1995 PLP 690 (SCMR)

SALEEM AKHTAR, J.‑‑‑The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court of Sindh, whereby Constitution petition filed by the petitioner challenging the order of the Chairman, Sindh Labour Appellate Tribunal holding the dismissal of respondent No.3 from service as illegal, was dismissed.

2. Respondent No.3 was employed with the petitioners as a Messenger. On information being received that he has obtained money from customers, misappropriated it and made false entries in the Pass Book, a complaint was also lodged with the F.I.A. The petitioner after investigation, charge‑sheeted respondent No. 3 on 27‑1‑1988. An Enquiry Officer was appointed, who after examining the witnesses and recording the statement of respondent No.3, found him guilty. Consequently the petitioner dismissed respondent No.3 by order dated 20th June, 1988, which was communicated to respondent No.3 by office order dated 5th July, 1988. As respondent No.3 did not succeed in his departmental appeal, grievance notice dated 6‑8‑1990 was served and receiving no reply, he filed application under section 25‑A of I.R.O. before the Labour Court. The learned Labour Court by order dated 10‑10‑1989 allowed the application holding that the charge‑sheet was time‑barred, the customers whose money was embezzled were not produced before the Court and embezzlement has not been proved. The petitioner filed` appeal before the Labour Appellate Tribunal, which was dismissed on 15‑1‑1990. It was held that the petitioner had initiated enquiry proceeding against respondent No. 3 under the Rules of 1980 which was not valid and operative and in fact Rules of 1973 should have been invoked. The petitioner challenged this judgment in the Constitution petition which was dismissed by the impugned judgment.

3. It seems that during the pendency of the Constitution petition, respondent No.3 was prosecuted and convicted by the Special Court (Offences in Banks) at Karachi. He was found guilty of offence under section 406, P.P.C. and sentenced to undergo R.I. for one year to pay a fine of Rs.2,000 or in default of payment of fine to. undergo further R.I. for 3 months. It was further observed that lenient view had been taken as respondent No.3 had returned the money to the customers after the fraud was detected. Respondent No. 3 filed an appeal against his conviction which was dismissed but while, maintaining the conviction, the sentence was reduced to the period already undergone by him. The sentence of payment of fine was, however, maintained. Thereafter, on 2nd January, 1992, respondent No. 3 was dismissed on account of his conviction by the Special Court (Offences in Banks) at Karachi, ion charges of misappropriation. It seems that these facts were not brought` to the notice of the learned Judges of the High Court during hearing.

4. Mr. Noor Muhammad, the learned ASC for the petitioner contended that mere mention of Rules of 1980 without causing any prejudice to respondent No.3 during enquiry, as the provisions regarding enquiry and punishment in the Rules of 1973 and Rules of 1980, are substantially same, the enquiry proceeding could not be held to have been vitiated. In this regard, the learned counsel has referred to A. Ghani Sayeed v. National Bank of Pakistan (1989 PLC (C.S.) 249), in which the Division Bench, before which similar question came up for consideration, observed as follows:‑‑ "A perusal of both the Rules will show that the procedure for inquiry and the punishment is materially the same. There is no material difference in these provisions which prejudicially affects any vested right or interest of the petitioner. The petitioner also did not take objection to the applicability of Rules of 1980 at the time when the charge‑sheet was served and inquiry was conducted. In our view as the new rules do not in any manner prejudice the petitioner's vested right nor do they enforce any procedure to the disadvantage of the petitioner and as no objection was raised by the petitioner at any stage before filing this petition, now merely on the basis of change of Rules, it cannot be held that the entire proceedings have vitiated."

5. The learned Judges of the High Court have, however, relied on National Bank of Pakistan v. Sindh Labour Appellate Tribunal etc. (1990 PLC 197), where the following observation was made:‑‑ "It is an admitted position that the action has not been taken under the National Bank of Pakistan (Staff) Service Rules of 1980 which we have already held above are not statutory Rules but can at the most be construed as departmental instructions. Thus, the action initiated against the respondents by the petitioner, from the very inception, that is, the issuance of charge‑sheet and all subsequent proceedings are without lawful authority." There seems to be a conflict of opinion on this issue and requires consideration.

6. The learned counsel further contended that in view of Trustees of the Port of Karachi Muhammad Saleem (1994 SCMR 2213), as dismissal of respondent No. 3 from service had no connection with or as a consequence of an industrial dispute nor his dismissal had led to such a dispute, he is not covered by the definition of "worker" as provided by section 2(xxviii) of industrial Relations, Ordinance and, therefore, the petition under section 25‑A was not maintainable. This contention was not accepted by the High Court and reference has been made to Trustees of Port of Karachi v. Abdul Ghani (1983 SCMR 769).

7. The learned counsel further contended that there was enough material on record to prove embezzlement and misconduct, which has been ignored by all the Courts bolt. Leave is granted to consider these questions. The operation of the impugned order is stayed. The petitioner shall deposit the salary of respondents, No. 3 from 2‑1‑1992 to 31‑1‑1995 within four weeks and continue to deposit future salary regularly on or before 10th of each successive month in the High Court of Sindh till the final disposal of the appeal. The Nazir of the High Court shall invest the salary so deposited in Defence Saving Certificates. Respondent No. 3 will not be allowed to withdraw the money deposited by the petitioner. A.A./N‑412/S ???????????????????????????????????????????????????????????????????????????????????? Leave granted.