time prescribed, i.e., 30 days but the grievance notice was given by him on 2-5-2007. The grievance petition was filed on 7-6-2007 and no application for condonation of delay was filed with the petition. It is well settled law that if the grievance notice to the employer in terms of section 46(1) of the Ordinance, ibid, is not served within specified period of one month, party cannot approach to the competent court of jurisdiction for the redressal of his grievance until and unless he express satisfactorily each and every day delay to the respective forum. In the case of Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2007 PLC 94), honourable, the Supreme Court of Pakistan in such like situation laid down the law that where the party approached the Court of competent jurisdiction for redressal of grievance beyond the specific period of limitation, the same was not maintainable as valuable right accrued to the other side due to inaction of the employee. It was further laid down in the referred judgment that duty of the court is to determine question of limitation irrespective of the fact whether such plea was raised or not by virtue of section 3 of Limitation Act, 1908 and on that score alone the grievance petition was dismissed as held by the apex court. Similar view was adopted in the case of Muhammad Naeem v. General Manager, Muslim Commercial Bank and another, (2007 PLC 580) and in the earlier judgment passed in the case of Istafta Nosh and 5 others v. The Chairman Port Qasim Authority Bin Qasim and 7 others (2001 PLC 214).

7. So far as contention of learned counsel for the respondent that the employee has deposited the amount and no loss was incurred to the Bank or the Consumers is concerned, this court does not agree with his contention as the business of Bank is based on mutual trust between the Bank and its Customers and any slight doubt or suspicion with regard to activities and business of Bank and dishonesty of its employees would shake confidence of its customers resulting in ruination of its business, thus, in such eventuality awarding of termination from services was not a wrongful act as subsequent deposit would not constitute a mitigating circumstance in favour of employee. Reliance is placed on Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. and others (2008 SCMR 909) wherein in similar situation when an employee subsequently deposited the amount; it was laid down by the honourable, apex court that such deposit would not be considered as a mitigating circumstance in favour of the employee to allow him reinstatement in service of the Bank. In the case of Izzat Baig Awan v. Habib Bank Limited (2004 SCMR 98) similar view was expressed by the apex Court and it was held that institution of banking is one of trust reposed by public at large and Bank Authorities in peculiar nature of the duties of their employees cannot afford breach of trust by retaining in service people, who are involved in such preach of trust. Reliance is also placed on the case of Muslim Commercial Bank Ltd. Karachi v. Iqbal Ahmed ( 2002 PLC 331).

8. There is also another aspect noticed by this Court that the grievance petition was filed on 7-6-2007 but vide order dated 27-6-2009 application was allowed by learned Labour Court to amend the grievance petition and fresh grievance petition altogether on fresh ground was filed on 15-7-2009. It is well settled law that after conclusion of trial and that too, by recording evidence of the parties, no fresh grievance petition on altogether fresh ground was to be allowed in order to fill the lacuna by an employee. Though the respondent/employee did not examine any fresh evidence in support of amended grievance petition and failed to built up a new case but conduct of the learned Labour Tribunal was alien to law, thus, it was necessary for this Court to make observation with regard to amended grievance petition. In view of what has been discussed above, this court is of the view that the impugned judgment of learned Labour Court is not in line with law and, as such, is not sustainable, therefore, the instant appeal is allowed, impugned judgment passed by learned Labour Court is set aside, and grievance petition filed by the petitioner is dismissed. Similarly, appeal filed by the respondent bearing No.4/13 is also dismissed. MM/213/P Appeal dismissed.