1989 PLP 324 (PLC)

3. The respondent bank had resisted the petition, both on legal as well as factual issues. It was the case of the respondent bank that as the grievance notice and grievance petition of the appellant were hopelessly time‑barred, therefore, they were liable to be dismissed. On facts, it was the claim of the respondent bank that as the appellant did not obey the lawful orders of his superiors tinder which he was transferred from Dadu to Lal Bux Mchsar Branch and was absconding for a period of more than 1‑1/2 months, without any information and thus had remained unauthorisedly absent from his duties for more than 10 days, therefore, after fulfilling the legal requirements, he was rightly removed from the employment. Secondly, it was also claimed by the respondent bank that as the appellant, on a charge of misappropriation, had himself deposited an amount of Rs.744, therefore, it had amounted a confession of the guilt, hence, committed a gross misconduct liable to be dismissed from service.

4. Both the parties have led their respective evidence and they were duly cross‑examined. Therefore, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. M.L. Shahani, the learned Advocate for the appellant and Mr. Mahmood A.Ghani, the learned Counsel on behalf of the respondent bank and have also very carefully perused the record and proceedings of the case as well as the written arguments, submitted by both the parties. At the very outset, I would hold that the learned Labour Court did not fully appreciate the active evidence and documents, brought on record completely fact and other surrounding, circumstances of the present case as well as its legal aspects, while Passing the impugned order. I therefore, hold the impugned order as illegal and without substance, hence, liable to be set aside. To thrash out the truth, it would be justifiable; firstly, to reproduce the so‑called and alleged transfer order dated 17‑4‑1954 of the appellant from Dadu to Kot Lal Bux Muhesar Branch. It reads as under:‑ DADU DU, dated 17‑4‑1954 Du/Gen/Misc/124 To Mr. Shah Nawaz Solangi Cashier, M.C.B. Dadu You are hereby relieved from your duties today forenoon and direct you to report for your duties at our Kot Lal Bux Mahesar Branch immediately. Sd/‑ Manager." This is the only so‑called and alleged transfer order issued to the appellant. A Manager of one Branch has no authority to transfer a person to another Branch. This is the sole function of superior authority controlling the administration of an establishment, like Muslim Commercial Bank which has a number of its branches not only all over Pakistan, but, also outside Pakistan, thus, if a Manager of one Branch had such wide powers, then, there would have been no need for the respondent bank to keep and run against administration Department. A Manager is empowered only to shift/transfer an employee from one Desk to another, but, strictly within his own jurisdiction. In view of this matter, I would hold this type of transfer/relieving order, as void, illegal, unauthorised and not sustainable. It was a plea of the respondent management that this transfer/relieving order was issued by the Manager of Dadu, under the orders of the competent authority. It is false, an after thought, specifically for the simple reason that neither such written instructions/directions of competent authority were produced on record nor even such a mention of the same is available, vide contents of the letter, in question, as already reproduced above. On record, there is also an admitted position that during the period while the appellant was performing his duties at Dadu Branch he was neither questioned for the alleged misappropriation of an amount of Rs.744 nor he was legally proceeded with. Why it was done after a long time, even, from the date of his so‑called transfer/relieving order. It is neither understood, nor it has been convincingly explained or proved on record. It is an admitted position that the appellant had deposited this alleged misappropriated amount. But, it is not known when and why the alleged misappropriation was committed and under what circumstances, this amount has been made to be deposited. There is neither any cogent and detailed evidence on record, nor the learned Labour Court had bothered to deal this charge in detail. Therefore, in my opinion this amount had been made to deposit by the respondent under some pressure or so, misappropriation of an amount of Rs.744 in such circumstances could not be established. As regards the charge of absconding from duties/or remaining unauthorisedly absent for more than 10 days, I would hold it as not sustainable for the main reason that after recovery from ailment and submission of medical certificate, even after receipt of the alleged charge‑sheet, the appellant, admittedly had been permitted to resume his duties and thereafter departmental enquiry had been conducted. If at all the appellant had absented from duty, then, there, was no bar for the respondent bank to legally proceed against such a worker and after complying with all legal and prescribed formalities and procedure, he should have been removed from the employment if the charge would have been fully established. The management had waited for a long time and then, had allowed him to resume his duties and thereafter departmental enquiry was held. This shows that the absence of the appellant was genuine and medical certificate was accepted, so, disciplinary proceedings, under such circumstances, were unnecessary, hence, set aside. Further, after careful examination of the evidence on record, I am of the opinion that the appellant had fully justified the reasons of his not joining the new assignment and thus, remaining absent. As regards the objection of the respondent establishment on 113 the maintainability of grievance notice or the grievance petition being time barred, it is again an admitted position that the appellant had discharged his mandatory duty by submitting his Departmental appeal, but the respondent bank purposefully and deliberately kept the matter hanging indefinitely, therefore, after expiry of a reasonable time, the appellant has rightly served his grievance notice. The respondent bank was duty bound to decide departmental appeal and communicate the decision immediately within a reasonable time' and it cannot be permitted to remain mum and then in case of a litigation, to take a pica that such a litigation was time‑barred. This functioning of the respondent bank was quite biased, contrary to the provisions of Labour Laws, contrary to the principle of natural justice and also contrary to be a guaranteed right of an aggrieved human being and more particularly not in accordance with the teachings of Islam and its Sharlat. I, therefore, hold, in view of these peculiar circumstances, both the grievance notice and the grievance petition, well within time and thus, legally maintainable. The respondent bank must suffer for its latches. On this point Mr. M.L. Shahani, the learned Advocate for the appellant has also rightly relied upon an authority of High Court of Sindh, reported in 1984 P L C 1149. On the other hand, I see no force in the contentions of Mr. Mahmood A. Ghani, the learned Advocate on behalf of the respondent bank. He could not substantiate his case in the present appeal, but, had reiterated his submissions which had already been submitted before the learned Labour Court, therefore, it would be needless to reproduce them in the present decision. Mr. Mahmood A. Ghani, the learned Counsel on behalf of the respondent bank have submitted a number of authorities in support of his case. However, after a careful perusal of all these authorities, I would hold that in view of the peculiar facts and circumstances of the present case, they are distinguishable, hence, not applicable. Each case has its own different facts and merits. In view of the matter, I would hold that the appellant had not committed any act of misconduct and the respondent bank had miserably failed to prove him guilty, therefore, his grievance notice followed by grievance petition well within time. As such, the learned Labour Court‑was not justified in passing the impugned order which is illegal and contrary to the principle of natural justice, therefore, it is set aside accordingly.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The result would be that the appellant is directed to be reinstated in‑ service with 50% (fifty per cent) back benefits, t within seven days of the date of this decision. A.E./1371/Lb. S Appeal allowed.