1988 PLP 626 (PLC(CS))

1985 P L C 1053 rel. Zaman Qureshi for Appellant. Mian Irshad Ali for Respondent. Date of hearing: 23rd April, 1986. This is an appeal challenging the decision dated 8‑12‑1984, recorded by the learned Presiding Officer, Punjab Labour Court No.7, Gujranwala whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

2. There were two allegations against the appellant. The first allegation was that he destroyed the invoice and thus, embezzled Rs.200 which were subsequently deposited by him. The other allegation is that the cash of Rs.35,500 was delivered to the appellant by a customer alongwith pay‑in‑slip, wherein the amount was wrongly entered as Rs.30,

500. The complainant after delivering the amount left but came back after a short time coming to know that he had delivered the amount of Rs.35,500 instead of Rs.30,

500. He informed the appellant that he had paid Rs.5,000 in excess but the appellant instead of returning the amount replied that the cash would be checked and only then it‑ could be found whether it was in excess or not. The second officer then checked the cash and found that Rs.5,000 were in excess which were deposited in the account of the customer. The case of the bank was that with dishonest intention the appellant had told the complainant that after checking the whole cash it would be found whether any cash was in excess. During inquiry Muhammad Hanif, complainant, who had delivered Rs.35,500 to the appellant appeared as P.W.1. His evidence is the same as narrated in the facts of the case. He, however, added that when he again went to the Bank after about 15 minutes and told the appellant that he had delivered excessive cash and asked for appellant to count the cash, he` said that the cash was correct, but when he reported to the Manager and he asked the appellant to check the cash, the appellant after checking the cash said that Rs.500 only were in excess but when the witness insisted upon that he had paid Rs.5,000 in excess, the cash was again checked by the appellant and he announced that Rs.1,500 were in excess and for the third time said that Rs.4,500 were in excess, whereupon the second officer himself checked the cash and found that Rs.5,000 were in excess. Muhammad Zubair P.W.2 stated only this much that he was directed to hold inquiry against the appellant which he held and 'found that the allegations made by Subedar Mehr Muhammad was correct. P.W.2 deposed about the charge of embezzlement of Rs.200. Subedar Mehr Muhammad deposed that he had sent three complaints which were quite correct and that he had no enmity with the appellant. He, however, did not disclose what were his complaints. In cross‑examination he said that he had not seen the appellant destroying the invoice and that the appellant had assured him that he should not bother, copy of the invoice would be prepared and that his amount had been deposited. So far as the charge of temporary embezzlement of Rs.5,000 in concerned, the second officer who is alleged to have counted the cash and found that Rs.5,000 were in excess was not examined at the inquiry with the result that so far as this allegation is concerned, the evidence of the complainant only is on the record. There is no evidence that the appellant had, on the back of the deposit form of Rs.35,500 made interpolation in the details of the currency notes. No doubt, the document on the record shows that there is an interpolation but since there is no evidence that this was made by the appellant, it cannot be said that with any dishonest intention, the appellant had told the complainant that the cash was correct. So far as the embezzlement of Rs.200 is concerned, no witness was examined who may have brought the relevant register to show that the invoice had not been entered in it. The result is that the charges were not proved beyond any‑ shadow of doubt. So far as the embezzlement of Rs.5,000 is concerned, since the appellant put the amount received from Muhammad Hanif in the cash, therefore, the excess cash could be detected only after rechecking and recounting the whole cash. If the said complainant had told the appellant before the latter had put Rs.35,500 in the whole cash of that day that he had paid excessive cash, of course only the amount of Rs.35,500 would have been counted and checked by the appellant and it could very easily be found if the amount had been received in excess. So the answer of the appellant that only after rechecking the whole cash, it could be found whether the amount was correct or not, was not based upon any bad intention. So far as this statement of Muhammad Hanif, complainant is concerned that thrice the appellant checked the cash and first of all said that Rs.500 were in excess and second and third time said that Rs.1,500 and Rs.4,500, respectively were in excess, there is no corroborative evidence, inasmuch as, as mentioned above, the second officer was not examined. The learned I lower Court did not go deeply into the facts of the case and appears to have not minutely read the evidence produced in the inquiry, therefore, it fell in error in returning the verdict that the charges had been established against the appellant.

3. However, the 'appellant cannot be directed to be re‑instated in service, inasmuch as according to the recent ruling of Lahore High Court reported in 1985 P L C 1053, bank employees who have been removed from service cease to remain workmen. No doubt the question of jurisdiction of Labour Courts is sub judice before the Supreme Court, but unless the ruling cited above is set aside by the Supreme Court, it remains in the field and is to be followed since the decisions and orders passed by this Tribunal and the Labour Courts are subject to the writ jurisdiction of Lahore High Court.

4. As a result of the observations made above, I hold that the learned lower Court had no jurisdiction and thus, modifying the impugned decision of the learned lower Court, direct the return of the grievance petition to the appellant for presentation to the proper forum on the condition that if the Supreme Court happens to hold that the Labour Courts have jurisdiction in such cases, the grievance petition of the appellant shall stand accepted and he re‑instated in service without back benefits. The appellant is not entitled to back benefits, inasmuch as he did not assert that he remained jobless after his dismissal from service. A.E. /10/Lb.P?????????????????????????????????????????????????????????????? Orders accordingly.