1989 PLP 259 (PLC)

(c) Industrial dispute ‑‑‑Dismissal for misconduct‑‑Bank employee‑‑Domestic enquiry not conducted properly‑‑Statement of accused obtained on a questionnaire and opportunity of cross‑examining prosecution witnesses not afforded‑‑Dismissal order not sustainable. Mahmood Abdul Ghani for Appellant. Wasi Ahmad for Respondent Date of hearing: 1st February, 1988. This is an appeal filed by the appellant Bank against an impugned order, dated 22‑9‑1987, passed by the Sind Labour Court No. Vth at Karachi who had allowed the grievance petition under section 25‑A, I.R.O. 1969, directing his reinstatement in service with full back benefits.

2. Brief facts of the case are that the respondent claimed to have been appointed as a Junior Clerk in the appellant bank on 2‑6‑1972 and with the passage of time, he rose to the category of Grade III officer and at the relevant time he was working as Manager, Barness Street Branch, Karachi in which only 5 employees including the Security Guard etc. were working. The claim of the respondent further was that on 1‑2‑1981, he was placed under suspension which continued till 16‑10‑1982, the date of dismissal from service. The respondent claimed that after expiry of about one and half month from the date of suspension, he was issued a charge‑sheet dated 15‑3‑1981 alleging 5 charges against him in respect of allowing unauthorized over drawings amounting to more than Rs. 2,00,000 to the various parties, payment to fictitious parties, unauthorized installation of telephone in the Branch and sanctioning unauthorized leaves against Gold to the parties, as well as unauthorized absence from duty with effect from 1‑10‑1980. The respondent claimed that he submitted his satisfactory reply to the charge‑sheet on 18‑3‑1981 but, a letter of enquiry, dated 10‑1‑1982. i.e. again after expiry of about 10 months was issued directing him to appear before one Jalaluddin Azim Abadi, Enquiry Officer on 17‑1‑1982, and that when he appeared before the said Enquiry Officer he did not record the statement of any witness in presence of the respondent. It was further claimed that only a typed questionnaire accompanied by the letter of the Enquiry Officer, dated 14‑7‑1982 was handed over to him and that on the same date, he had handed over an application to the Enquiry Officer which was acknowledged by the Enquiry Officer. It was further claimed by the respondent that no enquiry proceedings were ever conducted since the date of issuance of the enquiry letter till the time of his dismissal front service and' that he was not afforded any opportunity to either cross-examine the prosecution witnesses or to produce witnesses in his defence. It was lastly claimed by the respondent that very small number of staff members were working in the said Branch of Barness Street and that he used to perform the work of receipt, despatch, clearing, balancing, maintaining accounts, passing of cheques, and preparation of statement and records thereby performing clerical and manual work. Being aggrieved with this dismissal order, the respondent claimed to have submitted a departmental appeal on 17‑10‑1982 but no reply was received by him till 7‑12‑1984 so, he sent grievance notice, dated 5‑2‑1985 and as no reply was received he submitted his grievance petition under section 25‑A, I.R.O. 1969 before the learned Labour Court.

3. The appellant bank resisted the petition on the grounds that as the appellant Bank was a Statutory Body and functioning under the control and supervision of the Federal Government and that all the employees of it were governed by the provisions of Wage Awards and also their terms and conditions of service were regulated by the National Bank of Pakistan (Staff) Service Rules, the4efore the provisions of Standing Orders Ordinance, 1968, were not applicable to the employment of the appellant bank. Further, the grievance petition of the respondent was not maintainable on the ground that the respondent was a Branch Manager in his capacity of Officer Grade III and thus not a workman to maintain the same and that all the charges levelled against him were fully established in a lawfully held domestic enquiry by one Mr. Jalaludin Azim Abadi resulting in This dismissal from service. Lastly, it was claimed by the appellant bank that the grievance notice and the grievance petition were hopelessly time‑barred and not maintainable.

4. Both the parties filed their respective affidavit‑in‑evidence and they were (Ali Nawaz Budhani, Appellate Tribunal) duly cross‑examined. Thereafter the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. Mahmood A. Ghani, the learned Advocate for the appellant bank and Mr. Wasi Ahmad, the learned representative for the respondent and have also very carefully perused the record and proceedings of the case as well as the written arguments filed by Mr. Mahmood A. Ghani, while Mr. Wasi Ahmad has failed to submit his written arguments. At the very outset 1. would observe here that the impugned order is well‑reasoned and is based on correct appreciation of the entire evidence brought on record by the parties and relying on consistent views of this Tribunal and other authorities of the superior Court, therefore, it needs not to be interfered with it. Mr. Mahmood A. Ghani the learned advocate for the appellant Bank has miserably failed to substantial his arguments that as the respondent was not a workman, therefore, he was not entitled to maintain his grievance petition. There is no evidence on record to show that the respondent was not performing the duties of manual and clerical in nature. I also do not find any substance in the arguments of Mr. Mahmood A. Ghani, the learned Advocate for the appellant bank that there was no provision of second grievance notice to be served upon by the workman. The appellant bank was duty bound to decide the departmental appeal of the respondent within a reasonable time and it was not supposed that such appeal should remain pending disposal indefinitely. Therefore, the plea of Mr. Wasi Ahmad, the learned representative for the respondent seems to be correct that when he did not receive the reply to his departmental appeal, he sent a reminder to that appeal. In my opinion Mr. Mahmood A. Ghani is not correct to interpret that the reminder C be treated as grievance notice and the factual grievance, be considered as second grievance notice. The respondent workman was quite right in waiting for the reply of his appeal and thereafter reminder and thereafter in sending his grievance notice followed by the grievance petition. Mr. Wasi Ahmad, the learned representative for the respondent is quite correct in relying upon a case, reported in 1983 P L C 1140. As regards the point whether the respondent was a workman or not Mr. Wasi Ahmad, the learned representative for the respondent has submitted that in view of the evidence brought on record and in view of the settled principle of Law, as reported in P L C 1985 page 262, P L C 1984 page 676, P L C 1984 698, P L C 1984 at page 493, 897 and 1273 the respondent is a workman competent to maintain his petition before the learned Labour Court. I see much force in those contentions of Mr. Wasi Ahmad and would hold the same as had been taken in these authorities. It is also an admitted position that no domestic enquiry, as required under Law, was conducted against the respondent. In view of this admitted position, I would hold the dismissal of the respondent from his service in view of this type of enquiry, could not be sustained and is liable to be set aside. Further, it is also an admitted position that the same charges were also the subject‑matter of proceedings against the respondent before the Special Court (Banks) Karachi and from there the respondent had been exonerated from these charges, therefore, for the same and one charge, he cannot be punished twice. All the authorities relied upon by Mr. Mahmood A. Ghani, the learned Advocate for the appellant bank are not relevant and applicable to the facts, circumstances and the legal issues of the present case, therefore, I would not agree with any of the contentions as raised by him.

6. For the reasons discussed by me above, I see no reason to interfere with the impugned order and would maintain the same. The present appeal is accordingly dismissed. The respondent is directed to be reinstated in service with full back benefits, forthwith. The amount of back benefits, already deposited by the appellant bank with this Tribunal be immediately paid to him after due verification.

7. As regards the legal objections filed by the respondent against the appellant bank that it had deposited the less amount of back benefits in this Tribunal I would dispose of this application with the direction to the respondent that he can adopt proper legal course for the recovery of the arrears if so before the competent Court or the Authority. A.E./1265/Lb.S. Orders accordingly