1993 PLP 125 (PLC)

25‑9‑1984 Clearing Rs. 55,000.00 9. 4‑12‑1984 Clearing Rs. 2,080.00 10. 12‑12‑1984 Transfer Rs. 3,001.88 (3) That his past record was also not very satisfactory and he was a habitual late comer." The reply was found to be unsatisfactory and domestic enquiry was ordered. It was conducted by one Khalid A. Farooqui. The report was submitted on 25‑8‑1985 and the said appellant (hereinafter referred to as the petitioner) came to be dismissed from service on 14‑9‑1985.

5. The petitioner had then filed an appeal before the Review Committee which was rejected on 27-1‑1986. The grievance notice was despatched on 24‑3‑1986 and there being no reply, the petition was filed before the Labour Court.

6. The Labour Court originally seized of the matter allowed the petition but without back benefits. This order of reinstatement came to be reversed in Appeal by this Tribunal. This led to the filing of a writ petition before the High Court by the said petitioner.

7. It was observed therein that the Labour Court was very much influenced by the decision of the Criminal Case in which the petitioner had been acquitted by the Special Court (Offences in Banks), Karachi while the Appellate Tribunal also confined its attention to the proposition that there was no bar to domestic enquiry, which resulted in the dismissal of the petitioner from service. It was observed that the main grievance of the petitioner had not been decided by either forum. The impugned order was therefore quashed and the case was remanded to the Labour Court with the direction that the grievance petition under section 25‑A of the I.R.O. should be decided in accordance with law. It vas further observed that the parties would be free to raise all the contentions which had been taken up in the writ petition before the High Court, and if so required, lead additional evidence.

8. On remand the petitioner had filed afresh his affidavit in evidence. So did Khalid Ahmed Farooqui, the witness of the respondents. Certain documents were also brought on the record. The other witness examined by the respondent was Abdul Kalam; Deputy Post Master.

9. The Labour Court, for the reason given by it coming to the conclusion that the dismissal of the petitioner from service was not sustainable, set aside the dismissal order with the direction that he was to be reinstated in service within a month thereof. However, as there was no averment in the petition about' non‑employment, it disallowed back benefits. The petitioner has therefore filed an appeal challenging the denial of the back benefits while there was an appeal filed by the respondent, against the order of reinstatement.

10. Before adverting to the merits of the case it will be in the fitness of things to examine certain contentions which have been raised by the respondents about the maintainability of the petition itself and by the appellant about the validity of the domestic enquiry culminating, in his dismissal from service.

11. A contention had been raised earlier that the Labour Court had no jurisdiction to entertain the grievance petition of a Bank employee under section 25‑A of the I.R.O. but the same was not pressed before me. Even the challenge to the territorial jurisdiction, though raised, was in muted tones. All need say is that it is devoid of any merit because the Head Office of the Bank is at Karachi, the petitioner's appointment letter was issued from Karachi, the order of dismissal was from there and the appeal was addressed to the Head Office at Karachi where it was rejected. Nothing, therefore, will turn on the same.

12. The next contention was that the petitioner was an officer vested with. supervisory jurisdiction and drawing a pay of more than Rs.800 per month. The petition therefore would not lie. The matter does not end there. We have got to see as to what was the nature of petitioner's job and duties. In para. 9 of the affidavit in evidence filed before the Labour Court, he had detailed the same which is reproduced hereunder: (a) Preparation and issuance of interest warrants. (b) Filing job of misc. correspondence. (c) Preparation of monthly/quarterly statements under the instructions of immediate Officer Incharge. (d) Maintenance of Shares Register by making entries of issued bonds, calculation of interest and their entries and receipts. (e) I was deputed by the respondents and was authorised for collection of Government Bonds from the State Bank of Pakistan in lieu of shares certificate and I also used to deliver statement of interest warrants. (f) I used to put signatures on interest warrants to confirm the figures and entries in the relevant records maintained by the respondents and prepared by the applicant, which were finally signed by the Officer Incharge as a final authority. (g) No other staff of the respondents was subordinate to me or directly responsible nor. I have ever performed supervisory nature of work in the respondent's establishment. (h) The other Grade‑III Officer, namely, Mr. Ansarul Hassan, though designated as Officer was doing regularly the job of a Typist." This assertion has gone unchallenged in the cross‑examination. Even the Power of Attorney, alleged to have been executed in his favour, and on the, record, is stereo‑typed in nature. In this state of affairs the objection raised against the maintainability is totally devoid of any merit. It might as well be mentioned that in the case of Anwarul Haq Qureshi v. Habib Bank Limited 1986 PLC 169, it was held that a Grade‑III Officer in the Bank, as the petitioner is, is a workman. The contention, therefore, stands repelled.

