1989 PLP 837 (PLC(CS))

Shahid Hameed for Appellant. H.R. Haider for Respondent. Date of hearing: 2nd May, 1988. The appeal captioned above challenges the decision dated 9‑2‑1988 recorded by learned Presiding Officer, Punjab Labour Court No. 5, Sargodha, whereby the respondent has been directed to be reinstated in service with back benefits.

2. The facts of the case are that the respondent is a 3rd Division Matriculate and he was taken in service by the appellant considering that he had, obtained second Division. Afterwards when it was learnt that he was a 3rd Division Matriculate, verification was made and it was found that the matriculation certificate attached to the personal file of the respondent was bogus. The respondent was enquired and he disowned the matriculation certificate which was on the record and produced another certificate which admittedly is genuine in which his category is given as `D'. The appellant without holding any enquiry and giving second show‑cause notice removed the respondent from service.

3. It has been argued by the learned counsel for the appellant that after being taken in service, the respondent had by agreement of service, agreed that he could be dismissed from service immediately if he had been found to have committed misconduct. On the basis of this document learned counsel for the appellant says that the respondent has been rightly removed from service without holding enquiry. He has also said that the conditions given in the agreement of the service are based upon the service rules of the bank. Since the appellant is a nationalised bank, Wage Commission Award applied to it. According to paragraph 258(4)(5) no punishment can be awarded without charge sheeting, holding of enquiry and giving second show‑cause notice, so the services rules of the appellant bank being in contradiction of the provisions of paragraph 258 have no legal existence. The provisions of paragraph 258(4)(5), therefore, would prevail. The other argument of the learned counsel for the appellant is that the observance of sub‑paras. (4) and (5) of paragraph 258 of the Wage Commission Award was not necessary on account of the provisions of sub‑para. (6) clause (c)4 The argument has no force. Sub‑para. (6) clause (c) reads as under:‑ The provisions of rules 4 and 5 shall not apply: (c) where the employee is caught in the course of the commission of the wrongful act and the circumstances pertaining to the wrongful act are so manifest that compliance with the procedure in rules 4 and 5 would be purposeless formality. There are two ingredients of the clause. One is that the employee should have been caught red handed in the course of commission of the wrongful act and the other is that the wrongful act should be manifest so as to exclude the necessity of observing rules 4 and

5. Many years after the respondent was employed and confirmed it was learnt that he was not a second division matriculate and the matriculation certificate attached to his file was bogus. So it cannot be said that the respondent was caught red handed in the course of the commission of the wrongful act. Second condition also cannot be found in the case and requires evidence. The allegation made against the respondent as contained in the charge sheet is that he produced bogus certificate of matriculation. The allegation is not that he described himself and asserted that he was a second Division matriculate. The point whether the matriculation certificate present on the file of the respondent was produced by him was a disputed question since the respondent had disowned that certificate and has not admitted to have produced the same. It was to be proved that it was the respondent who had produced the said matriculation certificate. The officers before whom he is alleged to have produced certificate and who are alleged to have received it and had acted upon it were the witnesses and could prove this fact if enquiry had been held. So holding of enquiry in paragraph (4) and giving second show‑cause notice in paragraph (5) were necessary. The other thing is that the allegation made against the respondent did not amount to misconduct. To repeat the allegation is that he had produced bogus certificate in which he was shown as class `C' matriculate. At the time he is alleged to have produced the matriculation certificate he had not yet come in service and was not the employee of the appellant. He may be said to, have caused deception but it did not amount to misconduct. The reason is that only an employee can be said to have committed misconduct and not an outsider. At the time the respondent is alleged to have produced the certificate he had not yet come in service of the appellant but had only applied for service. Learned counsel says that since in the agreement of service which was executed by the respondent after he came in service he described himself as a second division matriculate, he committed misconduct. I am afraid the allegation made against the appellant was not that after he came in service he executed agreement of service and had described himself in it as a second division matriculate. The respondent had to face the allegations which had been made against him in the charge‑sheet and not to the ones which were not conveyed to him. So since at the time he is alleged to have produced bogus matriculation certificate he had not yet come in service it cannot be said that he committed misconduct at that time. In these circumstances there appears no scope to interfere with the decision of the learned lower Court.

4. As a result the appeal fails and is dismissed. A.E./540/Lb.P Appeal dismissed.