1989 PLP 300 (PLC)

This judgment shall dispose of two petitions titled Muhammad Iqbal v. National Bank of Pakistan and Noor Ahmad v. National Bank of Pakistan as both relate to the same incident of embezzlement of rupees three lacs which ultimately resulted in dismissal of both the petitioners. The Enquiry Officer against both o1 them was the same and he made a joint report holding both the petitioners guilty of the charge levelled against them.

2. An amount of rupees three lacs was received by Jaffar Hussain, Cashier recharge from National Bank of Pakistan Sangla Hill Branch for deposit in the Civil Lines Branch Qila Sheikhupura. The petitioner (Muhammad Iqbal) is a Bank Guard armed with a rifle and he was deputed with the Head Cashier to the Civil Lines Branch Sheikhupura to deliver rupees three lacs in that branch. This amount was, however, not deposited in the Civil Lines Branch and after discovery of this fact both the petitioners were charge‑sheeted and dismissed on 16‑1‑1983. Jaffar Hussain Shah is still absconding. The charge against Noor Ahmad petitioner is that he did not enter the cash remittance of rupees three lacs in the cash remittance register‑B‑58 on 27‑12‑1977 before sending the remittance to the Civil Lines Branch, Sheikhupura he did not despatch the cash invoice in respect of the cash remittance of rupees three lacs by post to the Civil Lines Branch, Sheikhupura, he destroyed/willfully misplaced with a mala fide intention dated 4‑12‑1977 pertaining to National Bank of Pakistan General Account for rupees three lacs and also a relative cash invoice dated 27‑12‑1977, he did not obtain/call for the receipted invoice in respect of rupees three lacs from Jaffar Hussain Shah on his return to the branch in the evening on 27‑12‑1977 with the result that the invoice could not be detected on the day and this fact showed his connivance in embezzlement; as the receipt invoice was not handed over to him by Jaffar Hussain Shah, he did not make any investigation nor checked up whether the amount of rupees three lacs was deposited in the Civil Lines Branch Sheikhupura and he did not reconcile the outstanding entry pertaining to cash for about four years with the result that this embezzlement could not be detected till pointed out by the Auditors in 1981.

3. Both the petitioners had denied the charges levelled against them. The contention of Muhammad Iqbal is that he did accompany Jaffar Hussain Shah for depositing the amount in Sheikhupura Branch and he was always sent by Jaffar Hussain Shah to attend to some other official duties, therefore, he could not say nor could he detect whether this amount was actually deposited in the Civil Lines Branch, Sheikhupura. In his statement as P.W.1 in this Court he admitted that it was his duty to guard the cash alongwith the Head Cashier for depositing the cash at Sheikhupura. In face of this admission he cannot raise the plea that he used to attend some other duties when the embezzlement was committed by Jaffar Hussain Shah, Cashier Incharge. He has repeated this contention even in his explanation to the charge‑sheet but this contention cannot exonerate him from his own responsibility to keep guard on the cash till it was actually deposited with the Civil Lines Branch. Otherwise there was no fun in sending him alongwith the cash. He has further admitted that whenever he delivered dak at Sheikhupura in different offices an entry was made in the peon book. If that be the position he must have called for the peon book and produced it in the Court. It is correct that his statement was recorded by the Enquiry Officer at the time when he was in judicial lock up but he did not raise any objection that no enquiry should be held against him in the judicial lock up nor did he make any statement before the Enquiry Officer that he wanted to produce defence witnesses which he shall produce after he is released from jail. It means that he did not want to produce any defence witnesses. In fact this contention of the petitioner raised in paragraph. 4 of the petition have no merit. The petitioner Muhammad Iqbal assailed the impugned order on the grounds mentioned in paragraphs 4 and 5 of his grievance petition and those grounds are:‑ (1) The petitioner was not given an opportunity to produce his witnesses. I have already replied to this contention. No witness was in fact needed because even the petitioner has admitted that the amount was entrusted to him and he had accompanied the Cashier Incharge to deposit this amount in the Civil Lines Branch Sheikhupura. (2) The Enquiry Officer acted at the instance of the management and under the pressure of the management. No allegation of this type in the enquiry proceedings nor any evidence was produced. The petitioner never expressed his no confidence against the Enquiry Officer rather, as the enquiry started, he clearly stated that he did not have any objection if the enquiry is held by Malik Muhammad Ismail. (3) No second show‑cause notice was served upon the petitioner nor he was given personal hearing or enquiry report. This is not a requirement of law so as to set aside the impugned order because of the non‑issuance of the second show‑cause notice and omission to give personal hearing.

4. It may be stated here that the petitioner was dismissed from service on 16‑1‑1983 whereas the grievance notice was served on 6‑6‑1983 whereas the petitioner should have brought his grievances to the notice of his employer within three months from 16‑1‑1983. Service of the grievance notice was, therefore, time‑barred. The fact that he has filed an appeal before higher forum is no explanation for condonation of delay because he could serve the grievance notice within a period of three months and also file appeal before the higher forum, if he failed in appeal he could come to the Court within time and in case his appeal was accepted he need not have approached the Court. It cannot be said that he kept quiet because his appeal was pending. The remedy of serving a grievance notice and filing of appeal are not exclusive of each other and could be pursued simultaneously.

5. Similar are the contentions raised by Noor Ahmad and those contentions also remain unproved. It was the case dependent upon the production of documents and if the petitioner wanted to show that he was not guilty of any of the charges levelled against him he should have produced the bank record but he A did not summon any record from the bank to submit it for examination of the Court. I will presume that the record, if produced by him in Court, would not have shown his innocence and it is for this reason he did not take courage for producing the record in the Court. Learned counsel for the respondent while opposing the petition of Noor Ahmad contended that he was an officer, therefore, he is not a workman and could not come to the Labour Court. Yet another contention raised by him was that the Labour Court has no jurisdiction to hear the petition in view of the Wage Commission Award. Noor Ahmad H petitioner did not have any power of hire and fire, he could not appoint anybody nor he could dismiss any other employee. He was performing dudes of clerical nature, therefore, he is a workman for all intents and purposes. The Wage Commission Award does not oust the jurisdiction of this Court in view of 1983 C P L C 468 wherein 'it was held that the Labour Court has the jurisdiction to hear the cases of Bank Employees notwithstanding the Award of Wage Commission. No other contentions were pressed before me.

6. The upshot of what has been stated above is that both the petitions have no force and the same are dismissed, leaving the parties to bear their own costs. M.Z.S./621/Lb. S Petitions dismissed.