13. There is a further contention that there was no grievance notice at all and in the absence of the same the petition could not be maintainable. The petitioner in his petition before the Labour Court had expressly mentioned, that upon dismissal of the review application he had served the respondents with the due grievance notice on 24‑3‑1986. In evidence had also stated that the delivery of the grievance notice to the respondent was by hand and also through post. In support of the contention that service also had been effected by hand delivery, a copy has been filed which bears the seal of the bank and the initial of one `Larik' who is an employee of the Central Office of the Bank. The copy of the postal receipt also had been filed alongwith the acknowledgement due card. On the top of the notice the seal of the Allied Bank had been fixed with an initial and date. This aspect of the matter was also not tested in cross -examination. Nor it finds a place in the affidavit‑in‑evidence filed by Khalid Ahmed Farooqui.

14. However, in the additional affidavit in‑evidence the latter had stated that he had personally checked the Central Office of the Bank and there was nothing to show that the said notice was received by the respondent Bank either by post or hand delivery. However, no `inward' or `outward' register was chosen to be produced to substantiate these assertions.

15. In this very context it might be mentioned that Mr. Farooq Abdul Ghani had urged that the Departmental Appeal had been filed beyond the period of three months and "therefore the period spent in the Departmental Appeal could not be availed to extend the limitation for the service of the notice on 24‑3‑1986". However, this specific plea had not been raised in the reply statement though in the petition filed by the petitioner it was expressly mentioned that the appeal before the Review Committee had been rejected on 27‑1‑1986. In the absence of a specific plea the contention loses all force as it was a mixed question of fact and law. It is too late in the day to set up this contention now.

16. We might as well look to the contentions raised on behalf of the petitioner.

17. The first was, that the charge‑sheet was a belated one and therefore the whole proceedings thereafter, were of no effect or consequence. Mr. Siddique Mirza urged that the cheque had been encashed in December, 1984. However it is not the question of the loss of the cheque or its encashment but the knowledge of the petitioner's misconduct to the employers. Standing Order 15(4) reads as under: "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman:" Admittedly Abdul Waheed Aziz had addressed the letter to the Manager of the Central Branch of the Bank on 11‑6‑1985 and the charge‑sheet was issued on 26‑6‑1985. The accusation of time‑bar within the meaning of clause 15(4) of the Standing Orders Ordinance in that context is therefore not available to the petitioner.

18. The next contention of Mr. Siddique Mirza, learned counsel for the petitioner was that in view of the order of acquittal passed by the Special Court (Offences in Banks) Karachi, the findings of the domestic enquiry are hardly of any consequence and therefore the dismissal of the petitioner was not sustainable.

19. There is a plethora of case‑law on the point that the order of acquittal in a case is no bar to the holding of domestic enquiry.

20. We might as well look to the circumstances which persuaded the learned Judge to give the verdict that was given. The considerations were that there was no proof of forgery, that the version furnished by Mairaj needed corroboration, that Abdul Waheed Aziz on whose report the case had started had gone away to America and therefore any thing stated by the witnesses would be mere hearsay, that Abdul Waheed Aziz's signature had also not been proved and in view of these short‑comings it could not be said that the case had been proved beyond reasonable doubt.

21. The matter for consideration before the Enquiry Officer would be not the satisfactory proof of mens rea or the proof whether the signature of endorsement of Abdul Waheed Aziz on the back of the cheque was genuine or otherwise. The question before the domestic enquiry was as to how the proceeds of a stolen cheque had been deposited in the account of an officer of their, own Organisation. Admittedly the cheque was deposited in his account. Could the continuance of an employee whose reputation had at least been under investigation of the police and otherwise too demanded scrutiny be retained by them? The contention of the learned counsel that he bank had nothing to do with it as it was a matter between two private parties and reference to the case of Qazi Mushtaq v. State NLR 1988 Cr. page 162 has hardly anything to commend.

22. The Appellant all along has admitted that the cheque in question had been deposited in his account which he was maintaining with the Central Branch of the Bank. However, he has maintained that the endorsement thereon was not made by him. In his statement at the enquiry and also in cross‑examination he made a blank statement that his account had been used by Mairaj for depositing the cheque and later the said Mairaj managed to get a cheque issued by him to draw the amount. The latter had asked him to give a cheque of the amount deposited. It was in the name of one Naim Hashmi. In his cross‑examination before the Labour Court, after the remand of the case, he had stated that the pay‑in‑slip of 1984 account had been misplaced, and veering round from the earlier stand added that he had given the cheque not in the name of Naim Hashmi but it was blank and had been passed on to Mairaj in good faith. All that speaks for itself.

