1987 PLP 863 (PLC)

M.S.H. QURAISHI (CHAIRMAN).--This appeal preferred by Messrs Habib Bank Limited, is directed against the Order of the Senior Member of this Commission dated 10-11-1986 setting aside the dismissal of Nazar Hussain Alvi, the respondent from service and allowing him certain consequential benefits in a petition filed under section 25-A of the Industrial Relations Ordinance, 1969.

2. The facts briefly stated, are that Nazar Hussain Alvi, who was an Assistant in the Appellant Bank was found to have withdrawn Rs.1,800 from Account No. SB-363 of a deceased person namely, Dilbar Hussain on 4-4-1981 through Cheque No. 985726 bearing forged signature of the said deceased account-holder. The forgery was suspected to be in the handwriting of the respondent. When asked, he admitted his guilt in writing twice, first on 8-7-1981 and again on 21-7-1981, and prayed for forgiveness. A show-cause notice was given to him on 6-8-1981 which was followed by an enquiry notice sent to him on 26-9-1981. He did not participate in the enquiry, which thus proceeded ex parte and ended in a finding of guilty against him, vide report of the Inquiry Officer dated 4-10-1981. A second show -cause notice was given to him on 2-2-1982 to which he filed reply on 11-2-1982, but as the same was not considered satisfactory, he was dismissed from service of the Bank on 3-5-1982.

3. The respondent filed a Departmental appeal which having failed on 30-6-1982. he gave a grievance notice and upon rejection of the same on 7-8-1982, took the matter to the Punjab Labour Court and got an order in his favour on 22-2-1984. The Bank's appeal before the Punjab Labour Appellate Tribunal was, however, accepted on 29-4-1986 on the ground that the Labour Court had no jurisdiction. The respondent, thereupon, invoked the jurisdiction of this Commission by moving the petition under section 25-A of the I. R.O., 1969 on 29-4-1986.

4. The case of the respondent was that he had been denied an opportunity to prove his innocence; in that he had not been served with the notice of enquiry. The Bank's case was that the respondent had unauthorisedly absented himself from duty at the time of enquiry and that a notice duly registered had been sent to his home address, the delivery of which had not been taken either by the respondent or the members of his family. After examining the evidence, the learned Senior Member came to the view that the notice of enquiry had in fact not been served on the respondent, that it was the duty of the Bank to have attempted fresh service on the respondent and that consequently he had been condemned unheard. He also relied upon the findings reaching the Labour Court and the Labour Appellate Tribunal on merits of the case and accordingly, by the impugned order, set aside the dismissal order and directed his re-instatement, though without any back benefits. The learned Member went on to hold that a fresh enquiry was not warranted firstly, because of the time gap of more than 4/5 years and secondly, because of the judgments of the Labour Court and the Tribunal which had gone in favour of the respondent.

5. The Bank's case is that the respondent had been absent at the relevant time for which reasons the enquiry notice had to be sent at his home address. Even if, this be so, and the contention that he should not be allowed benefit of his own act of avoiding service, be true, the fact remains that the notice had not actually been served on the respondent and yet no effort had been made to serve him afresh or by substituted service. We are, therefore, not inclined to interfere with the finding that the enquiry had proceeded without service on the respondent. That being so, the finding of the enquiry and the consequential order of dismissal have been rightly set aside.

6. We, however, do not agree that it was a fit case for disallowing the appellant Bank to hold a fresh enquiry. The charge against the respondent is of serious nature particularly considering the fact that as an employee of the Bank, he was expected to protect the interests of the Bank's clients. As the learned Bench did not exonerate him of the charge and gave him relief only on technical ground, the time spent in the litigation occasioned by the respondent himself, should not have weighed in his favour. These are the reasons for which at the conclusion the hearing of the appeal on 2-2-1987, we made and announced" the following order:- "Heard. For reasons to be recorded later, the appeal is accepted to the extent that the impugned judgment, in so far as it has declared the ex parte enquiry proceedings to be bad in law, has set aside the dismissal order and has directed Nazar Hussain Alvi to be re-instated, is upheld, but the refusal to direct a fresh enquiry against the said Nazar Hussain Alvi, is se i aside and it is now directed that the Bank shall be free to hold a fresh enquiry against him in accordance with law and with notice to him." M.Y.H./92/Lb. N.I. Appeal accepted.