23. On the petitioner's own showing the deposit of the cheque in question had been made in his account on the 12th of December, 1984. The day earlier, undisputedly he had a credit balance of Rs.106 in his account. The very day that Rs.3,001 were deposited in his account, he withdrew the same.

24. Once the accusation had been made against the petitioner, his account was also scrutinised by the Bank authorities and it was found that there were heavy transactions throughout the year 1984, some of the deposits going upto rupees three lacs at a time. The second count of the charge that he had indulged in business may have any substance or may not have, and I hasten to add that it has not been substantiated, but it goes a long way to show that he could not explain it away. He said that the money had come from his father, his brother‑in‑law Zubair and his friend Islamuddin. When tested in cross-examination he could not supply the addresses of Zubair and the other friend. It is rather naive, if not bizzare.

25. Abdul Waheed Aziz has not been examined. It has to, be found from the judgment of the High Court that he was abroad, but otherwise too before his departure his enthusiasm had wared as according to him his claim had been satisfied. But I don't see any reason to differ from the conclusion reached by the Enquiry Officer that the allegation against him stood proved. It is true that the Enquiry Officer has mentioned in the concluding paragraph that he could not investigate the matter thoroughly as there seemed to be other operators involved in the transactions. That is beside the point.

26. The charge No. 3 (irregular attendance) has gone by default and as I mentioned earlier, no construction could be placed upon the second charge in regard to the petitioner's involvement in business against the Banking Rules and Practice. But there is no conceivable explanation of the petitioner's role in the encashment of the cheque in his own account. It is also note worthy that he was not a stranger to Naim Hashmi, who belonged to the Postal Department.

27. The question that remains to examine would be whether the domestic enquiry was fair and proper and the rules of natural justice were duly observed?

28. It is to be seen that all the pages of the record of the enquiry are duly signed by the petitioner and there was no protest at any time against the conduct of the Enquiry Officer. There is only one accusation and that is that the latter had persuaded him not to bother about defence witnesses as he had no need of the same. Patently that is a figment of the petitioner's imagination as he offered no defence, notwithstanding two rounds in the Labour Court. It is true that he had asked for certain papers to be supplied to him and the respondent bank did not comply with the same. Those documents were: "

1. Photocopy of complaint as lodged by Mr. Abdul Waheed Aziz of American Express International Banking Corporation.

2. Photocopy of the cheque under question for US 200 Dollars.

3. Photocopy of his A/c statement of the whole year.

4. Any related document which have been used during the preliminary enquiry.

5. The name of the person/persons who had concluded the enquiry.

6. Photocopy of the pay‑in‑slip of US $ 200 through which the said cheque was deposited."

29. The charge‑sheet gave all the details and information as to what he was to meet. It is normal to presume that he received Bank Statements regularly and if he did not have them he could ask for the same, the normal way. The report of the State Bank, if any, has not been availed of even later. The perusal of the list shows that even the non‑supply of these documents, before the enquiry had started, could hardly cause any prejudice. And if there was no second show‑cause notice, nothing would turn on the same. (See 1988 SCMR 1352 and 1982 SCMR 460).

30. Misconduct has not been defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Even the list of the acts and omissions which are to be treated as `misconduct' under clause 15(3) are not exhaustive as was observed by Mr. Justice Inamullah Khan, the first Chairman of this Tribunal in the case of Opal Laboratories Ltd., Karachi v. Workers Union 1972 PLC page

83. Reference may also be made to the observations in Pearce v. Foster (1886) 17 QBD 536 which was referred to therein. I will reproduce the following passage: "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial to the interest or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." The Banks prosper and fall, apart from other things, on their goodwill and reputation. They can ill‑afford to have within their fold employees indulging in unsavoury activities and mirky deals. So much remains unexplained and which is unexplainable. I have no hesitation in holding that the Enquiry Officer was totally justified in holding that the guilt against the appellant has been proved so far as this aspect of the matter was concerned.

31. As a result the order of the learned Presiding Officer Labour Court, reinstating the petitioner is reversed, and the Appeal No. 401 of 1991 calling in question the said order is allowed. The appeal filed by the petitioner for the refusal of the back benefits is dismissed. Order accordingly. A.A./2096/Lb.S Order accordingly